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2014-12-15 City Council Agenda Packet
CITY OF PALO ALTO CITY OF PALO ALTO CITY COUNCIL December 15, 2014 Special Meeting Council Chambers 5:30 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 Special Orders of the Day 1. Proclamation for Waverley Writers 5:30-6:00 PM 2. Adoption of Three Resolutions of the Council Expressing Appreciation to Arthur Keller for His Service on the Planning and Transportation Commission, to Lee Lippert for His Service on the Architectural Review Board, and to Clare Malone -Prichard for Her Service on the Architectural Review Board Council Member Questions, Comments and Announcements 6:00-6:30 PM Members of the public may not speak to the item(s) Agenda Changes, Additions and Deletions 1 December 15, 2014 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 Manager Comments 6:30-6:40 PM Oral Communications 6:40-6:55 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 6:55-7:00 PM Items will be voted on in one motion unless removed from the calendar by three Council Members. 3. Adoption of A Resolution Approving and Authorizing the City Manager to Execute a Meter Maintenance Program Agreement with the Northern California Power Agency for a Five Year Term with an Anticipated Total Cost of $45,000 4. Approve a Contract with Goodland Landscape Construction, Inc. in the Amount of $4,441,520.11; Authorize the City Manager or his Designee to Negotiate and Execute One or More Change Orders to the Contract with Goodland Landscape Construction, Inc., Not to Exceed $444,151; Approve a Contract with NOVA Partners, Inc. in the Amount of $319,880 for Construction Management Services; and Adopt a Budget Amendment Ordinance in the Total Amount of $1,343,047 to increase the El Camino Park Restoration Project by $1,343,047, offset by a $246,000 transfer from the Park Development Impact Fee Fund, a $45,000 reduction to the Bicycle and Pedestrian Transportation Projects capital project, and a reduction to the Infrastructure Reserve (IR) by $1,052,047 5. Grant of Easements to Santa Clara Valley Water District, Pacific Gas and Electric Company, City of East Palo Alto and East Palo Alto Sanitary District for the San Francisquito Creek Joint Powers Authority's (JPA) Initial Flood Protection Project (Highway 101 to San Francisco Bay) 6. Approval of Amendment One to Contract with Tandem Creative, Inc. to Extend the Contract Term Through December 31, 2016 and to Increase the Total Compensation by $220,000 from $198,000 for a Total Not to Exceed Amount of $418,000 to Provide Marketing Design Services for the Utilities Department 7. Approval of a Final Subdivision Map for the Previously Approved Mayfield Agreement Housing Project at 1451-1601 California Avenue, Including 68 Detached Single Family Residences and 112 Multi -family Condo Units. Environmental Assessment: City of Palo Alto/Stanford 2 December 15, 2014 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. Development Agreement and Lease Project Environmental Impact Report (State Clearinghouse No. 2003082103) 8. Approve a Blanket Purchase Order with Oldcastle Precast, Inc., as the City's New Standardized Supplier of Certain Equipment for the Utility's Electric Underground System, in an Annual Amount of $350,000 for a Total Purchase Amount of $1,750,000 Over the Next 4.5 Years 9. Approval of a Contract Amendment to CompuCom Systems, Inc., in the Amounts of $194,470 for Annual Microsoft Licensing True -Up, $70,147 for Office365, and $27,000 for a contract contingency - Contract C12144913; and Adoption of a Budget Amendment Ordinance in the Information Technology Fund in the Amount of $291,617 10. 2755 El Camino Real Prescreening Request: Request by Hayes Group Architects for Council Authorization to Schedule a City Council Preliminary Review ("Pre -Screening") of a proposed Rezoning from PF (Public Facility) to CC2 (Community Commercial) and amendment to the Comprehensive Plan land use designation for a vacant site at the corner of El Camino Real and Page Mill Road (the vacated VTA parking lot). 11. SECOND READING: Adoption of an Ordinance Establishing a Citywide Framework for Establishment of Neighborhood -Specific Residential Preferential Parking (RPP) Districts (First Reading: December 2, 2014 PASSED: 9-0) 12. Recommendation from Policy and Services Committee: (a) Review and Accept Inventory of Donated City Owned Properties; (b) Review and Make No Changes to Policy and Procedure 1-11 (Leased Use of City Land/Facilities) 13. Review of a Proposed Conditional Use Permit (CUP) for a Verizon Wireless Telecommunication Facility at the Palo Alto Little League Ball Field, Zoned R-1 (8000), and an Appeal of the Director's Architectural Review Approval of the Facility, an 18 -inch Diameter, 65 -foot tall Monopole/Light Pole Replacing a 12 -inch Diameter, 60 -foot Tall Light Pole, and Associated At -Grade Equipment Enclosure at 3672 Middlefield Road and Approval of CEQA Exemption 14. Adoption of a Park Improvement Ordinance Approving and Adopting a Plan for Improvements to Bowden Park 3 December 15, 2014 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. 15. Proposed Changes in Development Impact Fees: Adoption of Ordinance Amending Chapter 16.58 Implementing New Public Safety Facility and General Government Facility Impact Fees And Direction to Draft Resolution Setting Initial Impact Fee Rates at 75 Percent of Levels Identified in Nexus Study 16. Adoption of a Resolution Amending Resolution No. 9296, Adopted November 13, 2012, to Extend Statutory Exception for Soil Transfers by Truck on Oregon Expressway until September 30, 2015 17. Request for Authorization to Increase Existing Legal Services Agreements with the Law Firms of: (1) Ginn & Crosby, LLP, by an Additional $50,000 for Legal Services Relating to Construction of the Mitchell Park Library and Community Center for a Total Not to Exceed Amount of $250,000; and (2) Musick Peeler & Garrett, LLP, by an Additional $20,000 for Palo Alto Baylands Golf Course Reconfiguration Project and the San Francisquito Creek Flood Control Project for a total Not to Exceed Amount of $85,000 18. Adoption of First Amendment to the Lease with ADA's Cafe and to Modify the Term and Add $79,655 to Reimburse Tenant for Expenses Related to Completion of Mitchell Park Library and Community Center Action Items Include: Reports of Committees/Commissions, Ordinances and Resolutions, Public Hearings, Reports of Officials, Unfinished Business and Council Matters. 7:00-7:30 PM 19. PUBLIC HEARING: Approval of a New Fifty (50) Year Lease to Avenidas for City owned Property at 450 Bryant Street to Allow the Continued Use of the Building to Provide Senior Services 7:30-8:30 PM 20. Palo Alto Historical Museum's Request for Funding and Approval of Transfer of Development Rights for the Roth Building 8:30-9:30 PM 21. Approval of the Proposed Grocery Store Tenant (College Terrace Market) Within PC 5069 (College Terrace Centre) Based on the Finding that the Proposed Grocery Tenant Would Likely be Comparable in Quality of Products and Services as JJ&F as it Existed and Operated on December 7, 2009 at 2180 El Camino Real 9:30-10:00 PM 22. Policy and Services Committee Recommendation to Council for Adoption of an Ordinance Amending Chapter 9.14 (Smoking And Tobacco Regulations) of the Palo Alto Municipal Code to Establish New 4 December 15, 2014 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 Item Smoking Restrictions for Outdoor Commercial Areas, Outdoor Eating Areas, Public Events, Work Sites and Service Locations; Include Penalty Escalation for Repeat Offenders; Require Cigarette Butt Receptacles and Signage Immediately Adjacent and Within Areas Covered by the Ban; and Include E -cigarettes 10:00-10:20 PM 23. Colleagues Memo From Council Members Berman, Burt, and Klein Regarding Climate Action Plan Implementation Strategy to Reduce Use of Natural Gas and Gasoline Through "Fuel Switching" to Carbon -free Electricity 10:20-10:40 PM 24. Colleagues Memo From Vice Mayor Kniss and Council Members Holman, Klein and Price Regarding Regulation of Short-term Rentals in Residential Neighborhoods (e.g., Airbnb and Related Businesses) Inter -Governmental Legislative Affairs 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. 5 December 15, 2014 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 Standing Committee Meetings Policy and Services Committee Meeting Finance Committee Meeting City/School Meeting Schedule of Meetings Schedule of Meeting Tentative Agenda Tentative Agenda Informational Report December 16, 2014 @ 6:00 PM December 16, 2014 @ 6:00 PM December 18, 2014 © 8:30 AM Annual Review of the City's Renewable Procurement Plan, Renewable Portfolio Standard, and Carbon Neutral Electric Supplies Status Report on the Preparation of Zoning Regulations to Address Hazardous Impacts of Plating Shops and Possible Amortization Action Property Leases Entered into by City Manager Under Palo Alto Municipal Code Section 2.30.210(h), and Reported Per Section Code 2.30.710 Fiscal Year 2014/15 Update on the Infrastructure Management System Needs Assessment and Next Steps Update on Stanford University Medical Center Health & Safety Funds Discussion from 10-21-14 Policy & Services Committee Meeting City of Palo Alto Sales Tax Digest Summary Second Quarter Sales (April - June 2014) 6 December 15, 2014 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. Public Letters to Council Set 1 Set 2 Set 3 7 December 15, 2014 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 CITY OF PALO ALTO OFFICE OF THE CITY CLERK December 15, 2014 The Honorable City Council Palo Alto, California Proclamation for Waverley Writers ATTACHMENTS: • Attachment A: Proclamation for Waverley Writers (DOC) Department Head: Beth Minor, Acting City Clerk Page 2 CITY OF PALO ALTO PROCLAMATION WAVERLEY WRITERS WHEREAS, Waverley Writers is a group of poets in Palo Alto, California that was originally founded by Dave Berry, Bob Evans and Katie Reeder in 1981 and celebrated its 25th anniversary in 2005; the group has a 33 -year history in our community; and WHEREAS, Waverley Writers, a community of poets and friends, gather on the first Friday of each month, except summer months, at the Friends Meeting House on Colorado Avenue, continuing a rich history of readings, open "mics" and events focused on providing opportunities for poets to "own" and deliver their poems. Palo Altans hold these free and open readings and, indeed, welcome the larger community of poets and non -poets from throughout the Bay Area; and WHEREAS, Waverley Writers conducts readings, conferences, and "critiquing workshops" by highlighting active listening and focusing on clear and supportive comments. By resisting defining poetry and having a less formal process, any style or form of poetry is welcome. Many participants have published works; and WHEREAS, Waverley Writers publishes bi-monthly issues of Fresh Hot Bread, a collection of poems and artwork submitted by its members; and WHEREAS, the phrase Fresh Hot Bread is from the following quote by Pablo Neruda: "On our earth, before writing was invented, poetry flourished. That is why we know that poetry is like bread; it should be shared by all, by scholars and by peasants, by all our vast, incredible, extraordinary family of man"; and WHEREAS, Waverley Writers participants enhance the craft and art of poetry by providing many ways for poets to share and explore the arts, refining their work over time, and demonstrating a strong commitment to "Poetry and Performance." NOW, THEREFORE, I, Nancy Shepherd, Mayor of the City of Palo Alto, on behalf of the City Council do issue this proclamation and express on behalf of the entire community to Waverley Writers participants for their devotion and enhancement of poetry in all its forms and styles through their creativity, exploration, and contributions. Presented: December 15, 2014 Nancy Shepherd Mayor CITY OF PALO ALTO CITY OF PALO ALTO OFFICE OF THE CITY CLERK December 15, 2014 The Honorable City Council Palo Alto, California Adoption of Three Resolutions of the Council Expressing Appreciation to Arthur Keller for His Service on the Planning and Transportation Commission, to Lee Lippert for His Service on the Architectural Review Board, and to Clare Malone -Prichard for Her Service on the Architectural Review Board ATTACHMENTS: • Attachment A: Resolution Expressing Appreciation to Arthur Keller for His Service on the Planning and Transportation Commission (DOC) • Attachment B: Resolution Expressing Appreciation to Lee Lippert for His Service on the Architectural Review Board (DOC) • Attachment C: Resolution Expressing Appreciation to Clare Malone -Prichard for Her Service on the Architectural Review Board (DOC) Department Head: Beth Minor, Acting City Clerk Page 2 RESOLUTION OF THE COUNCIL OF THE CITY OF PALO ALTO EXPRESSING APPRECIATION TO ARTHUR E. KELLER WHEREAS, Arthur E. Keller has served the City of Palo Alto as a member of the Planning and Transportation Commission for over eight years from August, 2006 to November, 2014 and as Vice Chair from 2013 to 2014, and served with distinctive energy, passion, dedication, intelligence and good humor; and WHEREAS, Arthur E. Keller has actively provided insightful input and thorough analysis of land use policy recommendations and contributed to the Planning and Transportation Commission's efforts to update the 1998 Comprehensive Plan; and WHEREAS, Arthur E. Keller worked diligently on the Planning and Transportation Commission's subcommittee to update the draft Transportation Element; and WHEREAS, Arthur E. Keller was passionate about principles of good urban design and environmental sustainability and community planning, using his background as a computer scientist to apply data analysis to public policy and recommendations made by the Planning and Transportation Commission; and WHEREAS, Arthur E. Keller was faithful to his roots in his neighborhood association, always sensitive to, and sometimes skeptical about the potential impact of development on quality of life and the character of Palo Alto's residential neighborhoods; and WHEREAS, Arthur E. Keller exemplified the values of public service while he maintained an active professional and business career as a computer science researcher, expert witness for intellectual property litigation, advisor to high-tech start-ups and leader of the IEEE Voting Systems Standards Committee. NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of Palo Alto hereby gratefully records and extends their sincere appreciation and the appreciation of the community to Arthur E. Keller for his faithful and excellent service rendered to the City of Palo Alto. INTRODUCED AND PASSED: December 15, 2014 ATTEST: APPROVED: City Clerk Mayor APPROVED AS TO FORM: City Attorney City Manager RESOLUTION OF THE COUNCIL OF THE CITY OF PALO ALTO EXPRESSING APPRECIATION TO LEE LIPPERT WHEREAS, Lee Lippert served on the Planning and Transportation Commission (PTC) from 2004 through 2012, and as Vice Chair in 2007 and 2011; he served on the Architectural Review Board (ARB), from January 2012 until his term expired in 2014, and has served on several committees including the ZOU Design and Environment Committee from 2004 to 2005; the Library Bond Stakeholders Committee from 2009 to 2011; as the PTC Liaison to Palo Alto Housing Corporation from 2009 to 2010; the Rail Corridor from 2010 to 2011; and as a committee member of the SOFA II and Public Safety Building Committees from 1997 to 1999 and 2000 to 2002; and WHEREAS, Lee Lippert contributed his architectural design knowledge and ideas by sharing his understanding of growth and demand on issues, and his comprehensive approach to project reviews; and WHEREAS, Lee Lippert provided insightful input and thorough analysis on land use policy recommendations, including the Baylands, Bicycle & Pedestrian Plans, the Comprehensive Plan, Housing and Land Use Element updates, California Avenue, traffic calming and improvement projects, Lytton Gateway PC, Alma Plaza, Stanford University Medical Center Facilities, Campus for Jewish Life, Edgewood Shopping Center, Elk's Club, the Waste Water Treatment Plant and Emergency Water Supply Reservoir, Mayfield Development Agreement, Rail Corridor Study, Zoning Ordinance updates, California Avenue Streetscape Improvements, low income housing projects at Palo Alto Commons, 801 Alma Street (Eden Housing), and the Tree House (Palo Alto Housing Corporation); and WHEREAS, Lee Lippert brought his expertise and academic training in architecture from Rhode Island School of Design and has incorporated his years of practical experience as an architect to suggest creative and pragmatic solutions that assisted property owners in developing their properties. NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of Palo Alto hereby gratefully records and extends their sincere appreciation, and that of the community to Lee Lippert for his excellent service rendered. INTRODUCED AND PASSED: December 15, 2014 ATTEST: APPROVED: City Clerk Mayor APPROVED AS TO FORM: City Attorney City Manager RESOLUTION OF THE COUNCIL OF THE CITY OF PALO ALTO EXPRESSING APPRECIATION TO CLARE MALONE PRICHARD WHEREAS, Clare Malone Prichard has served as a member of the Architectural Review Board for more than nine years and provided excellent leadership in her roles as Chair for three years and Vice Chair for two years; and WHEREAS, Clare Malone Prichard gave tirelessly of her time and talents to guide the development of the community in order to ensure a high standard of development was achieved and contributed to the establishment of the City's Green Building Ordinance and the Architectural Review Board's Awards Program; and WHEREAS, Clare Malone Prichard brought a comprehensive approach to project review, she used her planning skills, architectural knowledge and urban design ideas, combined with her knowledge and understanding of Palo Alto, to improve many important and highly visible mixed use, commercial and residential projects; and WHEREAS, Clare Malone Prichard used her expertise and academic training in architecture from the University of California, Berkeley, and her practical experience as an architect to suggest creative and pragmatic solutions to assist property owners in the development of their commercial and residential properties; and WHEREAS, the City of Palo Alto acknowledges and thanks Clare Malone Prichard for her personal commitment and civic pride, her significant personal efforts and vision, and her substantial dedication as a member of the Architectural Review Board. NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of Palo Alto hereby gratefully records and extends their sincere appreciation to Clare Malone Prichard for her faithful and excellent services rendered. INTRODUCED AND PASSED: December 15, 2014 ATTEST: APPROVED: City Clerk Mayor APPROVED AS TO FORM: City Attorney City Manager CITY OF PALO ALTO City of Palo Alto (ID # 5280) City Council Staff Report Report Type: Consent Calendar Meeting Date: 12/15/2014 Summary Title: NCPA Meter Maintenance Program Agreement Title: Adoption of A Resolution Approving and Authorizing the City Manager to Execute a Meter Maintenance Program Agreement with the Northern California Power Agency for a Five Year Term with an Anticipated Total Cost of $45,000 From: City Manager Lead Department: Utilities Recommendation Staff recommends that the City Council adopt the attached resolution (Attachment A) to approve and delegate authority to the City Manager, or his designee, to sign the Northern California Power Agency (NCPA) Meter Maintenance Program Agreement (Attachment B) and any subsequent amendments. Executive Summary Staff recommends continuance of meter maintenance services and support from NCPA on the City's four meters used to report citywide electric usage data for billing and settlements with the California Independent System Operator (CAISO) Corporation. Execution of the Meter Maintenance Program Agreement will ensure that NCPA continues to provide cost-effective, coordinated and responsive service to maintain meters and metering equipment to the City. Such services are necessary to remain compliant with the rules and conditions set forth in the CAISO Tariff and the Metered Subsystem Aggregator Agreement (MSSA Agreement) between the City and NCPA. Currently, the City does not have staff resources qualified to maintain CAISO-quality meters. If the City were to secure these services independently rather than enter into the recommended contract with NCPA, staff expects that the cost would be higher and that additional staff time would be required to seek a qualified service provider and negotiate an agreement. The expected cost to the City of operating under the Meter Maintenance Program Agreement is approximately $8,950 annually. City of Palo Alto Page 1 Background The City of Palo Alto (City) is a member of NCPA. NCPA provides a host of services to the City's electric utility including acting as the City's Metered Subsystem Aggregator and Scheduling Coordinator. As such, NCPA schedules the City's electric load and resources within the CAISO balancing authority. NCPA is able to provide meter maintenance services to the City and other NCPA members through an agreement it has with Trimark Associates, Inc. (Trimark). The original agreement between NCPA and Trimark expires at the end of calendar year 2014. At its October 23, 2014 meeting, the NCPA Commission approved a new five-year General Services Agreement between NCPA and Trimark to be effective January 2015. Additionally, the NCPA Commission approved a new Meter Maintenance Program Agreement between NCPA and Contracting Members (see Attachment C, the NCPA Commission Resolution). In December 2011, through Resolution No. 9212, Council authorized the City Manager, or his designee, to execute a Meter Maintenance Program Agreement with NCPA, enabling the City to receive cost-effective meter maintenance services on its four CAISO meters as required by the CAISO Tariff and MSSA Agreement. The City Manager was further delegated the authority to execute subsequent amendments to the NCPA Meter Maintenance Program Agreement. Although Council delegated to the City Manager the authority to execute amendments to the existing NCPA Meter Maintenance Program Agreement, Resolution 9212 did not give the City Manager the authority to enter into the new agreement with NCPA for meter maintenance services that is now contemplated as a companion to the new General Services Agreement NCPA has just entered into with Trimark. As such, Council approval is required for the new Meter Maintenance Program Agreement recommended by staff here. Discussion Currently, the City has three primary point -of -interconnection meters and one registered generating meter, which is associated with the City's approximately four -megawatt, City - Owned Back-up Generator (COBUG). These four CAISO quality meters are used to record the City's entire electric load and communicate with the CAISO for the purpose of billing, settlements and outages. The City's four CAISO quality meters differ from the City's roughly 27,000 electric meters located at customer sites, in that the CAISO meters are calibrated to a higher standard for accuracy; are able to record data in fifteen minute intervals; have two-way communication features, allowing for real-time interface; and must meet certain reliability requirements. The CAISO maintains a list of certified contractors who are able to install and maintain CAISO quality meters. Trimark is one of a few approved contractors. Since 2004, NCPA has provided meter maintenance services for the City's four CAISO quality meters. This arrangement benefits the City, as the City lacks the in-house expertise and resources to maintain the meters. The arrangement also eliminates the need for the City to carry an inventory of CAISO quality meters in the event of equipment failure and the City of Palo Alto Page 2 City is not required to have staff on -call to service these meters. Further, because NCPA provides meter maintenance services to several other NCPA members, including the cities of Alameda, Biggs, Gridley, Healdsburg, Oakland, Ukiah and Lodi, and Plumas Sierra Rural Electric Cooperative, economies of scale are gained through the arrangement; therefore, NCPA is able to provide the service at a cost lower than the City could achieve on its own. Specific meter maintenance activities to be provided to the City by a third -party (Trimark) under the auspices of the proposed Meter Maintenance Program Agreement between the City and NCPA include: routine maintenance, repair, testing, certification, installation, replacement and removal of any necessary equipment. Attachment D contains the General Services Agreement between NCPA and Trimark along with the exhibits related to the scope of work, compensation and CAISO quality meter inventory and cost per participating member. NCPA will execute the General Services Agreement with Trimark, once all participating NCPA members have fully executed the NCPA Meter Maintenance Program Agreement. The term of the Meter Maintenance Program Agreement is set to five -years to be consistent with the term of the underlying General Services Agreement between NCPA and Trimark, where Trimark is the third -party vendor delivering services to the City under the auspices of the Meter Maintenance Program Agreement between NCPA and the City. Resource Impact The estimated cost of servicing the City's meters is $8,950 annually or $44,750 over the five- year term. Sufficient funds to cover the costs associated with the Meter Maintenance Program Agreement are included in the Electric Fund's FY 2015 Operating Budget. For subsequent fiscal years, the contract expenditure is subject to City Council approval of annual appropriations in the Electric Fund. Policy Implications Palo Alto can bypass its own competitive solicitation requirements and utilize an NCPA contract, where NCPA has used a solicitation method that is "substantially similar" to Palo Alto's solicitation methods. (See PAMC Section 2.30.360(k)). NCPA, like Palo Alto, has specific purchasing requirements and purchasing manual guidelines that govern the manner and methods by which work from third -party vendors may be solicited by NCPA. NCPA relied on its own purchasing requirements and manual to select Trimark using NCPA's sole source process. NCPA's sole source designation process, while based on different and more flexible factors than Palo Alto's, does follow a substantially similar process to the City's for identifying and documenting the specific circumstances that justify NCPA's decision to rely on a sole source exemption from competitive solicitation. Like Palo Alto would if it was considering whether to grant a sole source exemption for one of the City's contracts, NCPA adhered to NCPA's own purchasing requirements and manual and documented its justification for its desired sole source designation when it selected Trimark as its vendor to provide meter maintenance services to Palo Alto and other NCPA members under the auspices of the Meter Maintenance Program Agreement between NCPA and its members, including Palo Alto. City of Palo Alto Page 3 The recommendation supports the Council -approved 2011 Utilities Strategic Plan objective to manage supply costs. Environmental Analysis 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. Attachments: • Attachment A: DRAFT Resolution NCPA Meter Maintenance Program Agreement(PDF) • Attachment B: NCPA Meter Maintenance Program Agreement 2015 (PDF) • Attachment C: NCPA Commission Resolution 14-76 (PDF) • Attachment D: NCPA General Services Agreement 2015 (Trimark) (PDF) City of Palo Alto Page 4 ATTACHMENT A Not Yet Approved Resolution No. Resolution of the Council of the City of Palo Alto Approving the Execution of the Northern California Power Agency Meter Maintenance Program Agreement A. The City of Palo Alto ("City"), a municipal and chartered city is a member of the Northern California Power Agency ("NCPA"); and B. NCPA, acting on behalf of the City, schedules the City's electric load and resources within the California Independent System Operator Corporation ("CAISO") balancing authority pursuant to the terms of the CAISO Tariff; and C. The City operates as a metered subsystem located within the CAISO, and is a party to the Second Amended and Restated NCPA Metered Subsystem Aggregator Agreement ("MSSA Agreement"), as it may be amended from time to time, therefore City is obligated to comply with certain provisions of the CAISO Tariff applicable to metering equipment, including but not limited to, maintenance, outages, testing and certification; and D. NCPA has developed the Meter Maintenance Program Agreement under which NCPA will acquire services from a third party vendor, Trimark Associates Inc. ("Trimark"), pursuant to the General Services Agreement between NCPA and Trimark ("Services Agreement"), on behalf of the City, to perform meter maintenance activities; and E. The Services Agreement provides for maintenance, repair, certification, testing, installation, replacement and removal of meters and metering equipment located at the City's points -of -interconnection with the CAISO and the City's Cooperatively Owned Back-up Generators ("COBUG") facility; and F. Pursuant to the Meter Maintenance Program Agreement, NCPA will manage the coordination of meter maintenance and repair activities between the City and Trimark; and G. The Meter Maintenance Program Agreement will benefit the City by providing a cost effective, coordinated and responsive service to maintain meters and metering equipment; and H. Costs for services provided to the City under the Meter Maintenance Program Agreement will be based on the compensation schedules and hourly fees specified in the NCPA General Services Agreement with Trimark; and NOW, THEREFORE, the Council of the City of Palo Alto does hereby RESOLVE as follows: SECTION 1. The Council hereby authorizes the City Manager, or his designee, to 1 111108 dm 0073652 execute the NCPA Meter Maintenance Program Agreement and to execute subsequent amendments to the NCPA Meter Maintenance Program Agreement, as needed, to continue to receive meter maintenance support services through NCPA and/or vendors contracted through NCPA in an effort to remain compliant with the rules of the CAISO Tariff and the MSSA Agreement. // // // // // // // // // // // // 2 111108 dm 0073652 Not Yet Approved 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: Senior Deputy City Attorney City Manager Director of Utilities Director of Administrative Services 3 111108 dm 0073652 ATTACHMENT B NC PA NORTHERN CAEIfORNIA POWER AGENCY METER MAINTENANCE PROGRAM AGREEMENT BETWEEN NORTHERN CALIFORNIA POWER AGENCY AND CONTRACTING MEMBERS This Meter Maintenance Program Agreement ("Agreement") is made by and between the Northern California Power Agency ("NCPA"), a joint public powers agency with offices located at 651 Commerce Drive, Roseville, California and City of Alameda, City of Biggs, City of Gridley, City of Healdsburg, City of Lodi, City of Lompoc, City of Palo Alto, Plumas Sierra Rural Electric Cooperative, City of Oakland (acting through its Board of Port Commissioners) and City of Ukiah, who each are NCPA Members (each being a "Contracting Member" and jointly referred to as "Contracting Members"). NCPA and the Contracting Members are together sometimes referred to herein individually as a "Party" and collectively as the "Parties". This Agreement is made as of , 20 (the "Effective Date") in Roseville, California. Section 1. RECITALS This Agreement is entered into based on the following facts, among others: 1.1 NCPA is a public agency created by a joint powers agreement established under California law for the purpose of assisting its members in the efficient use of their common powers. 1.2 Contracting Members are engaged in, among other things, transmitting and distributing electric power within their respective corporate limits. Contracting Members are also members of NCPA. Contracting Members desire that NCPA provide Contracting Members with the Services ("Services") described in this Agreement. 1.3 Article III , Section 3 of the "Amended and Restated Northern California Power Agency Joint Powers Agreement" (as amended and effective January 1, 2008) (hereinafter "JPA") entitled "Powers and Functions" provides that none of the debts, liabilities or obligations of NCPA shall be the debts, liabilities or obligations of any of the members of NCPA unless assumed in a particular case by resolution of the governing body of the member to be charged." Notwithstanding the foregoing, Article V, Section 1 of the JPA entitled "General Provisions" provides that "[t]he governing Commission of NCPA is authorized to procure public liability and other insurance as it deems advisable to protect NCPA and each of the parties hereto, charging the cost thereof to the operating costs of NCPA." 1.4 Contracting Members desire to secure Services under this Agreement in a manner that balances their interests and the interests of other NCPA Members with the ongoing financial viability and professional responsibilities of NCPA. Accordingly, Contracting Members desire to secure Services under this Agreement by accepting a limited insurance based recourse against NCPA, with the option of procuring additional insurance at Contracting Members' sole expense, thereby insuring that NCPA will substantially limit its risk for the provision of such Services which, in turn, allocates risks back to the Contracting Members in the event NCPA is not adequately insured. 1 Meter Maintenance Program Agreement 1.5 Contracting Members operate as Metered Subsystems located within the CAISO Balancing Authority Area, and are parties to the Third Amended and Restated NCPA MSS Aggregator Agreement, as it may be amended from time to time; therefore Contracting Members have obligations to comply with certain provisions of the CAISO tariff applicable to metering equipment, including but not limited to, maintenance, outages, testing, and certification. 1.6 NCPA will provide Services to Contracting Members under this Agreement by acquiring services from Trimark Associates, Inc. ("Contractor") pursuant to the General Services Agreement Between the Northern California Power Agency and Trimark Associates, Inc. dated as of , 20 ("Service Agreement"). 1.7 Contracting Members desire to secure NCPA's Services under this Agreement to manage the maintenance, repair, testing, certification, installation, replacement, and removal of the metering equipment listed in Exhibit C of the Service Agreement, which is owned or operated by Contracting Members. NOW THEREFORE, in consideration of the mutual covenants and promises set forth, NCPA and Contracting Members agree as follows: Section 2. DEFINITIONS Whenever used in this Agreement with initial capitalization, these terms shall have the following meanings as applicable, whether in the singular or plural: 2.1 "All Resources Bill" shall mean the single, combined monthly bill from NCPA to a NCPA member, with respect to all NCPA programs and projects. 2.2 "Annual Budget" shall mean the budget for the ensuing Fiscal Year adopted by the Commission, as may be amended from time to time. 2.3 "Balancing Authority" shall mean the responsible entity that integrates resource plans ahead of time, maintains load -interchange -generation balance within a Balancing Authority Area, and supports interconnection frequency in real time. 2.4 "Balancing Authority Area" shall mean the geographic territory over which a Balancing Authority exercises jurisdiction. 2.5 "CAISO" shall mean California Independent System Operator, a non-profit benefit corporation acting as a Balancing Authority and responsible for the provision of fair and open transmission access, and maintaining reliable and efficient operation of the grid, within portions of the State of California, or its successor Balancing Authority. 2.6 "Commission" shall mean the NCPA Commission. 2.7 "Contractor" shall mean Trimark Associates, Inc., the counterparty to NCPA on the Service Agreement. 2 Meter Maintenance Program Agreement 2.8 "Fiscal Year" shall mean the NCPA fiscal year, a twelve month period beginning July 1 and ending on the next following June 30. 2.9 "Good Utility Practice" shall mean any of the practices, methods and acts engaged in or approved by a significant portion of the electric utility industry during the relevant time period, or any of the practices, methods and acts which, in the exercise of reasonable judgment in light of the facts known at the time the decision was made, could have been expected to accomplish the desired result of the lowest reasonable cost consistent with good business practices, reliability, safety and expedition. Good Utility Practice is not intended to be limited to the optimum practice, method or act to the exclusion of all others, but rather to be acceptable practices, methods, or acts generally accepted in the region and consistently adhered to by the electric utility industry. 2.10 "Metered Subsystem" or "MSS" shall mean a geographically contiguous electrical system, recognized by CAISO as a MSS, which operates as a publicly owned utility, state agency or federal power marketing authority within the Balancing Authority Area in which all electrical flows into or out of the MSS are measured by CAISO certified revenue quality meters at each interface point with the CAISO controlled grid, and all generating units or resources, including proxy demand resources internal to the MSS, measured by CAISO certified revenue quality meters, and which is operated in accordance with a CAISO approved MSS agreement. 2.11 "NCPA Member" or "Member" shall mean a signatory to the JPA or those agencies which have executed an Associate Member Agreement with NCPA. 2.12 "Scheduling Coordinator" shall mean an entity certified by the CAISO to transact in the CAISO market. 2.13 "Service Agreement" shall mean the General Services Agreement Between Northern California Power Agency and Trimark Associates, Inc., dated , 20 , for the provision of metering equipment maintenance. 2.14 "Uncontrollable Force" shall mean any act of God, labor disturbance, act of the public enemy, war, insurrection, riot, fire, storm, flood, earthquake, explosion, any curtailment, order, regulation or restriction imposed by governmental, military or lawfully established civilian authorities or any other cause beyond the reasonable control of the Party claiming Uncontrollable Force which could not be avoided through the exercise of Good Utility Practice. Section 3. SERVICES TO BE PROVIDED; AUTHORIZED REPRESENTATIVES; STANDARD OF PERFORMANCE 3.1 Services. This Agreement is entered into by the Parties in order for NCPA to provide services to Contracting Members as described in the Scope of Services, Exhibit A attached hereto and incorporated herein. ("Services"). 3.2 Authorized Representatives. The Authorized Representatives of the Parties for contract administration purposes under this Agreement are listed in Section 12.8. 3 Meter Maintenance Program Agreement No Authorized Representative is authorized to amend any provision of this Agreement except in accordance with Section 12.16. 3.3 Standard of Performance. NCPA will perform and or oversee, as applicable, the Services using that level of skill and attention reasonably required to complete the Services in a competent and timely manner. 3.4 Assignment of Personnel. NCPA shall assign only competent personnel to perform Services pursuant to this Agreement. 3.5 Time. NCPA shall devote such time to the performance of Services pursuant to this Agreement as may be reasonably necessary to meet the standard of performance provided in Section 3.3 above, and to satisfy NCPA's obligations hereunder. 3.6 Service Agreement. Contracting Members acknowledge that NCPA will provide all Services through the Service Agreement, rather than using NCPA employees, and that NCPA's direct Services are limited to the administration of the Service Agreement on behalf of the Contracting Members. 3.7 Operational Contact. Each Party shall identify a representative to act as its Operational Contact. Each Operational Contact will be the first point of contact for the Parties regarding coordination of Services provided under this Agreement and the Service Agreement. Each Operational Contact is listed in Exhibit B of this Agreement. Section 4. TERM AND TERMINATION 4.1 Authorization to Perform Services. NCPA is not authorized to perform any initial Services or incur any costs whatsoever under the terms of this Agreement until its receipt of a written resolution and/or other appropriate/applicable authorization from each Contracting Member's governing body confirming Contracting Member's authority to enter into this Agreement and confirming that the Contracting Member has allocated funds for and approved contract payments to NCPA under this Agreement. 4.2 Term. The term of this Agreement is intended to be consistent with that of the Service Agreement. The term of this Agreement shall begin on the Effective Date and shall end upon the termination date of the Service Agreement, as such Service Agreement termination date may be extended or shortened pursuant to that Agreement. Section 5. INDEMNITY AND INSURANCE 5.1 Limitation of NCPA's Liability. 5.1.1 Except as provided in this Section 5.1, NCPA shall not at any time be liable for any injury or damage occurring to a Contracting Member or any other person or property from any cause whatsoever arising out of this Agreement, including the actions or inaction of Contractor. 4 Meter Maintenance Program Agreement 5.1.2 The provisions of Section 5.1.1 shall not apply where the injury or damage occurring to a Contracting Member is caused by the negligence of NCPA or of any employee, agent or contractor of NCPA, other than Contractor, and provided that any liability under this subsection is limited to the extent of the actual coverage and coverage limits of the NCPA insurance policies described in this Section 5. 5.1.3 Notwithstanding Section 5.1.2 above, the Contracting Members agrees to reimburse NCPA, in a timely manner, for all deductibles and/or self -insured retentions payable for any claim, liability or damage arising out of this Agreement. 5.2 Indemnification of NCPA. Except as specified in Section 5.1.2 above, Contracting Members shall, at their sole cost and expense, indemnify and hold harmless NCPA and all associated, affiliated, allied, member and subsidiary entities of NCPA, now existing or hereinafter created, and their respective officers, boards, commissions, employees, agents, attorneys, and contractors (hereinafter referred to as "Indemnitees"), from and against any and all liability, obligation, damages, penalties, claims, liens, costs, charges, losses and expenses (including, without limitation, reasonable fees and expenses of attorneys, expert witnesses and consultants), which may be imposed upon, incurred by or be asserted against the Indemnitees arising out of this Agreement. 5.3 Defense of Indemnitees. In the event any action or proceeding shall be brought against the Indemnitees by reason of any matter for which the Indemnitees are indemnified hereunder, Contracting Members shall, upon reasonable prior written notice from any of the Indemnitees, at Contracting Members' sole cost and expense, resist and defend the same with legal counsel mutually selected by Indemnitee and the Contracting Members, unless mutual selection of counsel is expressly prohibited by an applicable insurance policy; provided however, that neither Indemnitee nor Contracting Members shall admit liability in any such matter or on behalf of the other without express written consent, which consent shall not be unreasonably withheld or delayed, nor enter into any compromise or settlement of any claim for which Indemnitees are indemnified hereunder without prior express written consent. The Contracting Members' duty to defend shall begin upon receipt of a written notice identifying with specificity the allegations that give rise to this duty to defend. 5.4 Notice. The Parties shall give each other prompt notice of the making of any claim or the commencement of any action, suit or other proceeding covered by the provisions of this Section 5. 5.5 Insurance. During the term of the Agreement and prior to beginning any work under this Agreement, NCPA shall maintain, or cause to be maintained, in full force and effect, and at its sole cost and expense, the types and limits of liability insurance as are annually approved by the Commission. The types and limits of liability insurance that are applicable to this Agreement are evidenced in policy summaries, which are attached hereto as Exhibit C and incorporated herein. NCPA warrants and represents that the types of liability insurance and coverage limits shown in Exhibit C are in full force and effect and shall remain so during the term of this Agreement unless NCPA gives prior written notification (of not less than 30 days) of modification, cancellation or rescission of such coverage. 5 Meter Maintenance Program Agreement 5.6 Contracting Member's Acknowledgment of Option to Secure Additional Insurance. Each Contracting Member acknowledges that there are limitations on NCPA's liability to Contracting Member under this Section 5 and that each Contracting Member may need to purchase additional insurance of its own to cover the additional risks and the potential additional liabilities it is assuming under this Agreement. Each Contracting Member agrees that it will cause, with respect to any additional insurance it obtains or which is otherwise available to Contracting Member, its insurer(s) to issue an endorsement providing a waiver of subrogation rights as to Indemnitees. 5.7 Survival of Obligations. The defense and indemnity obligations of Section 5 shall survive the termination of this Agreement. 5.8 Contractor Insurance and Liability. The Service Agreement obligates the Contractor to maintain certain insurance. Nothing in this Section 5 shall limit the right of a Contracting Member to recover damages from the Contractor, whether or not covered by such insurance; provided, however, the Contracting Member shall defend, indemnify and hold NCPA harmless against any subrogation or other claims by Contractor against NCPA pursuant to Sections 5.2 and 5.3. Section 6. COMPENSATION AND CHARGES 6.1 Compensation and Charges. Each Contracting Member hereby agrees to reimburse NCPA for all costs NCPA incurs for providing Services to Contracting Member. Charges for the Services provided hereunder shall be the sum of (a), (b) and (c) below: (a) Annual Service Fees. Charges for Services provided hereunder include a fixed annual fee listed in Exhibit B of the Service Agreement. Each Contracting Member's allocated share of the annual fee for Services provided hereunder is equal to the sum of the annual cost per site listed in Exhibit C of the Service Agreement, as adjusted for each annual period, for the Equipment owned by the Contracting Member. (b) Hourly Service Fees. Certain Services provided hereunder are performed on a time and materials basis, and charges for such Services are based on the hourly rate schedule listed in Exhibit B of the Service Agreement. Service fees for activities that are performed on a time and materials basis will be charged to each Contracting Member based on actual Services provided. (c) Management Costs. NCPA management costs set forth in NCPA's then current Annual Budget (including amounts necessary to reimburse NCPA for the time expended by its employees and agents in administering this Agreement, including all attorneys fees), and other reimbursable expenses incurred in performing the Services. The Annual Budget will be updated and approved by the Commission, as it deems necessary, but not less than each year in connection with NCPA's Annual Budget process. Such approved updates will reflect NCPA's then current estimated annual cost for performing such continued Services. 6 Meter Maintenance Program Agreement Contracting Member shall pay NCPA for Services rendered pursuant to this Agreement at the time and in the manner set forth herein. The payments specified herein shall be the only payments from Contracting Member to NCPA for Services rendered pursuant to this Agreement. NCPA shall submit all invoices to Contracting Member in the manner specified herein. The Parties acknowledge and agree that compensation paid by Contracting Members to NCPA under this Agreement is based upon NCPA's estimated costs of providing the Services required hereunder, including salaries and benefits of employees and the costs of Contractor under the Service Agreement, and that the compensation to be paid shall be adjusted by NCPA so as to fully recover its costs of the Services. 6.2 The Parties agree that compensation hereunder is intended to include the costs of contributions to any pensions and/or annuities to which NCPA and its employees, agents, and subcontractors may be eligible. Contracting Members therefore have no responsibility for such contributions beyond compensation required under this Agreement. Section 7. BILLING AND PAYMENT 7.1 Invoices. NCPA shall submit invoices to each Contracting Member in the form of the All Resources Bill, based on the cost for Services performed and reimbursable costs incurred prior to the invoice date. Invoices shall be accompanied with adequate and proper supporting information and documentation for the Services performed, if and as applicable. 7.2 Monthly Payment. Contracting Members shall make payments, based on invoices received, for Services performed, and for authorized reimbursable costs incurred as specified herein. Payments shall be remitted directly to: Northern California Power Agency 651 Commerce Drive Roseville, California 95678 Attn: Accounts Receivable Except for an "Uncontrollable Force" as described in Section 9 hereof, any amount due and payable but not paid by a Contracting Member by no later than the invoice due date set forth on the invoice shall bear interest at the per annum prime rate (or reference rate) of the Bank of America NT & SA, then in effect, plus two percent per annum computed on a daily basis until paid. NCPA will mail all invoices within 24 hours of the invoice date thereon. The postmark date on the envelope containing payment by check shall be used to determine timeliness of payment, except that payments received later than seven (7) days after the due date shall be declared late without regard to postmark date. An invoice coming due on a Friday, holiday, or weekend shall be due on the next following nationally recognized working day. 7.3 Billing Dispute. If all or any portion of a bill is disputed by a Contracting Member, the entire amount of the bill shall be paid when due, and NCPA's Authorized Representative shall 7 Meter Maintenance Program Agreement be concurrently provided written notice of the disputed amount and the basis for the dispute. NCPA shall reimburse any amount determined to have been incorrectly billed, within ten (10) days after such determination. 7.4 Total Payment. Each Contracting Member shall pay for the Services to be rendered by NCPA pursuant to this Agreement. Contracting Member shall not pay any additional sum for any expense or cost whatsoever incurred by NCPA in rendering Services pursuant to this Agreement other than the payments provided for herein unless the Agreement has been modified by a properly executed amendment in accordance with Section 12.16 this Agreement. 7.5 Reimbursable Expenses. Reimbursable expenses not contained in the Agreement or the Exhibits of the Agreement are not chargeable to Contracting Members. 7.6 Payment of Taxes. NCPA is solely responsible for the payment of employment taxes incurred under this Agreement and any similar federal or state taxes. 7.7 Payment upon Termination. Upon termination, Contracting Members shall compensate NCPA for all outstanding costs and reimbursable expenses incurred for work satisfactorily completed as of the date of termination. NCPA shall maintain adequate logs and timesheets in order to verify costs incurred to that date. Section 8. STATUS OF NCPA 8.1 Independent Contractor. At all times during the term of this Agreement, NCPA shall be an independent contractor and shall not be an employee of Contracting Members. Contracting Members shall have the right to control NCPA only insofar as the results of NCPA's Services rendered pursuant to this Agreement and assignment of personnel pursuant to Section 3.4; however, otherwise Contracting Members shall not have the right to control the means by which NCPA accomplishes Services rendered pursuant to this Agreement. Notwithstanding any other agency, state, local or federal policy, rule, regulation, law, or ordinance to the contrary, NCPA and any of its employees, agents, and subcontractors providing Services under this Agreement shall not qualify for or become entitled to, and hereby agree to waive any and all claims to, any compensation, benefit, or any incident of employment by Contracting Members, including but not limited to eligibility to enroll in the California Public Employees Retirement System (PERS) as an employee of Contracting Members and entitlement to any contribution to be paid by Contracting Members for employer contributions and/or employee contributions for PERS benefits. Section 9. UNCONTROLLABLE FORCES 9.1 Obligations of the Parties, other than those to pay money when due, shall be excused for so long as and to the extent that failure to perform such obligations is due to an Uncontrollable Force; provided, however, that if either Party is unable to perform due to an Uncontrollable Force, such Party shall exercise due diligence to remove such inability with reasonable dispatch. Nothing contained in this Agreement shall be construed as requiring a Party to settle any strike, lockout, or labor dispute in which it may be involved, or to accept any permit, certificate, contract, or any other service agreement or authorization necessary for the performance 8 Meter Maintenance Program Agreement of this Agreement which contains terms and conditions which a Party determines in its good faith judgment are unduly burdensome or otherwise unacceptable. 9.2 Each Party shall notify the other promptly, by telephone to the other Party's Operational Contact identified in Exhibit B, attached hereto and incorporated herein and Authorized Representative identified in Section 3.2, upon becoming aware of any Uncontrollable Force which may adversely affect the performance under this Agreement. A Party shall additionally provide written notice in accordance with Section 12.8 to the other Party within 24 hours after providing notice by telephone. Each Party shall notify the other promptly, when an Uncontrollable Force has been remedied or no longer exists. Section 10. LEGAL REQUIREMENTS 10.1 Governing Law. The laws of the State of California shall govern this Agreement, without regard for the choice of law doctrine. 10.2 Compliance with Applicable Laws. NCPA and Contractor shall comply with all laws applicable to the performance of the Services hereunder. 10.3 Other Governmental Regulations. To the extent that this Agreement may be funded by fiscal assistance from another governmental entity, NCPA and Contractor shall comply with all applicable rules and regulations to which Contracting Members are bound by the terms of such fiscal assistance program, provided that the affected Contracting Members shall have provided notice of such rules and regulations to NCPA prior to the approval of this Agreement. 10.4 Licenses and Permits. NCPA represents and warrants to Contracting Members that NCPA and its employees, agents, and any subcontractors have all licenses, permits, qualifications, and approvals of whatsoever nature that is legally required to practice their respective professions. NCPA represents and warrants to Contracting Members that NCPA and its employees, agents, and subcontractors shall, at their sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals that are legally required to practice their respective professions. 10.5 Nondiscrimination and Equal Opportunity. NCPA shall not discriminate, on the basis of a person's race, religion, color, national origin, age, physical or mental handicap or disability, medical condition, marital status, sex, or sexual orientation, against any employee, applicant for employment, subcontractor, bidder for a subcontract, or participant in, recipient of, or applicant for any services or programs provided by NCPA under this Agreement. NCPA shall comply with all applicable federal, state, and local laws, policies, rules, and requirements related to equal opportunity and nondiscrimination in employment, contracting, and the provision of any services that are the subject of this Agreement, including but not limited to the satisfaction of any positive obligations required of NCPA thereby. Section 11. KEEPING AND STATUS OF RECORDS 11.1 Records Created as Part of NCPA's Performance. All reports, data, maps, models, 9 Meter Maintenance Program Agreement charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records, files, or any other documents or materials, in electronic or any other form, that NCPA prepares or obtains pursuant to this Agreement and that relate to the matters covered hereunder shall be the property of the affected Contracting Members. NCPA hereby agrees to deliver those documents to Contracting Members upon termination of the Agreement. It is understood and agreed that the documents and other materials, including but not limited to those described above, prepared pursuant to this Agreement are prepared specifically for the Contracting Members and are not necessarily suitable for any future or other use. The Parties agree that, until final approval by Contracting Members, all data, plans, specifications, reports and other documents are confidential and will not be released to third parties without prior written consent of both affected Parties, except as may otherwise be required by applicable law. 11.2 NCPA's Books and Records. NCPA shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for Services or expenditures and disbursements charged to a Contracting Member under this Agreement for a minimum of three (3) years, or for any longer period required by law, from the date of final payment to NCPA pursuant to this Agreement. 11.3 Inspection and Audit of Records. Any records or documents that Section 11.1 of this Agreement requires NCPA to maintain shall be made available for inspection, audit, and/or copying at any time during regular business hours, upon oral or written request of the Contracting Members. Under California Government Code Section 8546.7, if the amount of public funds expended under this Agreement exceeds TEN THOUSAND DOLLARS ($10,000.00), the Agreement shall be subject to the examination and audit of the State Auditor, at the request of Contracting Members or as part of any audit of the Contracting Members, for a period of three (3) years after final payment under the Agreement. 11.4 Confidential Information and Disclosure. During the term of this Agreement, either Party ("Disclosing Party") may disclose confidential, proprietary or trade secret information (the "Information"), to the other Party ("Receiving Party"). All such Information made available in a tangible medium of expression (such as, without limitation, on paper or by means of magnetic tapes, magnetic disks or other computer media) shall be marked in a prominent location to indicate that it is the confidential, proprietary and trade secret information of Disclosing Party at the time of disclosure to Receiving Party. Receiving Party shall hold Disclosing Party's Information in confidence and shall take all reasonable steps to prevent any unauthorized possession, use, copying, transfer or disclosure of such Information. Receiving Party shall not attempt to reverse engineer or in any manner create any product or information which is similar in appearance to or based on the Information provided by Disclosing Party. Receiving Party shall not disclose Disclosing Party's Information to any person other than Receiving Party's employees, agents, contractors and subcontractors who have a need to know in connection with this Agreement. Receiving Party's confidentiality obligations hereunder shall not apply to any portion of Disclosing Party's Information which: (a) Has become a matter of public knowledge other than through an act or omission of Receiving Party; (b) Has been made known to Receiving Party by a third party in accordance with such 10 Meter Maintenance Program Agreement third party's legal rights without any restriction on disclosure; (c) Was in the possession of Receiving Party prior to the disclosure of such Information by Disclosing Party and was not acquired directly or indirectly from the other party or any person or entity in a relationship of trust and confidence with the other party with respect to such Information; (d) Receiving Party is required by law to disclose; or (e) Has been independently developed by Receiving Party from information not defined as "Information" in this Agreement, as evidenced by Receiving Party's written records. Receiving Party shall return or destroy Disclosing Party's Information (including all copies thereof) to Disclosing Party promptly upon the earliest of any termination of this Agreement or the Disclosing Party's written request. Notwithstanding the foregoing, Receiving Party may retain one copy of such Information solely for archival purposes, subject to the confidentiality provisions of this Agreement. The parties understand that each party is a public entity and is subject to the laws that may compel either to disclose information about the other's business. Section 12. MISCELLANEOUS PROVISIONS 12.1 Attorneys' Fees. If a Party to this Agreement brings any action, including an action for declaratory relief, to enforce or interpret the provisions of this Agreement, the prevailing Party shall be entitled to reasonable attorneys' fees in addition to any other relief to which that Party may be entitled. The court may set such fees in the same action or in a separate action brought for that purpose. 12.2 Venue. In the event that either Party brings any action against the other under this Agreement, the Parties agree that trial of such action shall be vested exclusively in the state courts of California in the County of Placer or in the United States District Court for the Eastern District of California. 12.3 Severability. If any provision of this Agreement shall be determined by a court of competent jurisdiction to be invalid, void or unenforceable, or if any provision of this Agreement is rendered invalid or unenforceable by federal or state statute or regulation, but the remaining portions of the Agreement can be enforced without failure of material consideration to any Party, then the remaining provisions shall continue in full force and effect. To that end, this Agreement is declared to be severable. Provided, however, that in the event any provision is declared to be invalid, void or unenforceable, either Party may terminate this Agreement upon ten (10) days written notice given within five (5) days of receipt of notice of final entry of judgment. 12.4 No Implied Waiver of Breach. The waiver of any breach of a specific provision of this Agreement does not constitute a waiver of any other breach of that term or any other term of this Agreement. 12.5 Successors and Assigns. The provisions of this Agreement shall inure to the benefit of and shall apply to and bind the successors and assigns of the Parties. 12.6 Use of Recycled Products. NCPA shall endeavor to prepare and submit all reports, written studies and other printed material on recycled paper to the extent it is available at equal or less cost than virgin paper. 11 Meter Maintenance Program Agreement 12.7 Conflict of Interest. NCPA shall not employ any Contracting Member official or employee in the work performed pursuant to this Agreement. No officer or employee of Contracting Members shall have any financial interest in this Agreement that would violate California Government Code Sections 1090 et seq. 12.8 Notices. Unless this Agreement requires otherwise, any notice, demand or request provided for in this Agreement, or served, given or made shall become effective when delivered in person, or sent by registered or certified first class mail, to the persons specified below: Northern California Power Agency Donna Stevener Assistant General Manager; Administrative Services Northern California Power Agency 651 Commerce Drive Roseville, CA 95678 With a copy to: Michael F. Dean General Counsel Northern California Power Agency Meyers Nave 555 Capitol Mall, Suite 1200 Sacramento, CA 95814 Alameda Municipal Power Glenn Steiger General Manager Alameda Municipal Power 2000 Grand Street PO Box H Alameda, CA 94501 City of Biggs Mark Sorensen Utility Director City of Biggs 465 "C" Street PO Box 307 Biggs, CA 95917 City of Gridley 12 Meter Maintenance Program Agreement Rob Hickey Utility Director City of Gridley 685 Kentucky Street Gridley, CA 95948 City of Healdsburg Terry Crowley Utility Director City of Healdsburg 401 Grove Street Healdsburg, CA 95448 City of Lodi Elizabeth Kirkley Utility Director City of Lodi 1331 Ham Lane Lodi, CA 95242 City of Lompoc Larry Bean Utility Director City of Lompoc 100 Civic Center Plaza PO Box 8001 Lompoc, CA 93436 City of Palo Alto Valerie Fong Utility Director City of Palo Alto 250 Hamilton Avenue PO Box 10250 Palo Alto, CA 94301 Plumas Sierra Rural Electric Cooperative Bob Marshall Utility Director Plumas Sierra Rural Electric Cooperative 732233 Highway 70 Portola, CA 96122 13 Meter Maintenance Program Agreement Port of Oakland Jill Bornor-Brown Utility Director Port of Oakland 530 Water Street PO Box 2064 Oakland, CA 94604 City of Ukiah Mel Grandi Utility Director City of Ukiah 300 Seminary Avenue Ukiah, CA 95482 Whenever it is required, permitted, or desired in this Agreement that written notice or demand be given by any Party to any other Party, such notice or demand may be either personally served or sent by United States Mail, or facsimile. Notice shall be deemed to have been given when personally served, when deposited in the United States Mail, certified or registered with postage prepaid and properly addressed, or when transmitted by facsimile provided however, notices delivered by facsimile shall only be effective if delivered during regular business hours on a day that is considered a regular business day for NCPA by the involved Parties. 12.9 Integration; Incorporation. This Agreement, including all the Exhibits attached hereto, represents the entire and integrated agreement between Contracting Members and NCPA relating to the subject matter of this Agreement, and supersedes all prior negotiations, representations, or agreements, either written or oral. 12.10 Dispute Resolution. If any dispute arises between the Parties that cannot be settled after engaging in good faith negotiations, the Parties agree to resolve the dispute in accordance with the following: 12.10.1 Each Party shall designate a senior management or executive level representative to negotiate any dispute; 12.10.2 The representatives shall attempt, through good faith negotiations, to resolve the dispute by any means within their authority. 12.10.3 If the issue remains unresolved after ONE HUNDRED AND TWENTY (120) days of good faith negotiations, despite having used their best efforts to do so, either Party may pursue whatever other remedies may be available to it. 12.10.4 This informal resolution process is not intended to nor shall be construed to change the time periods for filing a claim or action specified by Government Code § 900, et seq. 14 Meter Maintenance Program Agreement 12.11 Other Agreements. This Agreement is not intended to modify or change any other agreement between any of the Parties, individually or collectively. 12.12 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be an original and all of which together shall constitute one agreement. 12.13 Obligations Several. The duties, obligations and liabilities of the Parties are intended to be several and not joint or collective. Nothing contained in this Agreement shall ever been construed to create an association, trust, partnership or joint venture or to impose a trust or partnership duty, obligation or liability on or with regard to either Party. Each Party shall be individually and severally liable for its own obligations under this Agreement. 12.14 Effect of Section Headings. Section headings and subheadings appearing in this Agreement are inserted for convenience only and shall not be construed as interpretation of text. 12.15 Authority of Signatories. The signatories hereby represent that they have been appropriately authorized to execute this Agreement on behalf of the Party for whom they sign. 12.16 Amendments. 12.16.1 Deemed Approved Amendments. It is understood and agreed by the Parties that any NCPA Commission approved update to the then current NCPA Annual Budget rates and charges related to Services to be performed under this Agreement is deemed an approved amendment to this Agreement. 12.16.2 Addition or Removal of Equipment. The Parties may, only by a writing signed by the Authorized Representative of NCPA, the Authorized Representative of affected Contracting Member and Contractor, add or remove metering equipment listed in Exhibit C of the Service Agreement that is owned or operated by a Contracting Member, and such changes to Exhibit C of the Service Agreement shall not constitute an amendment to this Agreement. 12.16.3 Authorized Representatives, Addresses for Notice and Operational Contacts. Any Party may, by providing written notice to the other Parties, modify either the identity or address for its Authorized Representative as identified in Section 3.2, may amend its address for notice as provided in Section 12.8, or modify the identity or contact information for its Operational Contact as identified in Exhibit B. 12.16.4 Amendments in General. Except as otherwise provided in this Section 12.16, the Parties may amend this Agreement only by a writing signed by all the Parties following each Party's receipt of written resolution/authorization from their governing bodies, which resolutions/authorizations shall be condition precedents to any amendments of this Agreement and shall be attached as Exhibits to this Agreement. 15 Meter Maintenance Program Agreement The Parties have executed this Agreement as of the Effective Date. Northern California Power Agency City of Alameda JAMES H. POPE, General Manager Attest: Attest: Assistant Secretary of the Commission Approved as to Form: Approved as to Form: General Counsel City of Biggs City of Gridley Attest: Attest: Approved as to Form: Approved as to Form: 16 Meter Maintenance Program Agreement City of Healdsburg City of Lodi Attest: Attest: Approved as to Form: Approved as to Form: City of Lompoc City of Palo Alto Attest: Attest: Approved as to Form: Approved as to Form: 17 Meter Maintenance Program Agreement Plumas Sierra Rural Electric Cooperative City of Oakland (Acting through its Board of Commissioners) Attest: Attest: Approved as to Form: Approved as to Form: City of Ukiah Attest: Approved as to Form: 18 Meter Maintenance Program Agreement EXHIBIT A SCOPE OF SERVICES In accordance with the terms of this Agreement NCPA will manage, on behalf of Contracting Members, the acquisition of Services (or "Work" as referred to in the Service Agreement) from Contractor as provided below. Pursuant to the Service Agreement, Contractor will provide the Services listed in Exhibit A herein, in coordination with NCPA. It is intended that this Scope of Services be consistent with, and not more broad than, the Scope of Work set forth in the Service Agreement. The Scope of Work provided in accordance with this Agreement and the Service Agreement are described below, and have been made for the purpose of monitoring, maintaining and repairing Supervisory Control and Data Acquisition systems ("SCADA"), metering equipment (including CAISO revenue quality metering equipment), and any communications or interface devices provided by Contractor (all of which are referred to herein as "Equipment") located at or installed on the premises of the Contracting Members' sites ("Project Sites") listed in Exhibit C of the Service Agreement. Pursuant to this Agreement and the Service Agreement, Contractor agrees to perform the following Services: 1. Support for failures of Equipment: a. Provide remote network or dial -in support service to troubleshoot and make repairs of the Equipment located at each Project Site for any reported failures within: (i) four (4) hours from the time support is requested during business hours, or (ii) within 24 hours from the time support is requested during any hours that are not business hours; b. Provide support service at each Project Site (if necessary) within one (1) business day following a reported failure related to the Equipment; and c. Provide one (1) annual emergency visit for each Project Site (if necessary) to repair or replace failed Equipment, including travel and other expenses as incurred by Contractor. For the purpose of this Exhibit A, "business hours" are defined as 8:00 a.m. through 5:00 p.m. (PT), Monday through Friday, not including Federal Reserve Bank holidays. 2. Equipment monitoring and maintenance: a. Conduct one (1) annual maintenance inspection and assessment of the Equipment at each Project Site; such includes: i. Clean the computer equipment, perform backups and updates; i i . Replace the meter battery (on a two (2) year cycle) and conduct a meter registration test (annually); i i i . Inspect Equipment for any corrosion, deterioration or other pending circumstances that may lead to or make failure eminent; and 19 Meter Maintenance Program Agreement iv. Maintain current configuration files and documentation on the Equipment, including databases and configuration detail for SCADA 3. Miscellaneous Work performed on a time and materials basis: a. Upon request made by Agency to Contractor, Contractor may perform Work consistent with the general scope of work performed in accordance with the Service Agreement; the general descriptions of tasks and hourly fees for such Work are further described in Table B of Exhibit B of the Service Agreement. 20 Meter Maintenance Program Agreement EXHIBIT B CONTRACTING MEMBERS' AND NCPA OPERATIONAL CONTACTS The following is a list of each Party's Operational Contacts: Northern California Power Agency Steve Rawson Computer Technology Analyst-SCADA 651 Commerce Drive Roseville, CA 95678 Office Phone: 916-781-4285 Fax: 916-781-4226 Email: steve.rawson@ncpa.com Alameda Municipal Power Robert Mackey Electric Equipment Superintendent Office Phone: 510-748-3958 Email: MACKEY@alamedamp.com City of Biggs Gary Davidson Electric Superintendent Office Phone: 530-846-5954 Fax: 530-846-8310 Email: gdavidson@gridley.ca.us City of Gridley Rob Hickey City Administrator Office Phone: 530-846-5695 Fax: 530-846-3229 Email: rhickey@gridley.ca.us City of Healdsburg Primary Contact Todd Woolman Electric Superintendent Office Phone: 707-431-3341 21 Meter Maintenance Program Agreement Cell Phone: 707-480-6485 Email: twoolman@ci.healdsburg.ca.us Secondary Contact Terry Crowley Electric Utility Director Office Phone: 707-431-3340 Cell Phone: 707-490-8808 Email: tcrowley@ci.healdsburg.ca.us After -Hours Contact Healdsburg Police Department 707-431-3377 City of Lodi Charles Berry Electric Utility Superintendent Office Phone: 209-333-6764 Email: cberry@lodi.gov City of Lompoc Marty Hostler, P.E. Electric Utility Division Manger Office Phone: 805-875-8296 Cell Phone: 805-315-7055 Fax: 805-875-8296 Email: m_hostler@ci.lompoc.ca.us City of Palo Alto Rick Baptist Electrical Systems Supervisor, Substations / SCADA Office Phone: 650-496-6902 Cell Phone: 650-444-5055 Email: Richard.Baptist@CityofPaloAlto.org Plumas Sierra Rural Electric Cooperative Primary Contact Greg Lohn Office Phone: 530-832-6026 Cell Phone: 530-251-7449 Email: glohn@psrec.coop Secondary Contact 22 Meter Maintenance Program Agreement Jason Harston Office Phone: 530-832-6035 Cell Phone: 530-249-4605 Email: jharston@psrec.coop Port of Oakland Valerie Zabb-Parmley Office Phone: 510-563-3941 Cell Phone: 510-715-9905 Email: vzabbparmley@portoakland.com City of Ukiah Mel Grandi, P.E. Electric Utility Director Office Phone: 707-463-6295 Cell Phone: 209-747-0546 Fax: 707-463-6204 Email: mgrandi@cityofukiah.com 23 Meter Maintenance Program Agreement EXHIBIT C NCPA SUMMARIES OF LIABILITY INSURANCE See the attached Summaries of the following insurance coverage: 1. Workers' Compensation & Employer's Liability 2. Automobile Liability & Physical Damage 3. Excess Liability 4. Professional Liability 2328439.3 24 Meter Maintenance Program Agreement ATTACHMENT C RESOLUTION 14-76 RESOLUTION OF THE NORTHERN CALIFORNIA POWER AGENCY APPROVAL OF THE METER MAINTENANCE PROGRAM AGREEMENT AND GENERAL SERVICES AGREEMENT WITH TRIMARK ASSOCIATES, INC. (reference Staff Report #212:14) WHEREAS, each of the Northern California Power Agency ("NCPA") Pool Members' operate as Metered Subsystems located within the California Independent System Operator ("CAISO") Balancing Authority Area, and are parties to the Third Amended and Restated NCPA MSS Aggregator Agreement ("MSSA Agreement"), as such may be amended from time to time; and WHEREAS, as part of the requirements associated with the MSSA Agreement and CAISO Tariff, the Pool Members have certain obligations to comply with provisions of the CAISO Tariff applicable to metering equipment, including but not limited to, maintenance, outages, testing and certification; and WHEREAS, the Pool Members have requested for NCPA to enter into an agreement, on their behalf, under which NCPA shall secure the services of a qualified supplier to perform meter maintenance activities, including, but not limited to, monitoring, maintaining and repairing Supervisory Control Data Acquisition systems ("SCADA"), metering equipment (including CAISO revenue quality metering equipment), and any communications or interface devices for equipment owned and operated by the Pool Members; and WHEREAS, in response to this request, NCPA has developed a General Services Agreement between NCPA and Trimark Associates, Inc. ("Trimark"), under which Trimark shall supply meter maintenance services for those Pool Members' equipment that is included within the scope of the agreement, and NCPA will act as contract administrator for the General Services Agreement, and shall coordinate services and activities performed pursuant to the agreement; and WHEREAS, in addition to the General Services Agreement, NCPA, working with member staff, has also developed the Meter Maintenance Program Agreement between NCPA and the members who are signatory to the agreement, which contains the terms and conditions under which the services shall be provided, clarifies the signatory members' obligations to pay for all costs incurred by NCPA for services provided under the General Services Agreement, and sets forth all other provisions for administration of the meter maintenance program; and WHEREAS, the term of the General Services Agreement and Meter Maintenance Program Agreement is five (5) years; and WHEREAS, pursuant to Section 14.1 of the NCPA Purchasing Manual, NCPA's acquisition of meter maintenance services from Trimark, pursuant to the terms and conditions of the General Services Agreement, is considered a Sole Source Purchase; and WHEREAS, compensation for services provided by Trimark under the General Services Agreement shall be based on the annual compensation schedules and hourly fees as set forth in Exhibit B of the General Services Agreement, and total compensation provided under the General 1 The NCPA Pool members are City of Alameda, City of Biggs, City of Gridley, City of Healdsburg, City of Lodi, City of Lompoc, City of Palo Alto, Port of Oakland, Plumas Sierra Rural Electric Cooperative and City of Ukiah Services Agreement shall not exceed three hundred thousand dollars ($300,000) during the term of the General Services Agreement, and all cost incurred will be tracked using separate purchase orders, and will be allocated to the applicable member on whose behalf services are provided; and WHEREAS, the environmental impact is addressed in Staff Report #212:14; and NOW, THEREFORE BE IT RESOLVED, that the Commission of the Northern California Power Agency: 1. Adopts and approves the Meter Maintenance Program Agreement, under which NCPA will supply meter maintenance services to the Pool Members; and 2. Provides authority to the General Manager of NCPA to execute the Meter Maintenance Program Agreement, on behalf of NCPA, including any non -substantive modifications to the Meter Maintenance Program Agreement approved by NCPA's General Counsel; and 3. Adopts and approves the General Services Agreement between Northern California Power Agency and Trimark Associates, Inc., under which NCPA shall acquire meter maintenance services from Trimark, on behalf of the Pool Members; and 4. Provides authority to the General Manager of NCPA to execute the General Services Agreement between Northern California Power Agency and Trimark Associates, Inc., on behalf of NCPA, including any non -substantive modifications to the General Services Agreement between Northern California Power Agency and Trimark Associates, Inc. approved by NCPA's General Counsel, upon receipt of a fully executed Meter Maintenance Program Agreement. PASSED, ADOPTED and APPROVED this 23rd day of October 2014, by the following vote on roll call: Vote Abstained Absent Alameda BART Biggs Gridley Healdsburg Lodi Lompoc Palo Alto Port of Oakland Redding Roseville Santa Clara Truckee Donner Ukiah Plumas-Sierra PATRICK KOLSTAD ATTEST: CARY A. PADGETT CHAIRMAN ASSISTANT SECRETARY NCPA Resolution 14-76 -2- ATTACHMENT D GENERAL SERVICES AGREEMENT BETWEEN THE NORTHERN CALIFORNIA POWER AGENCY AND TRIMARK ASSOCIATES, INC This agreement for General Services ("Agreement') is made by and between the Northern California Power Agency, a joint powers agency with its main office located at 651 Commerce Drive, Roseville, CA 95678-6420 ("Agency") and Trimark Associates, Inc., a corporation with its office located at 2365 Iron Point Road, Suite 100, Folsom, CA 95630 ("Contractor") (together sometimes referred to as the "Parties") as of , 20_ ("Effective Date") in Roseville, California. Section 1. SCOPE OF WORK. Subject to the terms and conditions set forth in this Agreement, Contractor shall provide to Agency the services and/or goods described in the Scope of Work attached hereto as Exhibit A and incorporated herein ("Work"), at the time and place and in the manner specified therein. 1.1 Term of Agreement. The term of this Agreement shall begin on the Effective Date and shall end on December 31, 2019. If the performance of the Work extends beyond the term of this Agreement, then the term of this Agreement shall be extended solely for and until completion of the outstanding Purchase Orders. 1.2 Standard of Performance. Contractor shall perform the Work in the manner and according to the standards observed by a competent practitioner of the profession in which Contractor is engaged and for which Contractor is providing the Work. Contractor represents that it is licensed, qualified and experienced to provide the Work set forth herein. 1.3 Assignment of Personnel. Contractor shall assign only competent personnel to perform the Work. In the event that Agency, in its sole discretion, at any time during the term of this Agreement, requests the reassignment of any such personnel, Contractor shall, immediately upon receiving written notice from Agency of such request, reassign such personnel. 1.4 Purchase Orders. Contractor and Agency may enter into any number of Purchase Orders relating to one or more projects to perform Work under this Agreement. Each Purchase Order shall: (i) be separately numbered and (ii) contain at a minimum the following information: name of contracting Parties, date of this Agreement, date of Purchase Order, specific Project Site as listed in Exhibit C, description of Work to be performed, date when Work are to be performed or delivered, and amount of compensation payable to Contractor for such Work in accordance with the Compensation Schedule and Hourly Fee Schedule listed in Exhibit B. Each Purchase Order is hereby incorporated herein as if fully set forth herein. Notwithstanding the foregoing, if any terms or conditions in the Purchase Order, or any attachment thereto, are inconsistent or in conflict with this Agreement, this Agreement shall control. The Parties agree that no Purchase Order shall amend or modify this Agreement. The Projects for which the Parties enter into a Purchase Order are herein referred to individually as a "Project" and General Services Agreement 1 Trimark Associates, Inc. collectively as the "Projects". Any Work performed or provided by Contractor with respect to a particular Project prior to the actual date of execution by Contractor and Agency of an appropriate Purchase Order shall nonetheless be deemed to be performed under this Agreement and all of the provisions hereof shall apply to such Services, work and supplies. Section 2. COMPENSATION. Agency hereby agrees to pay Contractor an amount NOT TO EXCEED thee hundred thousand dollars ($300,000.00) for the Work, which shall include all fees, costs, expenses and other reimbursables, as set forth in the Compensation and Hourly Fees Schedule incorporated herein as Exhibit B. This dollar amount is not a guarantee that Agency will pay that full amount to the Contractor, but is merely a limit of potential Agency expenditures under this Agreement. 2.1 Invoices. Contractor shall submit invoices, not more often than once a month during the term of this Agreement, based on the cost for services performed and reimbursable costs incurred prior to the invoice date. Invoices shall contain the following information: ■ The beginning and ending dates of the billing period; ■ Work performed; • The Purchase Order number authorizing the Work; • At Agency's option, for each work item in each task, a copy of the applicable time entries or time sheets shall be submitted showing the name of the person doing the work, the hours spent by each person, a brief description of the work, and each reimbursable expense, with supporting documentation; and ■ At Agency's option, the total number of hours of work performed under the Agreement by Contractor and each employee, agent, and subcontractor of Contractor performing work hereunder. Invoices shall be sent to: Northern California Power Agency 651 Commerce Drive Roseville, California 95678 Attn: Accounts Payable 2.2 Monthly Payment. Agency shall make monthly payments, based on invoices received, for Work satisfactorily performed, and for authorized reimbursable costs incurred. Agency shall have thirty (30) days from the receipt of an invoice that complies with all of the requirements above to pay Contractor. 2.3 Payment of Taxes. Contractor is solely responsible for the payment of all federal, state and local taxes, including employment taxes, incurred under this Agreement. 2.4 Authorization to Perform Work. The Contractor is not authorized to perform any Work or incur any costs whatsoever under the terms of this Agreement until receipt of written authorization from the Contract Administrator. General Services Agreement 2 Trimark Associates, Inc. 2.5 Timing for Submittal of Final Invoice. Contractor shall have ninety (90) days after completion of its Work to submit its final invoice. In the event Contractor fails to submit an invoice to Agency for any amounts due within the ninety (90) day period, Contractor is deemed to have waived its right to collect its final payment from Agency. Section 3. FACILITIES AND EQUIPMENT. Except as set forth herein, Contractor shall, at its sole cost and expense, provide all facilities and equipment that may be necessary to perform the Work. Section 4. INSURANCE REQUIREMENTS. Before beginning any Work under this Agreement, Contractor, at its own cost and expense, shall procure the types and amounts of insurance listed below and shall maintain the types and amounts of insurance listed below for the period covered by this Agreement. 4.1 Workers' Compensation. If Contractor employs any person, Contractor shall maintain Statutory Workers' Compensation Insurance and Employer's Liability Insurance for any and all persons employed directly or indirectly by Contractor with limits of not less than one million dollars ($1,000,000.00) per accident. 4.2 Commercial General and Automobile Liability Insurance. 4.2.1 Commercial General Insurance. Contractor shall maintain commercial general liability insurance for the term of this Agreement, including products liability, covering any loss or liability, including the cost of defense of any action, for bodily injury, death, personal injury and broad form property damage which may arise out of the operations of Contractor. The policy shall provide a minimum limit of $1,000,000 per occurrence/$2,000,000 aggregate. Commercial general coverage shall be at least as broad as ISO Commercial General Liability form CG 0001 (current edition) on "an occurrence" basis covering comprehensive General Liability, with a self -insured retention or deductible of no more than $100,000. No endorsement shall be attached limiting the coverage. 4.2.2 Automobile Liability. Contractor shall maintain automobile liability insurance form CA 0001 (current edition) for the term of this Agreement covering any loss or liability, including the cost of defense of any action, arising from the operation, maintenance or use of any vehicle (symbol 1), whether or not owned by the Contractor, on or off Agency premises. The policy shall provide a minimum limit of $1,000,000 per each accident, with a self -insured retention or deductible of no more than $100,000. This insurance shall provide contractual liability covering all motor vehicles and mobile equipment to the extent coverage may be excluded from general liability insurance. 4.2.3 General Liability/Umbrella Insurance. The coverage amounts set forth above may be met by a combination of underlying and umbrella policies as long as in combination the limits equal or exceed those stated. General Services Agreement 3 Trimark Associates, Inc. 4.3 Professional Liability Insurance. Contractor shall maintain professional liability insurance appropriate to Contractor's profession performing work in connection with this Agreement in an amount not less than one million dollars ($1,000,000.00) and two million dollars ($2,000,000) aggregate covering the Contractor's errors and omissions. Any deductible or self -insured retention shall not exceed two hundred fifty thousand dollars ($250,000.00) per claim. 4.4 All Policies Requirements. 4.4.1 Verification of coverage. Prior to beginning any work under this Agreement, Contractor shall provide Agency with (1) a Certificate of Insurance that demonstrates compliance with all applicable insurance provisions contained herein and (2) policy endorsements to the policies referenced in Section 4.2, adding the Agency as an additional insured and declaring such insurance primary in regard to work performed pursuant to this Agreement. 4.4.2 Notice of Reduction in or Cancellation of Coverage. Contractor shall provide at least thirty (30) days prior written notice to Agency of any reduction in scope or amount, cancellation, or modification adverse to Agency of the policies referenced in Section 4. 4.4.3 Higher Limits. If Contractor maintains higher limits than the minimums specified herein, the Agency shall be entitled to coverage for the higher limits maintained by the Contractor. 4.5 Waiver of Subrogation. Contractor agrees to waive subrogation which any insurer of Contractor may acquire from Contractor by virtue of the payment of any loss. Contractor agrees to obtain any endorsement that may be necessary to effect this waiver of subrogation. The Workers' Compensation policy shall be endorsed with a waiver of subrogation in favor of Agency for all work performed by Contractor, its employees, agents and subcontractors. 4.6 Contractor's Obligation. Contractor shall be solely responsible for ensuring that all equipment, vehicles and other items utilized in the performance of Work are operated, provided or otherwise utilized in a manner that ensues they are and remain covered by the policies referenced in Section 4 during this Agreement. Contractor shall also ensure that all workers involved in the provision of Work are properly classified as employees, agents or independent contractors and are and remain covered by any and all workers' compensation insurance required by applicable law during this Agreement. Section 5. INDEMNIFICATION AND CONTRACTOR'S RESPONSIBILITIES. 5.1 Effect of Insurance. Agency's acceptance of insurance certificates and endorsements required under this Agreement does not relieve Contractor from liability under this indemnification and hold harmless clause. This indemnification and hold harmless clause General Services Agreement 4 Trimark Associates, Inc. shall apply to any damages or claims for damages whether or not such insurance policies shall have been determined to apply. By execution of this Agreement, Contractor acknowledges and agrees to the provisions of this section and that it is a material element of consideration. 5.2 Scope. Contractor shall indemnify, defend with counsel reasonably acceptable to the Agency, and hold harmless the Agency, and its officials, commissioners, officers, employees, agents and volunteers from and against all losses, liabilities, claims, demands, suits, actions, damages, expenses, penalties, fines, costs (including without limitation costs and fees of litigation), judgments and causes of action of every nature arising out of or in connection with any acts or omissions by Contractor, its officers, officials, agents, and employees, except as caused by the sole or gross negligence of Agency. Notwithstanding, should this Agreement be construed as a construction agreement under Civil Code section 2783, then the exception referenced above shall also be for the active negligence of Agency. Section 6. STATUS OF CONTRACTOR. 6.1 Independent Contractor. Contractor is an independent contractor and not an employee of Agency. Agency shall have the right to control Contractor only insofar as the results of Contractor's Work and assignment of personnel pursuant to Section 1; otherwise, Agency shall not have the right to control the means by which Contractor accomplishes Work rendered pursuant to this Agreement. Notwithstanding any other Agency, state, or federal policy, rule, regulation, law, or ordinance to the contrary, Contractor and any of its employees, agents, and subcontractors providing services under this Agreement shall not qualify for or become entitled to, and hereby agree to waive any and all claims to, any compensation, benefit, or any incident of employment by Agency, including but not limited to eligibility to enroll in the California Public Employees Retirement System (PERS) as an employee of Agency and entitlement to any contribution to be paid by Agency for employer contributions and/or employee contributions for PERS benefits. Contractor shall indemnify, defend, and hold harmless Agency for the payment of any employee and/or employer contributions for PERS benefits on behalf of Contractor or its employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of Agency. Contractor and Agency acknowledge and agree that compensation paid by Agency to Contractor under this Agreement is based upon Contractor's estimated costs of providing the Work, including salaries and benefits of employees, agents and subcontractors of Contractor. 6.2 Contractor Not Agent. Except as Agency may specify in writing, Contractor shall have no authority, express or implied, to act on behalf of Agency in any capacity whatsoever as an agent. Contractor shall have no authority, express or implied, pursuant to this Agreement to bind Agency to any obligation whatsoever. General Services Agreement 5 Trimark Associates, Inc. 6.3 Assignment and Subcontracting. This Agreement contemplates personal performance by Contractor and is based upon a determination of Contractor's unique professional competence, experience, and specialized professional knowledge. A substantial inducement to Agency for entering into this Agreement was and is the personal reputation and competence of Contractor. Contractor may not assign this Agreement or any interest therein without the prior written approval of the Agency. Contractor shall not subcontract any portion of the performance contemplated and provided for herein, other than to the subcontractors identified in Exhibit A, without prior written approval of the Agency. Where written approval is granted by the Agency, Contractor shall supervise all work subcontracted by Contractor in performing the Work and shall be responsible for all work performed by a subcontractor as if Contractor itself had performed such Work. The subcontracting of any work to subcontractors shall not relieve Contractor from any of its obligations under this Agreement with respect to the Work and Contractor is obligated to ensure that any and all subcontractors performing any Work shall be fully insured in all respects and to the same extent as set forth under Section 4, to Agency's satisfaction. Section 7. LEGAL REQUIREMENTS. 7.1 Governing Law. The laws of the State of California shall govern this Agreement. 7.2 Compliance with Applicable Laws. Contractor and its subcontractors and agents, if any, shall comply with all laws applicable to the performance of the work hereunder. 7.3 Licenses and Permits. Contractor represents and warrants to Agency that Contractor and its employees, agents, and subcontractors (if any) have and will maintain at their sole expense during the term of this Agreement all licenses, permits, qualifications, and approvals of whatever nature that are legally required to practice their respective professions. 7.4 Work Requiring Payment of Prevailing Wages. If applicable, in accordance with California Labor Code Section 1771, not less than the general prevailing rate of per diem wages for work of a similar character in the locality in which these services are to be performed, and not less than the general prevailing rate of per diem wages for holiday and overtime work fixed as provided in the California Labor Code shall be paid to all workers engaged in performing the services under this Agreement. Section 8. TERMINATION AND MODIFICATION. 8.1 Termination. Agency may cancel this Agreement at any time and without cause upon ten (10) days prior written notice to Contractor. In the event of termination, Contractor shall be entitled to compensation for Work satisfactorily completed as of the effective date of termination; Agency, however, may condition payment of such compensation upon Contractor delivering to Agency any or all records or documents (as referenced in Section 9.1 hereof). General Services Agreement 6 Trimark Associates, Inc. 8.2 Amendments. The Parties may amend this Agreement only by a writing signed by all the Parties. 8.3 Survival. All obligations arising prior to the termination of this Agreement and all provisions of this Agreement allocating liability between Agency and Contractor shall survive the termination of this Agreement. 8.4 Options upon Breach by Contractor. If Contractor materially breaches any of the terms of this Agreement, including but not limited to those set forth in Section 4, Agency's remedies shall include, but not be limited to, the following: 8.4.1 Immediately terminate the Agreement; 8.4.2 Retain the plans, specifications, drawings, reports, design documents, and any other work product prepared by Contractor pursuant to this Agreement; 8.4.3 Retain a different Contractor to complete the Work not finished by Contractor; and/or 8.4.4 Charge Contractor the difference between the costs to complete the Work that is unfinished at the time of breach and the amount that Agency would have paid Contractor pursuant hereto if Contractor had completed the Work. Section 9. KEEPING AND STATUS OF RECORDS. 9.1 Records Created as Part of Contractor's Performance. All reports, data, maps, models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records, files, or any other documents or materials, in electronic or any other form, that Contractor prepares or obtains pursuant to this Agreement and that relate to the matters covered hereunder shall be the property of the Agency. Contractor hereby agrees to deliver those documents to the Agency upon termination of the Agreement. Agency and Contractor agree that, unless approved by Agency in writing, Contractor shall not release to any non-parties to this Agreement any data, plans, specifications, reports and other documents. 9.2 Contractor's Books and Records. Contractor shall maintain any and all records or other documents evidencing or relating to charges for Work or expenditures and disbursements charged to the Agency under this Agreement for a minimum of three (3) years, or for any longer period required by law, from the date of final payment to the Contractor to this Agreement. 9.3 Inspection and Audit of Records. Any records or documents that this Agreement requires Contractor to maintain shall be made available for inspection, audit, and/or copying at any time during regular business hours, upon oral or written request of the Agency. Under California Government Code Section 8546.7, if the amount of public funds General Services Agreement 7 Trimark Associates, Inc. expended under this Agreement exceeds ten thousand dollars ($10,000.00), the Agreement shall be subject to the examination and audit of the State Auditor, at the request of Agency or as part of any audit of the Agency, for a period of three (3) years after final payment under the Agreement. 9.4 Confidential Information and Disclosure. 9.4.1 Confidential Information. The term "Confidential Information", as used herein, shall mean any and all confidential, proprietary, or trade secret information, whether written, recorded, electronic, oral or otherwise, where the Confidential Information is made available in a tangible medium of expression and marked in a prominent location as confidential, proprietary and/or trade secret information. Confidential Information shall not include information that: (a) was already known to the Receiving Party or is otherwise a matter of public knowledge, (b) was disclosed to Receiving Party by a third party without violating any confidentiality agreement, (c) was independently developed by Receiving Party without reverse engineering, as evidenced by written records thereof, or (d) was not marked as confidential Information in accordance with this section. 9.4.2 Non -Disclosure of Confidential Information. During the term of this Agreement, either party may disclose ("The Disclosing Party") confidential Information to the other party ("the Receiving Party"). The Receiving Party: (a) shall hold the Disclosing Party's Confidential Information in confident; and (b) shall take all reasonable steps to prevent any unauthorized possession, use, copying, transfer or disclosure of such Confidential Information. 9.4.3 Permitted Disclosure. Notwithstanding the foregoing, the following disclosures of Confidential Information are allowed. Receiving Party shall endeavor to provide prior written notice to Disclosing Party of any permitted disclosure made pursuant to Section 9.4.3.2 or 9.4.3.3. Disclosing Party may seek a protective order, including without limitation, a temporary restraining order to prevent or contest such permitted disclosure; provided, however, that Disclosing Party shall seek such remedies at its sole expense. Neither party shall have any liability for such permitted disclosures: 9.4.3.1 Disclosure to employees, agents, Contractors, contractors, subcontractors or other representatives of Receiving Party that have a need to know in connection with this Agreement. 9.4.3.2 Disclosure in response to a valid order of a court, government or regulatory agency or as may otherwise be required by law; and 9.4.3.3 Disclosure by Agency in response to a request pursuant to the California Public Records Act. General Services Agreement 8 Trimark Associates, Inc. 9.4.4 Handling of Confidential Information. Conclusion of Agreement. Receiving Party shall return to Disclosing Party or destroy Confidential Information (including all copies thereof) upon termination of this Agreement, if requested by Disclosing Party in writing. Notwithstanding the foregoing, the Receiving Party may retain copies of such Confidential Information, subject to the confidentiality provisions of this Agreement: (a) for archival purposes in its computer system; (b) in its legal department files; and (c) in files of Receiving Party's representatives where such copies are necessary to comply with applicable law. Party shall not disclose the Disclosing Party's Information to any person other than those of the Receiving Party's employees, agents, Contractors, contractors and subcontractors who have a need to know in connection with this Agreement. Section 10. PROJECT SITE. 10.1 Operations at the Project Site. Each Project Site may include the power plant areas, all buildings, offices, and other locations where Work is to be performed, including any access roads. Contractor shall perform the Work in such a manner as to cause a minimum of interference with Agency's operations and the operations of other contractors at the Project Site and to protect all persons and property thereon from damage or injury. Upon completion of the Work at a Project Site, Contractor shall leave such Project Site clean and free of all tools, equipment, waste materials and rubbish, stemming from or relating to Contractor's Work. 10.2 Contractor's Equipment, Tools, Supplies and Materials. Contractor shall be solely responsible for the transportation, loading and unloading, and storage of any equipment, tools, supplies or materials required for performing the Work, whether owned, leased or rented. Agency will not be responsible for any such equipment, supplies or materials which may be lost, stolen or damaged or for any additional rental charges for such. Equipment, tools, supplies and materials left or stored at a Project Site, with or without permission, is at Contractor's sole risk. Agency may assume that anything left on the Project Site an unreasonable length of time after the Work is completed has been abandoned. Any transportation furnished by Agency shall be solely as an accommodation and Agency shall have no liability therefor. Contractor shall assume the risk and is solely responsible for its owned, non -owned and hired automobiles, trucks or other motorized vehicles as well as any equipment, tools, supplies, materials or other property which is utilized by Contractor on the Project Site. All materials and supplies used by Contractor in the Work shall be new and in good condition. 10.3 Use of Agency Equipment. Contractor shall assume the risk and is solely responsible for its use of any Agency owned equipment and property provided by Agency for the performance of Work. Section 11. WARRANTY. General Services Agreement 9 Trimark Associates, Inc. Nature of Work. In addition to any and all warranties provided or implied by law or public policy, Contractor warrants that all Work shall be free from defects in design and workmanship, and that Contractor shall perform all Work in accordance with applicable federal, state, and local laws, rules and regulations including engineering, construction and other codes and standards and prudent electrical utility standards, and in accordance with the terms of this Agreement. 11.2 Deficiencies in Work. In addition to all other rights and remedies which Agency may have, Agency shall have the right to require, and Contractor shall be obligated at its own expense to perform, all further Work which may be required to correct any deficiencies which result from Contractor's failure to perform any Work in accordance with the standards required by this Agreement. If during the term of this Agreement or the one (1) year period following completion of the Work, any equipment, supplies or other materials or Work used or provided by Contractor under this Agreement fails due to defects in material and/or workmanship or other breach of this Agreement, Contractor shall, upon any reasonable written notice from Agency, replace or repair the same to Agency's satisfaction. 11.3 Assignment of Warranties. Contractor hereby assigns to Agency all additional warranties, extended warranties, or benefits like warranties, such as insurance, provided by or reasonably obtainable from suppliers of equipment and material used in the Work. Section 12. HEALTH AND SAFETY PROGRAMS. The Contractor shall establish, maintain, and enforce safe work practices, and implement an accident/incident prevention program intended to ensure safe and healthful operations under their direction. The program shall include all requisite components of such a program under Federal, State and local regulations and shall comply with all Agency site programs. 12.1 Contractor is responsible for acquiring job hazard assessments as necessary to safely perform the Work and provide a copy to Agency upon request. 12.2 Contractor is responsible for providing all employee health and safety training and personal protective equipment in accordance with potential hazards that may be encountered in performance of the Work and provide copies of the certified training records upon request by Agency. Contractor shall be responsible for proper maintenance and/or disposal of their personal protective equipment and material handling equipment. 12.3 Contractor is responsible for ensuring that its lower -tier subcontractors are aware of and will comply with the requirements set forth herein. 12.4 Agency, or its representatives, may periodically monitor the safety performance of the Contractor performing the Work. Contractors and its subcontractors shall be required to comply with the safety and health obligations as established in the Agreement. Non- compliance with safety, health, or fire requirements may result in cessation of work activities, until items in non-compliance are corrected. It is also expressly acknowledged, understood and agreed that no payment shall be due from Agency to Contractor under this General Services Agreement 10 Trimark Associates, Inc. Agreement at any time when, or for any Work performed when, Contractor is not in full compliance with this Section 12. 12.5 Contractor shall immediately report any injuries to the Agency site safety representative. Additionally, the Contractor shall investigate and submit to the Agency site safety representative copies of all written accident reports, and coordinate with Agency if further investigation is requested. 12.6 Contractor shall take all reasonable steps and precautions to protect the health of its employees and other site personnel with regard to the Work. Contractor shall conduct occupational health monitoring and/or sampling to determine levels of exposure of its employees to hazardous or toxic substances or environmental conditions. Copies of any sampling results will be forwarded to the Agency site safety representative upon request. 12.7 Contractor shall develop a plan to properly handle and dispose of any hazardous wastes, if any, Contractor generates in performing the Work. 12.8 Contractor shall advise its employees and subcontractors that any employee, who jeopardizes his/her safety and health, or the safety and health of others, may be subject to actions including removal from Work. 12.9 Contractor shall, at the sole option of the Agency, develop and provide to the Agency a Hazardous Material Spill Response Plan that includes provisions for spill containment and clean-up, emergency contact information including regulatory agencies and spill sampling and analysis procedures. Hazardous Materials to include diesel fuel used for trucks owned or leased by the Contractor. Section 13. MISCELLANEOUS PROVISIONS. 13.1 Attorneys' Fees. If a party to this Agreement brings any action, including an action for declaratory relief, to enforce or interpret the provision of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees in addition to any other relief to which that party may be entitled. The court may set such fees in the same action or in a separate action brought for that purpose. 13.2 Venue. In the event that either party brings any action against the other under this Agreement, the Parties agree that trial of such action shall be vested exclusively in the state courts of California in the County of Placer or in the United States District Court for the Eastern District of California. 13.3 Severability. If a court of competent jurisdiction finds or rules that any provision of this Agreement is invalid, void, or unenforceable, the provisions of this Agreement not so adjudged shall remain in full force and effect. The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement. General Services Agreement 11 Trimark Associates, Inc. 13.4 No Implied Waiver of Breach. The waiver of any breach of a specific provision of this Agreement does not constitute a waiver of any other breach of that term or any other term of this Agreement. 13.5 Successors and Assigns. The provisions of this Agreement shall inure to the benefit of and shall apply to and bind the successors and assigns of the Parties. 13.6 Conflict of Interest. Contractor may serve other clients, but none whose activities within the corporate limits of Agency or whose business, regardless of location, would place Contractor in a "conflict of interest," as that term is defined in the Political Reform Act, codified at California Government Code Section 81000 et seq. Contractor shall not employ any Agency official in the work performed pursuant to this Agreement. No officer or employee of Agency shall have any financial interest in this Agreement that would violate California Government Code Sections 1090 et seq. 13.7 Contract Administrator. This Agreement shall be administered by the Assistant General Manager of Administrative Services, or his/her designee, who shall act as the Agency's representative. All correspondence between Agency and Contractor shall be directed to or through the Contract Administrator. 13.8 Notices. Any written notice to Contractor shall be sent to: Trimark Associates, INC 2365 Iron Point Rd #100 Folsom, CA 95630 Any written notice to Agency shall be sent to: General Manager Northern California Power Agency 651 Commerce Drive Roseville, CA 95678 With a copy to: Michael F. Dean General Counsel Northern California Power Agency Meyers Nave 555 Capitol Mall, Suite 1200 Sacramento, CA 95814 General Services Agreement 12 Trimark Associates, Inc. 13.9 Professional Seal. Where applicable in the determination of the Agency, the first page of a technical report, first page of design specifications, and each page of construction drawings shall be stamped/sealed and signed by the licensed professional responsible for the report/design preparation. 13.10 Integration; Incorporation. This Agreement, including all the exhibits attached hereto, represents the entire and integrated agreement between Agency and Contractor and supersedes all prior negotiations, representations, or agreements, either written or oral. All exhibits attached hereto are incorporated by reference herein. 13.11 Alternative Dispute Resolution. If any dispute arises between the Parties that cannot be settled after engaging in good faith negotiations, Agency and Contractor agree to resolve the dispute in accordance with the following: 13.11.1 Each party shall designate a senior management or executive level representative to negotiate any dispute; 13.11.2 The representatives shall attempt, through good faith negotiations, to resolve the dispute by any means within their authority. 13.11.3 If the issue remains unresolved after fifteen (15) days of good faith negotiations, the Parties shall attempt to resolve the disagreement by negotiation between legal counsel. If the above process fails, the Parties shall resolve any remaining disputes through mediation to expedite the resolution of the dispute. 13.11.4 The mediation process shall provide for the selection within fifteen (15) days by both Parties of a disinterested third person as mediator, shall be commenced within thirty (30) days and shall be concluded within fifteen (15) days from the commencement of the mediation. 13.11.5 The Parties shall equally bear the costs of any third party in any alternative dispute resolution process. 13.11.6 The alternative dispute resolution process is a material condition to this Agreement and must be exhausted as an administrative prior to either Party initiating legal action. This alternative dispute resolution process is not intended to nor shall be construed to change the time periods for filing a claim or action specified by Government Code §§ 900 et seq. 13.12 Controlling Provisions. In the case of any conflict between the terms of this Agreement and the Exhibits hereto, and Contractor's Proposal (if any), the Agreement shall control. In the case of any conflict between the Exhibits hereto and the Contractor's Proposal, the Exhibits shall control. 13.13 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be an original and all of which together shall constitute one agreement. General Services Agreement 13 Trimark Associates, Inc. 13.14 Construction of Agreement. Each party hereto has had an equivalent opportunity to participate in the drafting of the Agreement and/or to consult with legal counsel. Therefore, the usual construction of an agreement against the drafting party shall not apply hereto. 13.15 No Third Party Beneficiaries. This Agreement is made solely for the benefit of the parties hereto, with no intent to benefit any non-signator third parties. General Services Agreement 14 Trimark Associates, Inc. The Parties have executed this Agreement as of the date signed by the Agency. NORTHERN CALIFORNIA POWER AGENCY TRIMARK ASSOCIATES, INC. Date: Date: JAMES H. POPE, General Manager Attest: Secretary of the Commission Approved as to Form: General Counsel General Services Agreement 15 Trimark Associates, Inc. EXHIBIT A SCOPE OF WORK The Scope of Work provided in accordance with this Agreement are described below, and have been made for the purpose of monitoring, maintaining and repairing Supervisory Control and Data Acquisition systems ("SCADA"), metering equipment (including CAISO revenue quality metering equipment), and any communications or interface devices provided by Contractor (all of which are referred to herein as "Equipment") located at or installed on the premises of the Project sites listed in Exhibit C ("Project Sites"). Pursuant to this Agreement, Contractor agrees to perform the following Work: 1. Support for failures of Equipment: a. Provide remote network or dial -in support service to troubleshoot and make repairs of the Equipment located at each Project Site for any reported failures within: (i) four (4) hours from the time support is requested during business hours, or (ii) within 24 hours from the time support is requested during any hours that are not business hours; b. Provide support service at each Project Site (if necessary) within one (1) business day following a reported failure related to the Equipment; and c. Provide one (1) annual emergency visit for each Project Site (if necessary) to repair or replace failed Equipment, including travel and other expenses as incurred by Contractor. For the purpose of this Exhibit A, "business hours" are defined as 8:00 a.m. through 5:00 p.m. (PT), Monday through Friday, not including Federal Reserve Bank holidays. During normal business hours, Agency may request support for failures of Equipment by contacting the Contractor's help desk at 866-995- 5970. For requests made during hours that are not within normal business hours, Agency may request support for failures of Equipment by contacting the Contractor representatives listed below: • Jae Kim: 818-825-0205 • Mario Marquez: 916-398-0584 • Jennifer Rauschenbach: jrauschenbach@trimarkassoc.com 2. Equipment monitoring and maintenance: a. Conduct one (1) annual maintenance inspection and assessment of the Equipment at each Project Site; such includes: i. Clean the computer equipment, perform backups and updates; i i . Replace the meter battery (on a two (2) year cycle) and conduct a meter registration test (annually); i i i . Inspect Equipment for any corrosion, deterioration or other pending circumstances that may lead to or make failure eminent; and iv. Maintain current configuration files and documentation on the Equipment, including databases and configuration detail for SCADA 3. Miscellaneous Work performed on a time and materials basis: General Services Agreement 16 Trimark Associates, Inc. a. Upon request made by Agency to Contractor, Contractor may perform Work consistent with the general scope of work performed in accordance with this Agreement; the general descriptions of tasks and hourly fees for such Work are further described in Table B of Exhibit B General Services Agreement 17 Trimark Associates, Inc. EXHIBIT B COMPENSATION AND HOURLY FEES SCHEDULE Compensation for Work provided under this Agreement will be based on the Compensation and Hourly Fee Schedule listed in this Exhibit B: 1. Annual fee for Equipment monitoring and maintenance, and support for failure of Equipment: TABLE A Contract Year Compensation Schedule 2015 $ 56,802 2016 $ 58,341 2017 $ 59,926 2018 $ 61,558 2019 $ 63,240 The annual compensation amounts listed in Table A are for all Equipment identified in Exhibit C. The annual compensation amounts listed in Table A are escalated at a three percent (3%) annual rate for the term of this Agreement. 2. Hourly fee for other Work performed on a time and materials basis: TABLE B Area Classification Hourly Rate Management and Consulting Program Manager / Executive QA $265 Senior Management Consultant $250 Director of Engineering $245 Senior Project Manager $215 Associate Project Manager $205 System Integration Manager $215 Project Coordinator $175 Engineering / Systems Integration Senior Engineer $225 Electrical Engineer $215 Systems Integration Engineer $205 Communications Engineer $195 Communications Technician $190 Field Systems Specialist $170 CAD Manager $155 CAD Technician $135 General Services Agreement Trimark Associates, Inc. 18 Electric Metering Meter Engineer $205 Metering Supervisor / Superintendent $195 Certified CAISO Metering Inspector $175 Journey Meterman $160 Apprentice Meterman $135 Meter Data Management MDMA Manager $205 Senior Data Analyst $195 Data Acquisition Systems Specialist $185 Database Manager $175 Associate Data Analyst $160 Electrical Contracting / Construction Journey Electronics Technician $205 Electronics Technician $175 Journey Electrician $155 Apprentice Electrician $135 Administrative $90 Expenses Parts and Material Cost +12% Out -of -Pocket. Expenses Cost +12% Travel (Mileage) $0.565 / Mile Travel labor Time (75% of Billing Rate) All hourly rates listed in Table B shall be adjusted as follows when Work is performed during non -business hours: • Sundays and Federal Reserve Bank holidays — Hourly Rate x 200% • Other non -business hours — Hourly Rate x 150% NOTE: As a public agency, Agency shall not reimburse Contractor for travel, food and related costs in excess of those permitted by the Internal Revenue Service. General Services Agreement 19 Trimark Associates, Inc. EXHIBIT C PROJECT SITES AND EQUIPMENT TABLE C Site Name Site Type SCADA Allen/ pack / Main & Back Up Bradley Annual Cost RTU 1 Meter ID# pLC per Site 1Biggs 12 KV Load 1 2950012 / 5914081 - $2534.62 Biggs 60 KV Load 1 2950011 / 5914082 - $2534.62 Gridley Load 1 2950013 / 5914083 - $2534.62 Healdsburg Load 1 2950014 / 5914084 - $2783.77 Lodi Industrial Load - 2950015 / 5914085 2950016/5914086 - $2445.60 Lodi White Slough Load 1 2950017 / 5914087 - $2445.60 Lompoc Load 1 2950018 / 5914088 2950019/5914089 - $4690.11 Oakland Airport Load 1 2950020 / 5914090 2950021/5914091 - $2772.51 Oakland Station C Load 1 2950030 / 5914092 - $2772.51 Oakland Station J Load 1 2950031 / 5914093 - $2772.51 Oakland Marina Load 1 5914098 / 2950023- - $2772.51 Palo Alto Colorado Line -1 Load 1 2950027 / 5914094 - $3002.18 Palo Alto Colorado Line - 2 Load 1 2950028 / 5914095 - $3002.18 $2943.18 Palo Alto Colorado Line - 3 Load 1 2950029 / 5914096 - Palo Alto COBUG Generation 1 2950079 / 5914140 - Plumas Marble Load 1 5910584 $1834.94 Plumas Quincy Load 1 2950039 / 5914102 - $3669.87 Plumas High Sierra Generation - 5910747 / 5914183 $3669.87 Ukiah Orchard Load 1 2950026 / 5914100 - $3476.35 Ukiah — Lake Mendocino Generation - 2950025 / 5914101 3 -PLC 10,11,12 $3476.35 The Annual Cost per Site compensation rates listed in Table C above describe how the compensation amount listed in Table A of Exhibit B is assigned to specific Equipment listed in this Exhibit C. As described in Exhibit A, the annual compensation amount shall be escalated at a three percent (3%) annual rate through the term of this Agreement. General Services Agreement 20 Trimark Associates, Inc. CITY 0 - PALO ALTO City of Palo Alto (ID # 5238) City Council Staff Report Report Type: Consent Calendar Meeting Date: 12/15/2014 Summary Title: Award of Construction and Construction Management Contracts and BAO for El Camino Park Restoration Title: Approve a Contract with Goodland Landscape Construction, Inc. in the Amount of $4,441,520.11; Authorize the City Manager or his Designee to Negotiate and Execute One or More Change Orders to the Contract with Goodland Landscape Construction, Inc., Not to Exceed $444,151; Approve a Contract with NOVA Partners, Inc. in the Amount of $319,880 for Construction Management Services; and Adopt a Budget Amendment Ordinance in the Total Amount of $1,343,047 to increase the El Camino Park Restoration Project by $1,343,047, offset by a $246,000 transfer from the Park Development Impact Fee Fund, a $45,000 reduction to the Bicycle and Pedestrian Transportation Projects capital project, and a reduction to the Infrastructure Reserve (IR) by $1,052,047 From: City Manager Lead Department: Public Works Recommendation Staff recommends that Council: 1. Approve and authorize the City Manager or his designee to execute a contract (Attachment A) with Goodland Landscape Construction, Inc. for construction of El Camino Park Restoration project in the amount of $4,441,520; 2. Authorize the City Manager or his designee to negotiate and execute one or more change orders to the contract with Goodland Landscape Construction, Inc. for related, additional but unforeseen work which may develop during the project, the total value of which shall not exceed $444,151; City of Palo Alto Page 1 3. Approve and authorize the City Manager or his designee to execute a contract (Attachment B) with NOVA Partners, Inc. in an amount not to exceed $319,880 for Construction Management Services, including $290,800 for basic services and $29,080 for additional services; and 4. Adopt a Budget Amendment Ordinance (Attachment C) in the Capital Improvement Fund to increase the El Camino Park Restoration Project (PE - 13016) by a total amount of $1,343,047, offset by a transfer from the Parks Development Impact Fee Fund in the amount of $246,000, a reduction to the Bicycle and Pedestrian Transportation Projects (PL -04010) in the amount of $45,000, and a reduction to the Infrastructure Reserve in the amount of $1,052,047. Executive Summary The El Camino Park Restoration project will restore the park following its 2011 deconstruction to allow for the installation of an emergency water supply reservoir beneath the park, and will also add new features including a synthetic turf playing field, field lighting, a new restroom, an expanded parking lot, and other features. This report recommends Council approval of the construction contract and the construction management contract for the project. The report also recommends approval of a Budget Amendment Ordinance to provide the remaining funding needed for the project. Background El Camino Park was closed to the public in October 12, 2011 to allow for the construction of the City of Palo Alto Emergency Water Supply and Storage project (WS -08002). The Water Fund was responsible for the cost of restoring El Camino Park to its original condition. In April 2012, Council approved the revised design of El Camino Park and authorized the allocation of Park Development Impact fees to fund the components of the project that were beyond the cost of restoring the park to its original condition (staff report ID #2411). The El Camino Park Emergency Water Reservoir project was completed in January 2014. In October 2014, Council adopted a Park Improvement Ordinance for the El Camino Restoration project and staff provided the status and timeline for the design and construction phases (staff report ID #4578). Staff proposed a project scope to City of Palo Alto Page 2 include the addition of north field lighting, upgrades to create a class -one bike/pedestrian path, addition of pathway LED lights and environmentally friendly artificial turf for Council's consideration. These improvements were estimated to increase the project budget by approximately $0.9 million and were proposed to be funded from Infrastructure Reserve (IR) funds and Park Development Impact Fees through a Budget Amendment Ordinance (BAO) concurrent with Council approval of the construction contract. Discussion The El Camino Park Restoration Project includes new athletic fields, synthetic turf, field lighting, fencing, a new restroom, scorekeeper booth and storage buildings, an expanded parking lot, new pathways, landscaping, benches, and other amenities. Staff is recommending approval of a contract to construct all proposed improvements at approximately $4.9 million which includes a 10% contingency for this regional park (Attachment A). Contractor Bidding Staff researched and tested artificial turf systems that would meet stringent environmental standards and specified these turf products in the bid documents. Staff also specified that any contractor intending to submit a bid was required to provide experience installing artificial turf systems. All five bidders provided experience showing relevant, successful artificial turf installations using the turf products specified. On November 5, 2014, a notice inviting formal bids (IFB) for the El Camino Park Restoration project was sent to nine contractors and thirteen builder's exchanges. The bidding period was 21 days. Bids were received from five contractors on November 25, 2014, as listed on the attached bid summary (Attachment D). Bids ranged from a low of $4.4 million to a high of $5.3 million. Solicitation: IFB 156916 Palo Alto El Camino Park Restoration Project Proposed Length of Project 270 Days Number of Bids Mailed to Contractors 7 Number of Bids Mailed to Builder's Exchanges 13 City of Palo Alto Page 3 Total Days to Respond to Bid 21 Pre -Bid Meeting November 12, 2014 Number of Company Attendees at Pre -Bid Meeting 9 Number of Bids Received 5 Base Bid Price Range low of $4,441,520 $5,349,110 to a high of Staff has reviewed all bids submitted and recommends that Goodland Landscape Construction, Inc. be declared the lowest responsible bidder. Staff recommends that the City award the Base Bid for a total contract award of $4,441,520. The potential savings of the deduct alternates is minor and is not recommended for the project. The Base Bid including the north field lights, artificial turf with more cushion for improved safety and increased durability, a twelve foot wide class -one bike path and other amenities such as LED lighting on the pathways will increase public access and use for the restored park. The pathway lighting was included in the base bid due to building code requirements, and the north field lighting deduct alternate was much less than staff's estimate. The pathway alternate to reduce the bike lane to eight feet wide could not be realized without significant redesign along the entire length of the bike lane, so this savings was not worth considering. The base bid of $4.44 million is five percent higher than the construction cost estimate for the project of $4.23 million. The high bid is twenty-seven percent above the estimate. The range of bids is indicative of a changing economic climate where many recent project starts both locally and regionally are quickly driving up construction prices. Staff confirmed with the Contractor's State License Board that Goodland Landscape Construction, Inc. has an active license on file. Staff checked references supplied by the contractor for previous work performed and found no major complaints. Staff reviewed the subcontractor information submitted by Goodland Landscape Construction, Inc. and determined that the subcontractors meet the qualification requirements established for the project. A standard construction contingency amount of 10 percent is requested for the El Camino Park Restoration project. City of Palo Alto Page 4 Request for Proposals/Construction Management Services The City released a Request for Proposal (RFP) for construction management services and received two proposals on Wednesday, November 12, 2014. The proposals were from Nova Partners, Inc. (Nova) and Cambridge CM, Inc. Staff evaluated and reviewed the proposals based on the following criteria: cost, proposer's financial stability, quality and completeness of the proposals and the proposer's experience, including the experience of staff to be assigned to the project, and the completion of similar projects of scope and complexity. Staff selected Nova based on their team's experience and their demonstrated ability to keep projects within budget, as well as their lower fee proposal. Solicitation: RFP 156829 Construction Management Services for the Palo Alto El Camino Park Restoration Project RFP issued October 21, 2014 Proposed Length of Project 11 months Number of proposals emailed to Consultants 7 Number of proposals emailed to professional exchanges 0 Total Days to Respond to Proposal 23 Pre -Proposal Meeting October 29, 2014 Number of Company Attendees at Pre -Proposal Meeting 9 Deadline for questions/clarifications November 5, 2014 Number of Proposals Received 2 Price Range for Total Basic Services* low of $290,800 to a high of $299,192 *Total Basic Services exclude the ten percent additional services allowance Construction management services will include inspections, coordination of special inspections and inspection requests, maintaining project documentation, and establishing and tracking deadlines for submittals, schedules, and responses to requests for information (RFIs). Additionally, Nova will review monthly progress payments for accuracy and percentage of completion, change order requests, change orders, claims, and provide community outreach. Staff City of Palo Alto Page 5 recommends approval of a not to exceed $319,880 contract with Nova for these services, $290,800 for basic services and a ten percent additional service allowance of $29,080. The duration of the contract with Nova will extend through November 2015, one month beyond the construction period, to review as -built drawings and to assist staff in closing out the project. Budget Amendment Ordinance Staff recommends that the City Council adopt a Budget Amendment Ordinance (BAO) to provide the additional appropriation of $1,343,047 needed to complete the El Camino Restoration project (PE -13016). The October 20, 2014 staff report on El Camino Park estimated an additional budgetary need of $1,130,000. The increase of approximately $230,000 is due to the increased cost of the low construction bid relative to staff's construction cost estimate. (Please note that the October 20, 2014 staff report mistakenly stated the construction cost estimate to be $4.4 million. The project budget figures cited in that report were based upon the correct cost estimate of $4.23 million.) The proposed adjustment of $1,343,047 would be supported from three funding sources: 1) a transfer from the Parks Development Impact Fee Fund in the amount of $246,000, 2) a $45,000 reduction to the Bicycle and Pedestrian Transportation Plan project (PL -04010) and 3) a reduction to the Infrastructure Reserve in the Capital Improvement Fund in the amount of $1,052,047. The transfer from the Park Development Fee Fund of $246,000 represents the amount available in this fund that is in addition to the $2,761,000 that is reserved for the Byxbee Park per the City Council approved Infrastructure Funding Plan. Timeline The El Camino Park Restoration construction project is expected to begin in January 2015 and to be completed in October 2015. The project building permit is ready to be issued. Resource Impact The projected total cost for the El Camino Park Restoration project, as provided to Council in October 2014 (staff report ID #4578), was $5.53 million. At that time, there was a projected funding shortfall of $1.13 million. The current total project cost for the El Camino Park Restoration Project is $5.74 million, resulting in a funding shortfall of $1.34 million. $45,000 of this shortfall is City of Palo Alto Page 6 proposed to be supported by the Bicycle and Pedestrian Transportation Plan Project (PL -04010) to pay for the cost of the Class 1 Bike/Pedestrian Path upgrade. Since the total cost of the class -one bike path is approximately $148,000 (bid item numbers 54A, 55 and 58), widening the path from eight feet to twelve feet is approximately 30% of the total cost or $45,000. Funding of $246,000 is proposed from the Parks Development Impact Fee Fund, with funding of $1,052,047 from the Infrastructure Reserve. Staff is cognizant of the need to preserve the Infrastructure Reserve funds that were identified to support the Council Infrastructure Plan in June 2014, and believes that the pledged funds from the Infrastructure Reserve in the amount of $12.5 million will be available as the Infrastructure Plan will be implemented. Budget and Funding Sources are summarized in the table below Project Budget Budget Description/Notes Project Construction Cost $4.89 million Includes added project scope in Base Bid and 10% contingency Project Design $0.40 million Construction Management $0.32 million Includes 10% additional services budget Other costs $0.13 million Permits, inspection, utilities connections Final Project Budget $5.74 million Reported as $5.53 million in Oct.2014 Existing Appropriation $4.4 million Approx. Funds previously appropriated to the park project, Note: actual amount is $4,395,286 Total New BAO Request $1,343,047 New appropriation needed to match Final Project Budget. Refer to Attachment C. Funding Sources Amount _ Description/Notes PL -04010, Bicycle & Pedestrian Transportation Plan Projects ($45,000) Expand the exisitng eight foot wide class -one bike/pedestrian path to 12 feet. Based on estimate of bid items. City of Palo Alto Page 7 Park Development Impact Fees ($246,000) Uncommitted funds available (net of Byxbee Park project in Council Infrastructure Plan) Infrastructure Reserve ($1,052,047) Remaining funding needed Total Funding ($1,343,047) Policy Implications This recommendation does not represent a change in City policy and is consistent with Council's previous direction. Environmental Review The Utilities Department's El Camino Park Reservoir project was subject to environmental review under provisions of the California Environmental Quality Act (CEQA). An addendum to the Environmental Impact Report (EIR) was prepared and approved by the Director of Planning and Community Environment to address the additional park improvements that were not contemplated by the original EIR. Attachments: • A - Construction Contract C15156916 - El Camino Park Restoration Project (PDF) • B - C15156829 NOVA Partners CM Services El Camino Park Restoration (PDF) • C - El Camino Park BAO (DOCX) • D - Bid Summary (PDF) City of Palo Alto Page 8 CITY OF PALO ALTO CONSTRUCTION CONTRACT Contract No. C15156916 City of Palo Alto And Goodland Landscape Construction, Inc. El Camino Park Restoratio PE -13016 n Project Invitation for Bid (IFB) 1 Rev. January 2014 CONSTRUCTION CONTRACT No. C15156916 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 SECTION 4 CONTRACTOR'S DUTY 6 SECTION 5 PROJECT TEAM 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 Other Remedies. 7 6.5 Adjustments to Contract Time. 8 SECTION 7 COMPENSATION TO CONTRACTOR. 8 7.1 Contract Sum. 8 7.2 Full Compensation. 8 SECTION 8 STANDARD OF CARE. 8 SECTION 9 INDEMNIFICATION 8 9.1 Hold Harmless. 8 9.2 Survival. 9 SECTION 10 NONDISCRIMINATION. 9 SECTION 11 INSURANCE AND BONDS. 9 SECTION 12 PROHIBITION AGAINST TRANSFERS 9 SECTION 13 NOTICES 10 13.1 Method of Notice 10 13.2 Notice Recipents 10 13.3 Change of Address. 10 SECTION 14 DEFAULT 11 Invitation for Bid (IFB) 2 Rev. January 2014 CONSTRUCTION CONTRACT No. C15156916 14.1 Notice of Default. 11 14.2 Opportunity to Cure Default. 11 SECTION 15 CITY'S RIGHTS AND REMEDIES. 11 15.1 Remedies Upon Default. 11 15.1.1 Delete Certain Services. 11 15.1.2 Perform and Withhold. 11 15.1.3 Suspend The Construction Contract. 11 15.1.5 Invoke the Performance Bond. 12 15.1.6 Additional Provisions. 12 15.2 Delays by Sureties. 12 15.3 Damages to City. 12 15.3.1 For Contractor's Default. 12 15.3.2 Compensation for Losses. 12 15.4 Suspension by City 13 15.4.1 Suspension for Convenience. 13 15.5 Termination Without Cause. 13 15.5.1 Compensation. 13 15.5.2 Subcontractors. 14 15.6 Contractor's Duties Upon Termination. 14 SECTION 16 CONTRACTOR'S RIGHTS AND REMEDIES. 14 16.1 Contractor's Remedies. 14 16.1.1 For Work Stoppage 15 16.1.2 For City's Non -Payment. 15 16.2 Damages to Contractor. 15 SECTION 17 ACCOUNTING RECORDS. 15 17.1 Financial Management and City Access. 15 17.2 Compliance with City Requests. 15 SECTION 18 INDEPENDENT PARTIES. 15 SECTION 19 NUISANCE. 16 SECTION 20 PERMITS AND LICENSES. 16 SECTION 21 WAIVER. 16 SECTION 22 GOVERNING LAW AND VENUE 16 Invitation for Bid (IFB) 3 Rev. January 2014 CONSTRUCTION CONTRACT No. C15156916 SECTION 23 COMPLETE AGREEMENT. 16 SECTION 24 SURVIVAL OF CONTRACT 16 SECTION 25 PREVAILING WAGES. 16 SECTION 26 NON APPROPRIATION. 17 SECTION 27 AUTHORITY. 17 SECTION 28 COUNTERPARTS 17 SECTION 29 SEVERABILITY. 17 SECTION 30 STATUTORY AND REGULATORY REFERENCES . 17 SECTION 31 WORKERS' COMPENSATION CERTIFICATION. 17 Invitation for Bid (IFB) 4 Rev. January 2014 CONSTRUCTION CONTRACT No. C15156916 CONSTRUCTION CONTRACT THIS CONSTRUCTION CONTRACT entered into on December 15, 2014 ("Execution Date") by and between the CITY OF PALO ALTO, a California chartered municipal corporation ("City"), and GOODLAND LANDSCAPE CONSTRUCTION, INC. ("Contractor"), is made with reference to the following: RECITALS: 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 Class A "General Engineering Contractor" and C-27 "Landscaping Contractor" duly organized and in good standing in the State of California, Contractor's License Number 716914. 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 4, 2014, City issued an Invitation for Bids (IFB) to contractors for the El Camino Park Restoration Project ("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 Contract 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 El Camino Park Restoration Project, located at 155 El Camino Real, Palo Alto, CA ("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 Invitation for Bid (IFB) 5 Rev. January 2014 CONSTRUCTION CONTRACT No. C15156916 2) Field Orders 3) Contract 4) Bidding Addenda 5) Special Provisions 6) General Conditions 7) Project Plans and Drawings 8) Technical Specifications 9) Instructions to Bidders 10) Invitation for Bids 11) Contractor's Bid/Non-Collusion Affidavit 12) Reports listed in the Contract Documents 13) Public Works Department's Standard Drawings and Specifications (most current version at time of Bid) 14) Utilities Department's Water, Gas, Wastewater, Electric Utilities Standards (most current version at time of Bid) 15) City of Palo Alto Traffic Control Requirements 16) City of Palo Alto Truck Route Map and Regulations 17) Notice Inviting Pre -Qualification Statements, Pre -Qualification Statement, and Pre - Qualification Checklist (if applicable) 18) Performance and Payment Bonds 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 CONTRACTOR'S DUTY. Contractor agrees to perform all of the Work required for the Project, as specified in the Contract Documents, all of which are fully incorporated herein. Contractor shall provide, furnish, and supply all things necessary and incidental for the timely performance and completion of the Work, including, but not limited to, provision of all necessary labor, materials, equipment, transportation, and utilities, unless Invitation for Bid (IFB) 6 Rev. January 2014 CONSTRUCTION CONTRACT No. C15156916 otherwise specified in the Contract Documents. Contractor also agrees to use its best efforts to complete the Work in a professional and expeditious manner and to meet or exceed the performance standards required by the Contract Documents. 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 Contract 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 270 calendar days after the commencement date specified in City's Notice to Proceed. By executing this Construction Contract, Contractor expressly waives any claim for delayed early completion. 6.4 Liquidated Damages. Pursuant to Government Code Section 53069.85, if Contractor fails to achieve Substantial Completion of the entire Work within the Contract Time, including any approved extensions thereto, City may assess liquidated damages on a daily basis for each day of Unexcused Delay in achieving Substantial Completion, based on the amount of Five Hundred dollars ($500.00) per day, or as otherwise specified in the Special Provisions. Liquidated damages may also be separately assessed for failure to meet milestones specified elsewhere in the Contract Documents, regardless of impact on the time for achieving Substantial Completion. The assessment of liquidated damages 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. The City is entitled to setoff the amount of liquidated damages assessed against any payments otherwise due to Contractor, including, but not limited to, setoff against release of retention. If the total amount of liquidated damages assessed exceeds the amount of unreleased retention, City is entitled to recover the balance from Contractor or its sureties. Occupancy or use of the Project in whole or in part prior to Substantial Completion, shall not operate as a waiver of City's right to assess liquidated damages. 6.4.1 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. Invitation for Bid (IFB) 7 Rev. January 2014 CONSTRUCTION CONTRACT No. C15156916 6.5 Adjustments to Contract Time. The Contract Time may only be adjusted for time extensions approved by City and memorialized in a Change Order approved 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 the Contract Sum of Four Million Four Hundred Forty One Thousand Five Hundred Twenty Dollars and Eleven Cents ($4,441,520.11). [This amount includes the Base Bid.] 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, except as expressly provided herein. The Contract Sum may only be adjusted for Change Orders approved in accordance with the requirements of the Contract Documents. 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. 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 individually referred to as an "Indemnitee" and collectively referred to as "Indemnitees"), through legal counsel acceptable to City, from and against any and liability, loss, damage, claims, expenses (including, without limitation, attorney fees, expert witness fees, paralegal fees, and fees and costs of litigation or arbitration) (collectively, "Liability") of every nature arising out of or in connection with the acts or omissions of Contractor, its employees, Subcontractors, representatives, or agents, in performing the Work or its failure to comply with any of its obligations under the Contract, except such Liability caused by the active negligence, sole negligence, or willful misconduct of an Indemnitee. Contractor shall pay City for any costs City incurs to enforce this provision. Except as provided in Section 9.2 below, 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. Invitation for Bid (IFB) 8 Rev. January 2014 CONSTRUCTION CONTRACT No. C15156916 Pursuant to Public Contract Code Section 9201, City shall timely notify Contractor upon receipt of any third -party claim relating to the Contract. 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. Within ten (10) business days following issuance of the Notice of Award, Contractor shall provide City with evidence that it has obtained insurance and shall submit Performance and Payment Bonds satisfying all requirements in Article 11 of the General Conditions. SECTION 12 PROHIBITION AGAINST TRANSFERS. City is entering into this Construction Contract in reliance 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, and shall be deemed a substantial breach of contract and grounds for default in addition to any other legal or equitable remedy available to the City. 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. Invitation for Bid (IFB) 9 Rev. January 2014 CONSTRUCTION CONTRACT No. C15156916 13.2 Notice Recipients. All notices, demands or requests (including, without limitation, Change Order Requests and 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: Copy to: City of Palo Alto City Clerk 250 Hamilton Avenue P.O. Box 10250 Palo Alto, CA 94303 City of Palo Alto Public Works Administration 250 Hamilton Avenue Palo Alto, CA 94301 Attn: Elizabeth Ames, Project Manager 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: GOODLAND LANDSCAPE CONSTRUCTION, INC. 2455 N. Naglee Road, #402 Tracy, CA 94304 Attn: Dena Marie Wortham 13.3 Change of Address. In advance of any change of address, Contractor shall notify City 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. Invitation for Bid (IFB) 10 Rev. January 2014 CONSTRUCTION CONTRACT No. C15156916 SECTION 14 DEFAULT. 14.1 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, with a copy to Contractor's performance bond surety. 14.2 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 15 CITY'S RIGHTS AND REMEDIES. 15.1 Remedies Upon Default. If Contractor fails to cure any default of this Construction Contract within the time period set forth above in Section 14, then City may pursue any remedies available under law or equity, including, without limitation, the following: 15.1.1 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. 15.1.2 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. 15.1.3 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 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. 15.1.4 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 14. 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. Invitation for Bid (IFB) 11 Rev. January 2014 CONSTRUCTION CONTRACT No. C15156916 15.1.5 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. 15.1.6 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. 15.2 Delays by Sureties. Time being of the essence in the performance of the Work, if Contractor's surety fails to arrange for completion of the Work in accordance with the Performance Bond, within seven (7) calendar days from the date of the notice of termination, Contractor's surety shall be deemed to have waived its right to complete the Work under the Contract, and City may immediately make arrangements for the completion of the Work through use of its own forces, by hiring a replacement contractor, or by any other means that City determines advisable under the circumstances. Contractor and its surety shall be jointly and severally liable for any additional cost incurred by City to complete the Work following termination. In addition, City shall have the right to use any materials, supplies, and equipment belonging to Contractor and located at the Worksite for the purposes of completing the remaining Work. 15.3 Damages to City. 15.3.1 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. 15.3.2 Compensation for Losses. In the event that City's Losses arise from Contractor's default under the Contract Documents, City shall be entitled to deduct the cost of such Losses from monies otherwise payable to Contractor. If the Losses incurred by City exceed the amount payable, Contractor shall be liable to City for the difference and shall promptly remit same to City. Invitation for Bid (IFB) 12 Rev. January 2014 CONSTRUCTION CONTRACT No. C15156916 15.4 Suspension by City 15.4.1 Suspension 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. 15.4.2 Suspension for Cause. In addition to all other remedies available to City, if Contractor fails to perform or correct work in accordance with the Contract Documents, City may immediately order the Work, or any portion thereof, suspended until the cause for the suspension has been eliminated to City's satisfaction. Contractor shall not be entitled to an increase in Contract Time or Contract Price for a suspension occasioned by Contractor's failure to comply with the Contract Documents. City's right to suspend the Work shall not give rise to a duty to suspend the Work, and City's failure to suspend the Work shall not constitute a defense to Contractor's failure to comply with the requirements of the Contract Documents. 15.5 Termination Without Cause. City may, at its sole discretion and without cause, terminate this Construction Contract in part or in whole upon written notice to Contractor. Upon receipt of such notice, Contractor shall, at City's expense, comply with the notice and take all reasonable steps to minimize costs to close out and demobilize. The compensation allowed under this Paragraph 15.5 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. Termination pursuant to this provision does not relieve Contractor or its sureties from any of their obligations for Losses arising from or related to the Work performed by Contractor. 15.5.1 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 15.5.1, 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: (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. Invitation for Bid (IFB) 13 Rev. January 2014 CONSTRUCTION CONTRACT No. C15156916 .3 For Fabricated Items. Previously unpaid cost of any items delivered to the Project Site which were fabricated for subsequent incorporation in the Work. .4 Profit Allowance. An allowance for profit calculated as four percent (4%) of the sum of the above items, provided Contractor can prove a likelihood that it would have made a profit if the Construction Contract had not been terminated. 15.5.2 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. 15.6 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: (1) 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. Upon termination, whether for cause or for convenience, the provisions of the Contract Documents remain in effect as to any Claim, indemnity obligation, warranties, guarantees, submittals of as -built drawings, instructions, or manuals, or other such rights and obligations arising prior to the termination date. SECTION 16 CONTRACTOR'S RIGHTS AND REMEDIES. 16.1 Contractor's Remedies. Contractor may terminate this Construction Contract only upon the occurrence of one of the following: Invitation for Bid (IFB) 14 Rev. January 2014 CONSTRUCTION CONTRACT No. C15156916 16.1.1 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 clue 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. 16.1.2 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. 16.2 Damages to Contractor. In the event of termination for cause by Contractor, City shall pay Contractor the sums provided for in Paragraph 15.5.1 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 17 ACCOUNTING RECORDS. 17.1 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 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. 17.2 Compliance with City Requests. Contractor's compliance with any request by City pursuant to this Section 17 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 17.1 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 18 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. Invitation for Bid (IFB) 15 Rev. January 2014 CONSTRUCTION CONTRACT No. C15156916 SECTION 19 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 20 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 21 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 22 GOVERNING LAW AND VENUE. This Construction Contract shall be construed in accordance with and governed by the laws of the State of California, and venue shall be in a court of competent jurisdiction in the County of Santa Clara, and no other place. SECTION 23 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 24 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 25 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 Invitation for Bid (IFB) 16 Rev. January 2014 CONSTRUCTION CONTRACT No. C15156916 Project is funded one hundred percent (100%) by the City of Palo Alto. This Project remains subject to all other applicable provisions of the California Labor Code and regulations promulgated thereunder. 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 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 26 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 27 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 28 COUNTERPARTS This Agreement may be signed in multiple counterparts, which shall, when executed by all the parties, constitute a single binding agreement. SECTION 29 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. SECTION 30 STATUTORY AND REGULATORY REFERENCES. With respect to any amendments to any statutes or regulations referenced in these Contract Documents, the reference is deemed to be the version in effect on the date that the Contract was awarded by City, unless otherwise required by law. SECTION 31 WORKERS' COMPENSATION CERTIFICATION. Pursuant to Labor Code Section 1861, by signing this Contract, Contractor certifies as follows: "I am aware of the provisions of Section 3700 of the Labor Code which require every employer to be insured against Invitation for Bid (IFB) 17 Rev. January 2014 CONSTRUCTION CONTRACT No. C15156916 liability for workers' compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the Work on this Contract." 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 APPROVED: Public Works Director GOODLAND LANDSCAPE CONSTRUCTION, INC. By Name: Title: Invitation for Bid (IFB) 18 Rev. January 2014 CONSTRUCTION CONTRACT No. C15156916 DocuSign Envelope ID: 63DA4642-0474-44D9-9A54-8A3E30C5D2D7 CITY OF PALO ALTO CONTRACT NO. C15156829 AGREEMENT BETWEEN THE CITY OF PALO ALTO AND NOVA PARTNERS, INC. FOR PROFESSIONAL SERVICES This Agreement is entered into on 15th day of December 2014, ("Agreement") by and between the CITY OF PALO ALTO, a California chartered municipal corporation ("CITY"), and NOVA PARTNERS, INC., a California corporation, located at 855 El Camino Real, Suite 307, Palo Alto, CA 94301-2326 ("CONSULTANT"). RECITALS The following recitals are a substantive portion of this Agreement. A. CITY intends to rennovate the El Camino Park. The construction project will include demolition, site grading, natural and synthetic turf athletic fields, drainage systems, scorekeepers building, restroom facility, park entrance improvements, parking lot expansion, pathways, sidewalks, fencing, passive parks, underground utilities, park and sports field lighting, landscaping, irrigation and site amenities. ("Project") The City desires to engage a consultant to support City staff during the construction of the El Camino Park Restoration Project in the City of Palo Alto 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 Professional Services Rev. Feb. 2014 1 DocuSign Envelope ID: 63DA4642-0474-44D9-9A54-8A3E30C5D2D7 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 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 Hundred Ninety Thousand Eight Hundred Dollars ($290,800). In the event Additional Services are authorized, the total compensation for Services, Additional Services and reimbursable expenses shall not exceed Three Hundred Nineteen Thousand Eight Hundred Eighty Dollars ($319,880.00). 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. Professional Services Rev. Feb. 2014 2 C:\Users\mnolen\Documents\C15156829 NOVA Partners CM Services El Camino Park.docx DocuSign Envelope ID: 63DA4642-0474-44D9-9A54-8A3E30C5D2D7 SECTION 6. QUALIFICATIONS/STANDARD OF CARE. All of the Services shall be performed by CONSULTANT or under CONSULTANT's supervision. CONSULTANT represents that it possesses the professional and technical personnel necessary to perform the Services required by this Agreement and that the personnel have sufficient skill and experience to perform the Services assigned to them. CONSULTANT represents that it, its employees and subconsultants, if permitted, have and shall maintain during the term of this Agreement all licenses, permits, qualifications, insurance and approvals of whatever nature that are legally required to perform the Services. All of the services to be furnished by CONSULTANT under this agreement shall meet the professional standard and quality that prevail among professionals in the same discipline and of similar knowledge and skill engaged in related work throughout California under the same or similar circumstances. 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 2 C:\Users\mnolen\Documents\C15156829 NOVA Partners CM Services El Camino Park.docx DocuSign Envelope ID: 63DA4642-0474-44D9-9A54-8A3E30C5D2D7 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: 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 Hans De Roos as the Senior Project Manager to have supervisory responsibility for the performance, progress, and execution of the Services and Ron Barri as the project Field Managementto 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 Elizabeth Ames, Public Works Department, Engineering Division, 250 Hamilton Avenue, Palo Alto, CA 94303, Telephone:650-329-2502. The project manager will be CONSULTANT's point of contact with respect to performance, progress and execution of the Services. The CITY may designate an alternate project manager from time to time. SECTION 14. OWNERSHIP OF MATERIALS. Upon delivery, all work product, including without limitation, all writings, drawings, plans, reports, specifications, calculations, documents, other materials and copyright interests developed under this Agreement shall be and remain the exclusive property of CITY without restriction or limitation upon their use. CONSULTANT agrees that all copyrights which arise from creation of the work pursuant to this Agreement shall be vested in CITY, and CONSULTANT waives and relinquishes all claims to copyright or other intellectual property rights in favor of the CITY. Neither CONSULTANT nor its contractors, if any, shall make any of such materials available to any individual or organization without the prior written approval of the 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 Professional Services Rev. Feb. 2014 3 C:\Users\mnolen\Documents\C15156829 NOVA Partners CM Services El Camino Park.docx DocuSign Envelope ID: 63DA4642-0474-44D9-9A54-8A3E30C5D2D7 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. n [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. [71[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, ordinance or law, or of any subsequent breach or violation of the same or of any other term, covenant, condition, provision, ordinance or law. Professional Services Rev. Feb. 2014 5 C:\Users\mnolen\Documents\C15156829 NOVA Partners CM Services El Camino Park.docx DocuSign Envelope ID: 63DA4642-0474-44D9-9A54-8A3E30C5D2D7 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 C:\Users\mnolen\Documents\C15156829 NOVA Partners CM Services El Camino Park.docx DocuSign Envelope ID: 63DA4642-0474-44D9-9A54-8A3E30C5D2D7 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 C:\Users\mnolen\Documents\C15156829 NOVA Partners CM Services El Camino Park.docx DocuSign Envelope ID: 63DA4642-0474-44D9-9A54-8A3E30C5D2D7 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 C:\Users\mnolen\Documents\C15156829 NOVA Partners CM Services El Camino Park.docx DocuSign Envelope ID: 63DA4642-0474-44D9-9A54-8A3E30C5D2D7 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 executed by all the parties, constitute a single binding agreement. Professional Services Rev. Feb. 2014 9 C:\Users\mnolen\Documents\C15156829 NOVA Partners CM Services El Camino Park.docx DocuSign Envelope ID: 63DA4642-0474-44D9-9A54-8A3E30C5D2D7 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 Attachments: EXHIBIT "A": EXHIBIT "B": EXHIBIT "C": EXHIBIT "C-1": EXHIBIT "D": NOVA PARTNERS, INC. ByeDocuSigned by: tbL Maus 42E6A67E5533425... Name: David Marks Title: vice Presi dent SCOPE OF WORK SCHEDULE OF PERFORMANCE COMPENSATION SCHEDULE OF RATES INSURANCE REQUIREMENTS Professional Services Rev. Feb. 2014 10 C:\Users\mnolen\Documents\C15156829NOVA Partners CM Services El Camino Park.docx DocuSign Envelope ID: 63DA4642-0474-44D9-9A54-8A3E30C5D2D7 EXHIBIT "A" SCOPE OF SERVICES 1. INTRODUCTION This contract is for Construction Management to support City staff during the construction of the El Camino Park Restoration Project in the City of Palo Alto. The construction project will entail and include demolition, site grading, natural and synthetic turf athletic fields, drainage systems, scorekeepers building, restroom facility, park entrance improvements, parking lot expansion, pathways, sidewalks, fencing, passive parks, underground utilities, park and sports field lighting, landscaping, irrigation and site amenities. 2. SCOPE OF SERVICES General Requirements NOVA Partners, Inc., (hereinafter "Consultant") shall provide a construction professional or professionals to represent the City at the construction site full time. This on -site representative(s) of the CONSULTANT such as a field inspector and construction manager, shall be approved by the City as having appropriate work experience for the position. If at any time, the City is not satisfied with the performance of CONSULTANT staff, the City reserves the right to request the services of a different individual. If for any reason the CONSULTANT proposes a change of staffing during the course of the project, the City reserves the right to approve any new staff. CONTRACTOR shall provide 10 feet x 10 feet office space with electric and internet. CONSULTANT shall provide their own equipment, including office and computer equipment. The on -site representative(s) of the Consultatn shall have knowledge of civil engineering, park construction, C3/SWPPP, synthetic turf and field lights installation, traffic control, public outreach, City Caltrans and Caltrain standards and specifications, public works and utilities contracting principles and regulations, and Critical Path Management (CPM). During the construction period, the Consultant's on -site representative shall work full-time at the construction site unless otherwise approved by the City. The Consultant shall work with the Public Works Engineering Division and other agencies for coordination of the project. Phase I — Construction Phase Construction Management General: CONSULTANT shall be the point of contact for the project's contractor (Contractor). CONSULTANT shall work with the Designer and City to resolve any issues that may arise during construction. Daily Construction Management: CONSULTANT shall: 1. Oversee the day-to-day construction work performed by the Contractor and subcontractors. Professional Services Rev. Feb. 2014 11 C:\Users\mnolen\Documents\C15156829NOVA Partners CM Services El Camino Park.docx DocuSign Envelope ID: 63DA4642-0474-44D9-9A54-8A3E30C5D2D7 2. Track the construction process, schedule, maintaining daily reports, verifying submittal compliance, logistics, and activities and direct precautionary measures to ensure that all aspects of construction are followed and documented per contract documents. 3. Work with the Contractor to implement logistical measures to minimize any impacts to the City operations and the nearby residential neighborhood and businesses. 4. Ensure that coordination is maintained between all parties that must be made aware of daily construction activities and that good communication is maintained. 5. Implement expeditious methods for resolving conflicts. Night time and weekend work may be required periodically to minimize impacts or due to delay in schedule, therefore CONSULTANT services shall still be required in full effect. CONSULTANT shall allocate forty (40) hours of night time and weekend work as an "Optional Task" for the life of the project. Any additional hours beyond the forty hours shall be compensated as an Additional Service. Unless otherwise directed by City, the CONSULTANT shall budget for and be prepared to work on all State and Federal holidays except for the fourth Thursday of November (Thanksgiving Day); December 24 and 25, January 1S`, Memorial Day, July 4th and Labor Day. Documentation: CONSULTANT shall: 1. Prepare and/or review all necessary documentation for the project including, but not limited to, daily logs and inspection progress reports, photos/videos, RFI, correspondence, shop drawings, and other contractor submittals. 2. Maintain all files and documentation for properly managing the project. 3. Track all RFI, correspondence and submittal status. Responses, approvals, and decisions to Contractor's documents shall be provided in a timely manner and as required in the construction documents. 4. Review and comment on any project -related correspondence as requested by the City's Project Manager (PM). Routine correspondence that is related to product information or minor design issues may be prepared and answered by CONSULTANT on its letterhead, with copies of the response directed to PM and DESIGNER. Correspondence requiring City response shall be reviewed, approved, and signed only by PM. Submittals: CONSULTANT shall log, track, check for errors, review, and route to appropriate personnel all project submittals (i.e. shop drawings, product information, substitution request, and samples) for approval in timely manner as required by the construction documents and in order to prevent any delays to the project. Comments from different reviewers of the submittal shall be compiled before being returned to the Contractor for revisions. Weekly Meeting: CONSULTANT shall schedule, coordinate, conduct, keep meeting minutes and distribute to Contractor, sub-contractor(s) and City staff including staff from Community Services, Public Works and Utilities Engineering and Operations, Caltrain, City's Building Department, testing firm and arborists for the duration for the project. Construction Schedule: CONSULTANT shall: 1. Review the Contractor's construction schedule. 2. Analyze, monitor, and request updates for the master schedule as the project progresses. 3. Analyze the schedule for logical construction, constraints, level of critical activities and to verify progress in conjunction with the analysis of pay applications. Professional Services Rev. Feb. 2014 12 C:\Users\mnolen\Documents\C15156829NOVA Partners CM Services El Camino Park.docx DocuSign Envelope ID: 63DA4642-0474-44D9-9A54-8A3E30C5D2D7 4. Review contractors' individual CPM schedules, monitor the contractor's progress, notify the City of any slippage, and coordinate contractor recovery plans. Progress Payments: CONSULTANT shall review progress payment requests submitted by Contractor, within five (5) days of receipt and verify the accuracy and percentage of completion against the schedule, and resolve any discrepancies in the invoices. CONSULTANT shall review the invoices and backup for completeness and compliance with contract documents and make a recommendation to PM for payment of the progress payment requests. Change Order Monitoring and Processing: CONSULTANT shall: 1. Review and evaluate all Contractor extra work requests. 2. Review the contract documents to determine entitlement, complete an independent estimate of the cost of the changes, and reconcile with the contractor's change order request. 3. Prepare extra scope of work authorizations for City approval and track all scope and schedule changes. Should there be disagreements with the validity of change orders, CONSULTANT shall implement expeditious methods for resolving conflicts. Claims: CONSULTANT shall analyze various claims from the contractors (i.e. compensation and delay) as to whether they are excusable, inexcusable, or compensable. CONSULTANT shall advise City regarding what action(s) to take in a timely manner. Meetings: Throughout the construction process, CONSULTANT shall: 1. Prepared to address comments and concerns of the construction contractors, City staff and the general public on an as -needed basis. 2. Set up and conduct weekly progress meetings and any other meetings necessary to facilitate the project work. 3. Write and distribute the meeting agendas, and meeting minutes, including: City - CONSULTANT meetings, regular site meetings, meetings with the City staff, contractors, various City departments and also the public. The meeting minutes shall explicitly track who has the responsibility for each action item with expected completion dates. Community Outreach The CONSULTANT shall work with a City representative to prepare project updates for the City website as well as to prepare a monthly community e-mail bulletin needed to keep the public informed of project status and upcoming work efforts. CONSULTANT shall be prepared to answer questions or complaints from the public. Miscellaneous: CONSULTANT shall monitor Contractor's compliance in general with the construction documents and contract. CONSULTANT shall address comments and concerns of the contractors and the DESIGNER as needed. Testing: CONSULTANT shall coordinate with the City's hired testing agency services for any needed materials testing and/or special inspections. CONSULTANT shall ensure that all required sign -offs are reviewed and distributed and are in compliance with the City's specification. Professional Services Rev. Feb. 2014 13 C:\Users\mnolen\Documents\C15156829NOVA Partners CM Services El Camino Park.docx DocuSign Envelope ID: 63DA4642-0474-44D9-9A54-8A3E30C5D2D7 Quality Control and Assurance: CONSULTANT shall monitor and document the contractors' work for any deviations in scope, schedule or performance and keep the City informed of any issues that may arise. Record Drawings: CONSULTANT shall coordinate the preparation of record drawings with the contractors and DESIGNER on a regular basis, both during the construction and post construction phases, and review the drawings for "as -built" accuracy. Substantial Completion: As per the construction contract, once the Contractor nears the end of their contracted work and requests `substantial completion' status, CONSULTANT shall work with the Contractor (in coordination with the Designer) and shall prepare and compile a project punch list that will be forwarded to the Contractor. CONSULTANT shall oversee the completion of the punch list items before the final Notice of Completion is issued. Phase II Post Construction — Project Close Out Record Drawings: CONSULTANT shall coordinate the preparation of record drawings with the contractors and Designer on a regular basis, both during the construction and post construction phases, and review the drawings for "as -built" accuracy. Close Out: CONSULTANT shall ensure completion and delivery of all required close out documentations including operation and maintenance manuals, record drawings, and warranties. CONSULTANT shall review all these materials for compliance with the contract documents and for completeness. Any deficiencies or discrepancies shall be reported to Contractor for corrections and re -submittal. CONSULTANT shall work under the direction of the PM to resolve any contract claim issues that may arise (stop work notices, bonding, delays, extra work, etc). Files to City: CONSULTANT shall consolidate and deliver all project files and documentation maintained to be retained by the City. Reimbursables Reimbursables shall include, but are not limited to outreach materials, postage, signage or other items not included herein. Travel, mileage, computer and phone charges shall be considered as included in the CONSULTANT overhead costs. Any needed office supplies shall be provided by CONSULTANT and shall be considered to be included in the Scope of Services above. Additional Services Additional Services fee and work scope shall be negotiated in advance of any work being performed. No work shall be done prior to written authorization by the City's Project Manager. Additional Services shall include, but are not limited to, additional meetings, extended work hours, additional testing or inspection. Professional Services Rev. Feb. 2014 14 C:\Users\mnolen\Documents\C15156829NOVA Partners CM Services El Camino Park.docx DocuSign Envelope ID: 63DA4642-0474-44D9-9A54-8A3E30C5D2D7 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 No. of Months Completion from NTP 1. Phase I — Construction Phase (Task 1) 10 October 2015 2. Phase II — Post Construction — Project Close Out (Task 2) 1 November 2015 Professional Services Rev. Feb. 2014 15 C:\Users\mnolen\Documents\C15156829NOVA Partners CM Services El Camino Park.docx DocuSign Envelope ID: 63DA4642-0474-44D9-9A54-8A3E30C5D2D7 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 $290,800. 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 $319,880. 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 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 $290,800 and the total compensation for Additional Services does not exceed $319,880. BUDGET SCHEDULE NOT TO EXCEED AMOUNT Task 1 $268,500 (Construction Services) Task 2 $18,300 (Post Construction Services) Sub -total Basic Services $286,800 Reimbursable Expenses 4,000 Total Basic Services and Reimbursable expenses $290,800 Additional Services (Not to Exceed) $29,080 Maximum Total Compensation $319,880 REIMBURSABLE EXPENSES The administrative, overhead, secretarial time or secretarial overtime, word processing, photocopying, in-house printing, insurance and other ordinary business expenses are Professional Services Rev. Feb. 2014 14 C:\Users\mnolen\Documents\C15156829 NOVA Partners CM Services El Camino Park.docx DocuSign Envelope ID: 63DA4642-0474-44D9-9A54-8A3E30C5D2D7 included within the scope of payment for services and are not reimbursable expenses. CITY shall reimburse CONSULTANT for the following reimbursable expenses at cost. Expenses for which CONSULTANT shall be reimbursed are: A. Travel outside the San Francisco Bay area, including transportation and meals, will be reimbursed at actual cost subject to the City of Palo Alto's policy for reimbursement of travel and meal expenses for City of Palo Alto employees. B. Long distance telephone 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 $500 shall be approved in advance by the CITY's project manager. ADDITIONAL SERVICES The CONSULTANT shall provide additional services only by advanced, written authorization from the CITY. The CONSULTANT, at the CITY's project manager's request, shall submit a detailed written proposal including a description of the scope of services, schedule, level of effort, and CONSULTANT's proposed maximum compensation, including reimbursable expense, for such services based on the rates set forth in Exhibit C-1. The additional services scope, schedule and maximum compensation shall be negotiated and agreed to in writing by the CITY's Project Manager and CONSULTANT prior to commencement of the services. Payment for additional services is subject to all requirements and restrictions in this Agreement. Professional Services Rev. Feb. 2014 15 C:\Users\mnolen\Documents\C15156829 NOVA Partners CM Services El Camino Park.docx DocuSign Envelope ID: 63DA4642-0474-44D9-9A54-8A3E30C5D2D7 EXHIBIT "C-1" HOURLY RATE SCHEDULE Team Member Rate ($) 2015 Rate ($) 2016 1. Project principal 190 200 2. Senior Project Manager 165 170 3. Field/Project Manager 150-160 155-165 4. Project Engineer 135 143 5. Administrator 90-100 100-105 Professional Services Rev Feb. 2014 18 C:\Users\mnolen\Documents\C15156829 NOVA Partners CM Services El Camino Park.docx DocuSign Envelope ID: 63DA4642-0474-44D9-9A54-8A3E30C5D2D7 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-:VH, 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: REQUIRE D TYPE OF COVERAGE REQUIREMENT MINIMUM LIMITS EACH OCCURRENCE AGGREGATE YES WORKER'S COMPENSATION STATUTORY YES EMPLOYER'S LIABILITY STATUTORY BODILY INJURY $1,000,000 $1,000,000 YES GENERAL LIABILITY, INCLUDING PERSONAL INJURY, BROAD FORM PROPERTY DAMAGE $1,000,000 $1,000,000 PROPERTY DAMAGE BLANKET CONTRACTUAL, AND FIRE LEGAL BODILY INJURY & PROPERTY DAMAGE $1,000,000 $1,000,000 LIABILITY COMBINED. BODILY INJURY $1,000,000 $1,000,000 - EACH PERSON $1,000,000 $1,000,000 - EACH OCCURRENCE $1,000,000 $1,000,000 YES AUTOMOBILE LIABILITY, INCLUDING ALL OWNED, HIRED, NON -OWNED PROPERTY DAMAGE $1,000,000 $1,000,000 BODILY INJURY AND PROPERTY $1,000,000 $1,000,000 DAMAGE, COMBINED YES PROFESSIONAL LIABILITY, INCLUDING, ERRORS AND OMISSIONS, MALPRACTICE (WHEN APPLICABLE), AND NEGLIGENT PERFORMANCE ALL DAMAGES $1,000,000 YES NAMED AS AN ADDITIONAL INSURED: CONTRACTOR, AT ITS SOLE COST AND THE CITY OF PALO ALTO IS TO BE 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. IL CONTACTOR MUST SUBMIT CERTIFICATES(S) OF INSURANCE EVIDENCING REQUIRED COVERAGE. III. ENDORSEMENT PROVISIONS, WITH RESPECT TO THE INSURANCE AFFORDED TO "ADDITIONAL INSUREDS" A. PRIMARY COVERAGE WITH RESPECT TO CLAIMS ARISING OUT OF THE OPERATIONS OF THE NAMED INSURED, INSURANCE AS AFFORDED BY THIS POLICY IS PRIMARY AND IS NOT ADDITIONAL TO OR CONTRIBUTING WITH ANY OTHER INSURANCE CARRIED BY OR FOR THE BENEFIT OF THE ADDITIONAL INSUREDS. B. CROSS LIABILITY Professional Services Rev Feb. 2014 19 C:\Users\mnolen\Documents\C15156829 NOVA Partners CM Services El Camino Park.docx DocuSign Envelope ID: 63DA4642-0474-44D9-9A54-8A3E30C5D2D7 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 ISSUING COMPANY SHALL PROVIDE CITY AT LEAST A THIRTY (30) DAY WRITTEN NOTICE BEFORE THE EFFECTIVE DATE OF CANCELLATION. 2. IF THE POLICY IS CANCELED BEFORE ITS EXPIRATION DATE FOR THE NON- PAYMENT OF PREMIUM, THE ISSUING COMPANY SHALL PROVIDE CITY AT LEAST A TEN (10) DAY WRITTEN NOTICE BEFORE THE EFFECTIVE DATE OF CANCELLATION. NOTICES SHALL BE MAILED TO: PURCHASING AND CONTRACT ADMINISTRATION CITY OF PALO ALTO P.O. BOX 10250 PALO ALTO, CA 94303 Professional Services Rev Feb. 2014 20 C:\Users\mnolen\Documents\C15156829 NOVA Partners CM Services El Camino Park.docx Attachment C Ordinance No. XXXX ORDINANCE OF THE COUNCIL OF THE CITY OF PALO ALTO AMENDING THE BUDGET FOR FISCAL YEAR 2015 IN THE CAPITAL IMPROVEMENT FUND TO INCREASE THE EL CAMINO PARK RESTORATION PROJECT (PE - 13016) BY $1,343,047, OFFSET BY A REDUCTION TO THE INFRASTRUCTURE RESERVE IN THE AMOUNT OF $1,052,047, A REDUCTION TO THE BICYCLE AND PEDESTRIAN TRANSPORTATION PROJECTS (PL -04010) IN THE AMOUNT OF $45,000, AND A TRANSFER FROM THE PARKS DEVELOPMENT IMPACT FEE FUND IN THE AMOUNT OF $246,000. The Council of the City of Palo Alto does ORDAIN as follows: SECTION 1. A. Pursuant to the provisions of Section 12 of Article I I I 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. Since June 2010; City staff and the Parks and Recreation Commission have engaged in discussions about park improvements at El Camino Park that would coincide with the construction of the Utilities Department's El Camino Park Emergency Water Reservoir project. In order to allow for the project to be completed, El Camino Park needed to be deconstructed, with the Water Fund being responsible for returning the park to its original condition; and C. The Utilities and Community Services Departments have been working on the conceptual design of the restored park and playing fields since August 2010; and D. The Park and Recreation Commission has been closely involved with design of the park, including twelve public meetings between June 2010 and April 2012 to receive input from the public, field users, neighbors and other stakeholders on the design of fields, parking, a dog exercise area and other amenities of the park; and E. On April 23, 2012, the City Council approved the revised design of El Camino Park and authorized the allocation of $2,275,796 of Park Development Impact fees to fund the components of the project that were beyond the cost of restoring the park to its original condition; and F. Subsequent to the appropriation of Park Development Impact Fees, several delays were experienced, as outlined to the City Council in August 2013; and G. In December 2013, at a joint Parks and Recreation Commission (PRC) and City Council meeting, the City Council directed staff to investigate the community support and budgetary impacts of additional lighting for the north athletic field; and 1 Revised December 08, 2014 5238/eb H. Therefore, at the January 21, 2014 PRC meeting, staff presented a draft lighting plan for the synthetic turf field and on February 19, 2014, staff held a community meeting to discuss the lighting plan for the synthetic turf field. The meeting participants included field users and representatives from the 101 Alma condominiums. The participants agreed that the proposed lighting plan is appropriate for the site. Staff answered questions and verified that the field lights would be on no later than 10 p.m. controlled by an automated lighting system that staff can program remotely, and I. On October 20, 2014 the City Council approved the Contract Amendment No. 3 to Contract C10131396 in the amount of $47,850 with CDM Smith for the additional design efforts and construction administration during construction, and J. On October 20, 2014 the City Council adopted a Budget Amendment Ordinance to consolidate existing funds totaling $4,395,286 into Capital Improvement Program PE - 13016 from the El Camino Park Playing Fields and Amenities Project PG -13002 and from the El Camino Park Expanded Parking Lot and New Restroom Project PE -13016, and retitle PE - 13016 to "El Camino Park Restoration Project," and K. On October 21, 2014 a request for proposal (RFP) was posted to the City's website and sent to seven consulting firms; and L. Staff have reviewed all proposals submitted and recommends that the proposal of $290,800 submitted by NOVA Partners, Inc. be accepted and that NOVA Partners, Inc. be declared to be the Construction Manager; and M. Staff seeks approval for the City Manager or his designee to negotiate one or more change orders to the contract with NOVA Partners, Inc. for related, but unforeseen work (contingency) which may develop during the project, the total value of which shall not exceed $29,080, or ten percent; and N. On November 4, 2014 an Invitation for Bids (IFB) was posted to the City's website and sent to thirteen builder's exchanges and nine contractors; and O. Staff has reviewed all bids submitted and recommends that the bid of $4,441,521.11 submitted by Goodland Landscape Construction, Inc. be accepted and that Goodland Landscape Construction, Inc. be declared the lowest responsible bidder; and P. Staff seeks approval for the City Manager or his designee to negotiate one or more change orders to the contract with Goodland Landscape Construction, Inc. for related, but unforeseen work (contingency) which may develop during the project, the total value of which shall not exceed $444,152, or ten percent. 2 Revised December 08, 2014 5238/eb SECTION 2. In the Capital Improvement Fund, the sum of One Million Three Hundred Seventy Nine Thousand Seven Hundred Eleven Dollars ($1,343,047) is hereby appropriated to CIP Project PE -13016, El Camino Park Restoration Project, increasing the funding for this project to $5,738,333. This increase is offset by a transfer from the Parks Development Impact Fee Fund in the amount of Two Hundred Forty Six Thousand Dollars ($246,000), a reduction to the Bicycle and Pedestrian Transportation Projects (PL -04010) project in the amount of Forty Five Thousand Dollars ($45,000), as well as a reduction to the Infrastructure Reserve in the amount of One Million Fifty Two Thousand and Forty Seven Dollars ($1,052,047). In the Parks Development Impact Fee Fund, a transfer to the Capital Improvement Fund in the amount of Two Hundred Forty Six Thousand Dollars ($246,000) is hereby established, offset by a decrease to the ending fund balance. 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 Utilities Department's El Camino Park Reservoir Project was subject to environmental review under provisions of the California Environmental Quality Act (CEQA). A Draft Environmental Impact Report for this project was prepared and circulated on November 8, 2006, and a Final Environmental Impact Report for this project was prepared and circulated on February 8, 2007. Council certified the adequacy of the Final EIR in March 2007. An addendum to the EIR has been prepared to incorporate any additional park improvements described in this report that present potential new and/or significant environmental impacts not contemplated by the original EIR. // // // // // // // // // // // // // // // // // // // // 3 Revised December 08, 2014 5238/eb 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 4 Revised December 08, 2014 5238/eb ATTACHMENT D El Camino Park Restoration Project IFB No. 156916 Bid Summary CONTRACTOR Suarez & Munoz Robert A Beothman, Interstate Grading and BASE BID Construction, Inc. Inc. Paving, Inc. BID ITEM SITE PREPARATION AND GRADING APPROX. QTY UNIT PRICE TOTAL PRICE TOTAL PRICE TOTAL 1 Mobilization and Temporary Facilities 1 LS $ 280,000.00 $ 280,000.00 $ 370,900.00 $ 370,900.00 $ 70,000.00 $ 70,000.00 2 Temporary Fence (Type CL -6) 3,100 LF $ 2.00 $ 6,200.00 $ 3.40 $ 10,540.00 $ 4.00 $ 12,400.00 3 Field Engineering 1 LS $ 30,000.00 $ 30,000.00 $ 20,200.00 $ 20,200.00 $ 20,000.00 $ 20,000.00 4 Traffic Control include construction signs 1 LS $ 3,000.00 $ 3,000.00 $ 9,800.00 $ 9;800.00 $ 15 000.00 $ 15,000.00 5 Tree Removal (DBH 16" or greater) 3 EA $ 1,000.00 $ 3,000.00 $ 690.00 $ 2,070.00 $ 1,800.00 $ 5,400.00 6 Tree Protection Fencing 1,400 LF $ 1.00 $ 1,400.00 $ 5.70 $ 7,980.00 $ 5.00 $ 7,000.00 7 Site Preparation 1 LS $ 150,000.00 $ 150,000.00 $ 9,234.00 $ 9,234.00 $ 130,000.00 $ 130,000.00 8 Demolition - Remove Asphalt & Concrete 36,152 SF $ 1.00 $ 36 152.00 $ 0.60 $ 21,691.20 $ 1.20 $ 43,382.40 9 Demolition -Concrete Curbing 950 LF $ 2.00 $ 1,900.00 $ 2.00 $ 1,900.00 $ 13.00 $ 12,350.00 10 Demolition - Bathroom & Scorekeeper Booth including lead abatement 1 LS $ 17,000.00 $ 17,000.00 $ 11,153.00 $ 11,153.00 $ 14,000.00 $ 14,000.00 11 Miscellaneous Site Demolition (signs, fencing, netting, wood poles, etc.) 1 LS $ 50,000.00 $ 50,000.00 $ 25,117.00 $ 25,117.00 $ 13,000.00 $ 13,000.00 12 Temporary Erosion Control complete in place 1 LS $ 10,000.00 $ 10,000.00 $ 21,900.00 $ 21,900.00 $ 19,000.00 $ 19,000.00 13 Fiber Rolls 2,800 LF $ 1.00 $ 2,800.00 $ 2.30 $ 6,440.00 $ 5.00 $ 14,000.00 14 DI Protection 18 EA $ 200.00 $ 3,600.00 $ 156.00 $ 2,808.00 $ 100.00 $ 1,800.00 15 Earthwork (Rough Grading) 3,500 CY $ 42.00 $ 147,000.00 $ 41.00 $ 143,500.00 $ 33.00 $ 115,500.00 16 Finished Grading (Excluding Planters) 155,000 SF $ 0.50 $ 77,500.00 $ 0.44 $ 68,200.00 $ 0.55 $ 85,250.00 SITE UTILITIES 17 Site Drainage - 6" Soccer Filed Drain Including Gravel & Fabric 1,900 LF $ 20.00 $ 38,000.00 $ 27.00 $ 51,300.00 $ 55.00 $ 104,500.00 18 Site Drainage -12"HDPE 550 LF $ 43.00 $ 23,650.00 $ 65.00 $ 35,750.00 $ 64.00 $ 35,200.00 19 Site Drainage - 18" HDPE 106 LF $ 50.00 $ 5,300.00 $ 90.00 $ 9,540.00 $ 72.00 $ 7,632.00 20 Site Drainage - 36" HDPE Perforated 337 LF $ 140.00 $ 47,180.00 $ 136.00 $ 45,832.00 $ 160.00 $ 53,920.00 21 Site Drainage - 18" HDPE Perforated 90 LF $ 50.00 $ 4,500.00 $ 68.00 $ 6,120.00 $ 90.00 $ 8,100.00 22 Site Drainage -8" HDPE Perforated 728 LF $ 43.00 $ 31 304.00 $ 31.00 $ 22,568.00 $ 47.00 $ 34,216.00 23 Site Drainage -4" HDPE Perforated 282 LF $ 130.00 $ 36,660.00 $ 22.00 $ 6,204.00 $ 45.00 $ 12,690.00 24 Site Drainage-8"HDPE 65 LF $ 32.00 $ 2,080.00 $ 42.00 $ 2,730.00 $ 42.00 $ 2,730.00 25 Site Drainage - 12" HDPE perforated 361 LF $ 36.00 $ 12,996.00 $ 56.00 $ 20,216.00 $ 75.00 $ 27,075.00 26 Site Drainage -11 x 18 Arch Pipe 18 LF $ 145.00 $ 2,610.00 $ 220.00 $ 3,960.00 $ 200.00 $ 3,600.00 27 Site Drainage - Storm Cleanouts 2 EA $ 200.00 $ 400.00 $ 170.00 $ 340.00 $ 500.00 $ 1,000.00 28 Site Drainage -24" Standard Inlet 12 EA $ 2,500.00 $ 30,000.00 $ 2,120.00 $ 25,440.00 $ 1,000.00 $ 12,000.00 29 Site Drainage -8" Area Drain 2 EA $ 360.00 $ 720.00 $ 145.00 $ 290.00 $ 1,000.00 $ 2,000.00 30 Site Drainage -4" Trench Drain 20 LF $ 90.00 $ 1,800.00 $ 117.00 $ 2,340.00 $ 230.00 $ 4,600.00 31 Site Drainage - four 48" Manholes and drainage system complete in place 1 LS $ 20,000.00 $ 20,000.00 $ 16,144.00 $ 16,144.00 $ 24,000.00 $ 24,000.00 32 Sanitary Sewerage - One sewer manhole and system complete in place 1 LS $ 6,000.00 $ 6,000.00 $ 4,339.00 $ 4,339.00 $ 6,000.00 $ 6,000.00 33 Sanitary Sewerage 6" PVC line and system complete in place 40 LF $ 32.00 $ 1,280.00 $ 10.00 $ 400.00 $ 100.00 $ 4,000.00 34 Sanitary Sewerage 4" PVC line and system complete in place 150 LF $ 28.00 $ 4,200.00 $ 42.00 $ 6,300.00 $ 95.00 $ 14,250.00 35 Sanitary Sewerage Cleanout 3 EA $ 200.00 $ 600.00 $ 264.00 $ 792.00 $ 180.00 $ 540.00 36 Drinking Fountain (Including Sewer pump) 1 EA $ 6,000.00 $ 6,000.00 $ 5,034.00 $ 5,034.00 $ 7,000.00 $ 7,000.00 37 Potable Water Connection and system complete in place 1 LS $ 3,100.00 $ 3,100.00 $ 1,813.00 $ 1,813.00 $ 1,600.00 $ 1,600.00 38 Potable Water 2" Line 383 LF $ 30.00 $ 11,490.00 $ 34.00 $ 13,022.00 $ 62.00 $ 23,746.00 39 Irrigation Connection and system complete in place 1 LS $ 2,000.00 $ 2,000.00 $ 717.00 $ 717.00 $ 4,000.00 $ 4,000.00 ELECTRICAL 40 Furnish and Install New Switch Gear 1 EA $ 15,000.00 $ 15,000.00 $ 16,240.00 $ 16,240.00 $ 37,000.00 $ 37,000.00 41 Electrical system and one Transformer (NEMA 3R Transformer- "T1") complete in place 1 LS $ 2,500.00 $ 2,500.00 $ 37,000.00 $ 37,000.00 $ 26,000.00 $ 26,000.00 42 Point of Connection to two Irrigation Controllers complete in place 1 LS $ 1,500.00 $ 1,500.00 $ 2,165.00 $ 2,165.00 $ 1,100.00 $ 1,100.00 43 Point of Connection to Restroom complete in place 1 LS $ 2,500.00 $ 2,500.00 $ 1,624.00 $ 1,624.00 $ 24,000.00 $ 24,000.00 44 Point of Connection to Scorekeeper/Storage complete in place 1 LS $ 1,500.00 $ 1,500.00 $ 3,790.00 $ 3,790.00 $ 13,500.00 $ 13,500.00 45 Pathways/Security LED Lighting system complete in place 33 EA $ 5,000.00 $ 165,000.00 $ 7,579.00 $ 250,107.00 $ 7,000.00 $ 231,000.00 46 Six Parking Lot LED Lights and lighting system complete in place 1 LS $ 50,000.00 $ 50,000.00 $ 56,000.00 $ 56,000.00 $ 75,000.00 $ 75,000.00 47 No. 3 Pull Box Concrete 49 EA $ 500.00 $ 24,500.00 $ 325.00 $ 15,925.00 $ 240.00 $ 11,760.00 48 Wires, Conductor, Conduit 4,100 LF $ 30.00 $ 123,000.00 $ 26.00 $ 106,600.00 $ 18.00 $ 73,800.00 49 Sports Lighting Controls and system complete in place 1 LS $ 12,000.00 $ 12,000.00 $ 14,076.00 $ 14,076.00 $ 75,000.00 $ 75,000.00 50 Sports Lighting 70' Pole and Fixture 12 EAA $ 20,000.00 $ 240,000.00 $ 20,572.00 $ 246,864.00 $ 27,500.00 $ 330,000.00 51 Sports Lighting Foundations 12 EA $ 5,000.00 $ 60,000.00 $ 6,496.00 $ 77,952.00 $ 5,200.00 $ 62,400.00 52 Underground Existing Data from Pole at pump Station 350 LF $ 30.00 $ 10,500.00 $ 11.00 $ 3,850.00 $ 16.00 $ 5,600.00 53 Relocate and reconnect blue Light Phone 1 EA $ 2,500.00 $ 2,500.00 $ 3,790.00 $ 3,790.00 $ 2,800.00 $ 2,800.00 SITE PAVING 54 Paving - Asphalt Vehicular Section (3" AC/12" AB) 25,264 SF $ 6.50 $ 164,216.00 $ 5.10 $ 128,846.40 $ 4.40 $ 111,161.60 54A Paving - Bike Path Asphalt Paving (2" AC/6" AB) 13,812 SF $ 4.00 $ 55,248.00 $ 4.40 $ 60,772.80 $ 3.90 $ 53,866.80 55 Paving - Concrete Vehicular Section (9" PCC/12" AB) 1,280 SF $ 19.00 $ 24,320.00 $ 14.80 $ 18,944.00 $ 19.00 $ 24,320.00 56 Paving - Concrete Pedestrian (6" PCC/6" AB) 8,900 SF $ 10.75 $ 95,675.00 $ 10.40 $ 92,560.00 $ 12.00 $ 106,800.00 57 Paving - Pervious at Parking/Under trees) 4;750 SF $ 11.50 $ 54,625.00 $ 14.00 $ 66,500.00 $ 16.00 $ 76,000.00 58 Paving - Pervious 'at Soccer Field) 5,315 SF $ 14.60 $ 77,599.00 $ 13.90 $ 73,878.50 $ 21.00 $ 111,615.00 12/4/2014 1 of 6 ATTACHMENT D El Camino Park Restoration Project IFB No. 156916 Bid Summary CONTRACTOR Suarez & Munoz Robert A Beothman, Interstate Grading and 59 Paving -Decomposed Granite 5,634 SF $ 4.00 $ 22,536.00 $ 4.10 $ 23,099.40 $ 5.00 $ 28,170.00 60 Infield Resurface (scrape, import material, regrade) 12,500 SF $ 2.75 $ 34,375.00 $ 1.70 $ 21,250.00 $ 2.00 $ 25,000.00 61 ADA Ramp 5 EA $ 2,800.00 $ 14,000.00 $ 2,595.00 $ 12,975.00 $ 2,500.00 $ 12,500.00 62 Truncated Domes 395 SF $ 30.00 $ 11,850.00 $ 33.00 $ 13,035.00 $ 40.00 $ 15,800.00 63 Curb (at parking) 1,385 LF $ 40.00 $ 55,400.00 $ 38.10 $ 52,768.50 $ 46.00 $ 63,710.00 63A Paving -Mountable islands 3 EA $ 2,800.00 $ 8,400.00 $ 664.00 $ 1,992.00 $ 4,300.00 $ 12,900.00 64 12" Mowband 952 LF $ 19.00 $ 18,088.00 $ 19.00 $ 18,088.00 $ 30.00 $ 28,560.00 65 12" Containment Curb for Artificial Turf 542 LF $ 19.00 $ 10,298.00 $ 30.00 $ 16,260.00 $ 74.00 $ 40,108.00 65A Varying height retaining wall and mowband 395 LF $ 198.00 $ 78,210.00 $ 189.00 $ 74,655.00 $ 330.00 $ 130,350.00 66 Composite Header 1,856 LF $ 10.00 $ 18,560.00 $ 5.90 $ 10,950.40 $ 11.00 $ 20,416.00 67 Wheel Stops 22 EA $ 45.00 $ 990.00 $ 49.00 $ 1,078.00 $ 50.00 $ 1,100.00 68 Striping -4" Thermoplastic 2,400 LF $ 3.00 $ 7,200.00 $ 2.20 $ 5,280.00 $ 1.50 $ 3,600.00 69 Striping -12" Thermoplastic Crosswalk 155 LF $ 4.00 $ 620.00 $ 5.40 $ 837.00 $ 5.00 $ 775.00 70 Striping - Thermoplastic for Fire Access lane/Curb 1 LS $ 950.00 $ 950.00 $ 915.00 $ 915.00 $ 1,500.00 $ 1,500.00 71 Striping -Thermoplastic for Lettering & Direction (Loading, arrows, etc.) 1 LS $ 6,000.00 $ 6,000.00 $ 7,931.00 $ 7,931.00 $ 3,900.00 $ 3,900.00 SITE AMENITIES 72 Building - Restroom complete in place 1 LS $ 450,000.00 $ 450,000.00 $ 448,777.00 $ 448,777.00 $ 500,000.00 $ 500,000.00 73 Building - Storage and Scorekeeper's booth complete in place 1 LS $ 250,000.00 $ 250,000.00 $ 200,524.00 $ 200,524.00 $ 205,000.00 $ 205,000.00 74 Building -Trash Enclosure (including gates) 1 EA $ 80,000.00 $ 80,000.00 $ 97,173.00 $ 97,173.00 $ 120,000.00 $ 120,000.00 75 Furnishings - Picnic tables (with bench seating) 3 EA $ 2,800.00 $ 8,400.00 $ 2,938.00 $ 8,814.00 $ 3,200.00 $ 9,600.00 76 Furnishings - Bench w/back at Soccer Field 2 EA $ 1,200.00 $ 2,400.00 $ 606.00 $ 1,212.00 $ 1,300.00 $ 2,600.00 76A Furnishings - Dugout Bench 4 EA $ 620.00 $ 2,480.00 $ 816.00 $ 3,264.00 $ 900.00 $ 3,600.00 76B Furnishings - Foul Ball Poles 2 EA $ 2,600.00 $ 5,200.00 $ 4,099.00 $ 8,198.00 $ 4,100.00 $ 8,200.00 76C Furnishings -Soccer Goals 2 EA $ 4,200.00 $ 8,400.00 $ 3,769.00 $ 7,538.00 $ 4,500.00 $ 9,000.00 76D Furnishings -Soccer Goal Anchors 2 EA $ 3,000.00 $ 6,000.00 $ 2,664.00 $ 5,328.00 $ 3,600.00 $ 7,200.00 77 Furnishings -Bicycle Racks 12 EA $ 430.00 $ 5,160.00 $ 578.00 $ 6,936.00 $ 500.00 $ 6,000.00 78 Furnishings -Lacrosse Goals 2 EA $ 865.00 $ 1,730.00 $ 1,068.00 $ 2,136.00 $ 1,500.00 $ 3,000.00 79 Furnishings -Softball Field Bases 4 EA $ 550.00 $ 2,200.00 $ 214.00 $ 856.00 $ 600.00 $ 2,400.00 80 Signage- Accessible Parkin g 4 EA $ 250.00 $ 1,000.00 $ 309.00 $ 1,236.00 $ 250.00 $ 1,000.00 81 Fencing - "Smartstake" 4' Tall 460 LF $ 7.00 $ 3,220.00 $ 22.00 $ 10,120.00 $ 20.00 $ 9,200.00 82 Fencing - Chain link 8' Tall with netting to 26' 541 LF $ 320.00 $ 173,120.00 $ 266.00 $ 143,906.00 $ 245.00 $ 132,545.00 83 Fencing - Chain link 14' Tall with netting to 26 859 LF $ 225.00 $ 193,275.00 $ 244.00 $ 209,596.00 $ 225.00 $ 193,275.00 84 Fencing - Chain link 8' Tal (including gates) 424 LF $ 65.00 $ 27,560.00 $ 71.00 $ 30,104.00 $ 65.00 $ 27,560.00 85 Artificial Turf (Athletic areas, including infill and drain mat) 77,500 SF $ 9.00 $ 697,500.00 $ 7.00 $ 542,500.00 $ 9.00 $ 697,500.00 86 Artificial Turf Base Rock (Graduated, two layers) 77,500 SF $ 3.50 $ 271,250.00 $ 2.20 $ 170,500.00 $ 2.00 $ 155,000.00 86A Landscape boulders -All work to install boulders complete and in place 14 EA $ 480.00 $ 6,720.00 $ 585.00 $ 8,190.00 $ 600.00 $ 8,400.00 IRRIGATION 87 Irrigation Controller Assembly -48 Station 1 EA $ 7,000.00 $ 7,000.00 $ 3,027.00 $ 3,027.00 $ 8,200.00 $ 8,200.00 88 Irrigation Dual Flow Sensing Assembly (4") 1 EA $ 3,600.00 $ 3,600.00 $ 970.00 $ 970.00 $ 1,100.00 $ 1,100.00 89 Irrigation Master Valve (4") 1 EA $ 3,300.00 $ 3,300.00 $ 1,510.00 $ 1,510.00 $ 1,700.00 $ 1,700.00 90 Irrigation Existing Controller Connection for Medians and Street Frontage complete in place 1 EA $ 6,700.00 $ 6,700.00 $ 5,600.00 $ 5,600.00 $ 2,700.00 $ 2,700.00 91 Irrigation Mainline -4" CL 160 Bell & Gasket 3,273 LF $ 12.00 $ 39,276.00 $ 5.00 $ 16,365.00 $ 9.00 $ 29,457.00 92 Irrigation Quick Coupler and Box 25 EA $ 330.00 $ 8,250.00 $ 151.00 $ 3,775.00 $ 310.00 $ 7,750.00 93 Mainline Fittings and Restraints 80 EA $ 100.00 $ 8,000.00 $ 525.00 $ 42,000.00 $ 380.00 $ 30,400.00 94 Sleeves Schedule 40 1,114 EA $ 1.50 $ 1,671.00 $ 18.00 $ 20,052.00 $ 19.00 $ 21,166.00 95 PVC Lateral Lines 14,086 LF $ 8.00 $ 112,688.00 $ 4.00 $ 56,344.00 $ 4.00 $ 56,344.00 96 Remote Control Valve - 2" 12 EA $ 450.00 $ 5,400.00 $ 264.00 $ 3,168.00 $ 620.00 $ 7,440.00 97 Remote Control Valve -1.5" 22 EA $ 400.00 $ 8,800.00 $ 233.00 $ 5,126.00 $ 600.00 $ 13,200.00 98 Remote Control Valve -1" 8 EA $ 375.00 $ 3,000.00 $ 210.00 $ 1,680.00 $ 500.00 $ 4,000.00 99 Rotor Assembly 135 EA $ 65.00 $ 8,775.00 $ 105.00 $ 14,175.00 $ 45.00 $ 6,075.00 100 Tree Bubbler 160 EA $ 69.00 $ 11,040.00 $ 38.00 $ 6,080.00 $ 47.00 $ 7,520.00 101 Install Irrigation System - Regular Density Drip Areas 6,468 SF $ 0.50 $ 3,234.00 $ 3.00 $ 19,404.00 $ 2.00 $ 12,936.00 102 Drip and Overhead Irrigation system complete in place, Flush System and Test and Prepare As-builts 1 LS $ 1,300.00 $ 1,300.00 $ 1,931.00 $ 1,931.00 $ 7,800.00 $ 7,800.00 103 Shrub Irrigation Heads 308 EA $ 36.00 $ 11,088.00 $ 32.00 $ 9,856.00 $ 25.00 $ 7,700.00 PLANTING 104 Soil Amendments 145,000 SF $ 0.56 $ 81,200.00 $ 0.37 $ 53,650.00 $ 0.30 $ 43,500.00 105 Finish Grading and Installation of top soil 145,000 SF $ 0.13 $ 18,850.00 $ 0.08 $ 11,600.00 $ 0.06 $ 8,700.00 106 Sodded Turf 99,749 SF $ 0.70 $ 69,824.30 $ 1.00 $ 99,749.00 $ 0.80 $ 79,799.20 107 Install Groundcover 1,010 EA $ 13.00 $ 13,130.00 $ 10.00 $ 10,100.00 $ 11.00 $ 11,110.00 108 Install Shrubs -1 GAL 463 EA $ 13.00 $ 6,019.00 $ 11.00 $ 5,093.00 $ 13.00 $ 6,019.00 109 Install Shrubs -5 GAL 530 EA $ 30.00 $ 15,900.00 $ 31.00 $ 16,430.00 $ 28.00 $ 14,840.00 110 Install Trees (15 GAL) 38 EA $ 430.00 $ 16,340.00 $ 135.00 $ 5,130.00 $ 260.00 $ 9,880.00 111 Install Trees (24" BOX) 38 EA $ 600.00 $ 22,800.00 $ 409.00 $ 15,542.00 $ 420.00 $ 15,960.00 112 Mulch, Natural City Provided (3"): 367 CY $ 24.00 $ 8,808.00 $ 62.00 $ 22,754.00 $ 20.00 $ 7,340.00 12/4/2014 2 of 6 ATTACHMENT D El Camino Park Restoration Project IFB No. 156916 Bid Summary CONTRACTOR Suarez & Munoz Robert A Beothman, Interstate Grading and 113 Landscape Maintenance (90 Days): 1 LS $ 10,000.00 $ 10,000.00 $ 15,221.00 $ 15,221.00 $ 7,800.00 $ 7,800.00 114 Contract Close-out 1 LS $ 2,000.00 $ 2,000.00 $ 5,627.00 $ 5,627.00 $ 4,000.00 $ 4,000.00 TOTAL $ 5,284,690.30 $ 4,932,090.20 $ 5,349,110.00 DEDUCT ALTERNATIVE BID 1 Deduct - North soccer field light poles, heads, wiring, and connection to the base bid lighting control system and power 1 LS 80000 $ 80,000.00 $ 80,576.00 $ 80,576.00 $ 107,846.47 $ 107,846.47 2 Use Future Double Spine (DS) turf in lieu of Future ES turf 1 LS 24000 $ 24,000.00 $ - $ - $ 24,000.00 $ 24,000.00 3 Use Next Gen No-Infilll Turf In lieu of the Future ES or Future DS 1 LS 62000 $ 62,000.00 $ - $ 64,000.00 $ 64,000.00 4 Deduct — Reduce Class 1 pathway width from 10' wide to 8' wide 755 SF 4 $ 3,020.00 $ 10.00 $ 7,550.00 $ 3.60 $ 2,718.00 12/4/2014 3 of ATTACHMENT D El Camino Park Restoration Project IFB No. 156916 Bid Summary CONTRACTOR O.C. Jones & Sons, Inc. Goodland Landscape BASE BID Construction, Inc. BID ITEM SITE PREPARATION AND GRADING APPROX. QTY UNIT PRICE TOTAL PRICE TOTAL 1 Mobilization and Temporary Facilities 1 LS $ 432,000.00 $ 432,000.00 $ 99,262.00 $ 99,262.00 2 Temporary Fence (Type CL -6) 3,100 LF $ 6.00 $ 18,600.00 $ 3.25 $ 10,075.00 3 Field Engineering 1 LS $ 20,000.00 $ 20,000.00 $ 19,000.00 $ 19,000.00 4 Traffic Control include construction signs 1 LS $ 12,000.00 $ 12;000.00 $ 2,600.00 $ 2,600.00 5 Tree Removal (DBH 16" or greater) 3 EA $ 1,500.00 $ 4,500.00 $ 1,500.00 $ 4,500.00 6 Tree Protection Fencing 1,400 LF $ 12.00 $ 16,800.00 $ 4.00 $ 5,600.00 7 Site Preparation 1 LS $ 120,000.00 $ 120,000.00 $ 16,000.00 $ 16,000.00 8 Demolition - Remove Asphalt & Concrete 36,152 SF $ 1.00 $ 36,152.00 $ 1.00 $ 36,152.00 9 Demolition - Concrete Curbing 950 LF $ 5.00 $ 4,750.00 $ 3.00 $ 2,850.00 10 Demolition - Bathroom & Scorekeeper Booth including lead abatement 1 LS $ 15,000.00 $ 15,000.00 $ 9,000.00 $ 9,000.00 11 Miscellaneous Site Demolition (signs, fencing, netting, wood poles, etc.) 1 LS $ 50,000.00 $ 50,000.00 $ 34,000.00 $ 34,000.00 12 Temporary Erosion Control complete in place 1 LS $ 50,000.00 $ 50,000.00 $ 5,800.00 $ 5,800.00 13 Fiber Rolls 2,800 LF $ 4.00 $ 11,200.00 $ 2.25 $ 6,300.00 14 DI Protection 18 EA $ 220.00 $ 3,960.00 $ 130.00 $ 2,340.00 15 Earthwork (Rough Grading) 3,500 CY $ 20.00 $ 70,000.00 $ 27.00 $ 94,500.00 16 Finished Grading (Excluding Planters) 155,000 SF $ 0.70 $ 108,500.00 $ 0.20 $ 31,000.00 SITE UTILITIES 17 Site Drainage - 6" Soccer Filed Drain Including Gravel & Fabric 1,900 LF $ 27.00 $ 51,300.00 $ 21.00 $ 39,900.00 18 Site Drainage - 12" HDPE 550 LF $ 65.00 $ 35,750.00 $ 39.00 $ 21,450.00 19 Site Drainage - 18" HDPE 106 LF $ 80.00 $ 8,480.00 $ 64.00 $ 6,784.00 20 Site Drainage - 36" HDPE Perforated 337 LF $ 105.00 $ 35,385.00 $ 120.00 $ 40,440.00 21 Site Drainage - 18" HDPE Perforated 90 LF $ 78.00 $ 7,020.00 $ 65.00 $ 5,850.00 22 Site Drainage - 8" HDPE Perforated 728 LF $ 36.00 $ 26,208.00 $ 31.00 $ 22,568.00 23 Site Drainage -4" HDPE Perforated 282 LF $ 42.00 $ 11,844.00 $ 24.00 $ 6,768.00 24 Site Drainage-8"HDPE 65 LF $ 65.00 $ 4,225.00 $ 28.00 $ 1,820.00 25 Site Drainage - 12" HDPE perforated 361 LF $ 54.00 $ 19,494.00 $ 39.00 $ 14,079.00 26 Site Drainage -11 x 18 Arch Pipe 18 LF $ 200.00 $ 3,600.00 $ 275.00 $ 4,950.00 27 Site Drainage - Storm Cleanouts 2 EA $ 500.00 $ 1,000.00 $ 1,000.00 $ 2,000.00 28 Site Drainage -24" Standard Inlet 12 EA $ 2,700.00 $ 32,400.00 $ 1,600.00 $ 19,200.00 29 Site Drainage -8" Area Drain 2 EA $ 1,100.00 $ 2,200.00 $ 750.00 $ 1,500.00 30 Site Drainage -4" Trench Drain 20 LF $ 65.00 $ 1,300.00 $ 100.00 $ 2,000.00 31 Site Drainage - four 48" Manholes and drainage system complete in place 1 LS $ 24,000.00 $ 24,000.00 $ 21,000.00 $ 21,000.00 32 Sanitary Sewerage - One sewer manhole and system complete in place 1 LS $ 5,000.00 $ 5,000.00 $ 4,000.00 $ 4,000.00 33 Sanitary Sewerage 6" PVC line and system complete in place 40 LF $ 55.00 $ 2,200.00 $ 45.00 $ 1,800.00 34 Sanitary Sewerage 4" PVC line and system complete in place 150 LF $ 30.00 $ 4,500.00 $ 23.00 $ 3,450.00 35 Sanitary Sewerage Cleanout 3 EA $ 450.00 $ 1,350.00 $ 900.00 $ 2,700.00 36 Drinking Fountain (Including Sewer pump) 1 EA $ 7,000.00 $ 7,000.00 $ 6,500.00 $ 6,500.00 37 Potable Water Connection and system complete in place 1 LS $ 7,000.00 $ 7,000.00 $ 2,500.00 $ 2,500.00 38 Potable Water 2" Line 383 LF $ 150.00 $ 57,450.00 $ 11.00 $ 4,213.00 39 Irrigation Connection and system complete in place 1 LS $ 7,000.00 $ 7,000.00 $ 1,400.00 $ 1,400.00 ELECTRICAL 40 Furnish and Install New Switch Gear 1 EA $ 20,000.00 $ 20,000.00 $ 30,000.00 $ 30,000.00 41 Electrical system and one Transformer (NEMA 3R Transformer- "T1") complete in place 1 LS $ 35,000.00 $ 35,000.00 $ 15,000.00 $ 15,000.00 42 Point of Connection to two Irrigation Controllers complete in place 1 LS $ 1,000.00 $ 1,000.00 $ 2,700.00 $ 2,700.00 43 Point of Connection to Restroom complete in place 1 LS $ 5,000.00 $ 5,000.00 $ 22,000.00 $ 22,000.00 44 Point of Connection to Scorekeeper/Storage complete in place 1 LS $ 3,000.00 $ 3,000.00 $ 13,000.00 $ 13,000.00 45 Pathways/Security LED Lighting system complete in place 33 EA $ 5,100.00 $ 168,300.00 $ 5,379.00 $ 177,507.00 46 Six Parking Lot LED Lights and lighting system complete in place 1 LS $ 50,000.00 $ 50,000.00 $ 48,000.00 $ 48,000.00 47 No. 3 Pull Box Concrete 49 EA $ 225.00 $ 11,025.00 $ 465.00 $ 22,785.00 48 Wires, Conductor, Conduit 4,100 LF $ 30.00 $ 123,000.00 $ 26.00 $ 106,600.00 49 Sports Lighting Controls and system complete in place 1 LS $ 20,000.00 $ 20,000.00 $15,000 $ 15,000.00 50 Sports Lighting 70' Pole and Fixture 12 EAA $ 19,000.00 $ 228,000.00 $ 25,600.00 $ 307,200.00 51 Sports Lighting Foundations 12 EA $ 6,000.00 $ 72,000.00 $ 5,000.00 $ 60,000.00 52 Underground Existing Data from Pole at pump Station 350 LF $ 18.00 $ 6,300.00 $ 27.00 $ 9,450.00 53 Relocate and reconnect blue Light Phone 1 EA $ 3,000.00 $ 3,000.00 $ 4,000.00 $ 4,000.00 SITE PAVING 54 Paving - Asphalt Vehicular Section (3" AC/12" AB) 25,264 SF $ 4.25 $ 107,372.00 $ 4.25 $ 107,372.00 54A Paving - Bike Path Asphalt Paving (2" AC/6" AB) 13,812 SF $ 4.25 $ 58,701.00 $ 4.00 $ 55,248.00 55 Paving - Concrete Vehicular Section (9" PCC/12" AB) 1,280 SF $ 13.00 $ 16,640.00 $ 14.00 $ 17,920.00 56 Paving - Concrete Pedestrian (6" PCC/6" AB) 8,900 SF $ 10.00 $ 89,000.00 $ 8.00 $ 71,200.00 57 Paving - Pervious at Parkin /Under trees) 4,750 SF $ 13.00 $ 61,750.00 $ 15.00 $ 71,250.00 58 Paving - Pervious 'at Soccer Field) 5,315 SF $ 15.00 $ 79,725.00 $ 14.00 $ 74,410.00 12/4/2014 4 of ATTACHMENT D El Camino Park Restoration Project IFB No. 156916 Bid Summary CONTRACTOR O.C. Jones & Sons, Inc. Goodland Landscape 59 Paving - Decomposed Granite 5,634 SF $ 10.00 $ 56,340.00 $ 4.00 $ 22,536.00 60 Infield Resurface (scrape, import material, regrade) 12,500 SF $ 3.00 $ 37,500.00 $ 1.75 $ 21,875.00 61 ADA Ramp 5 EA $ 1,700.00 $ 8,500.00 $ 3,000.00 $ 15,000.00 62 Truncated Domes 395 SF $ 32.00 $ 12,640.00 $ 18.00 $ 7,110.00 63 Curb (at parking) 1,385 LF $ 26.00 $ 36,010.00 $ 26.00 $ 36,010.00 63A Paving - Mountable islands 3 EA $ 2,000.00 $ 6,000.00 $ 4,500.00 $ 13,500.00 64 12" Mowband 952 LF $ 20.00 $ 19,040.00 $ 17.00 $ 16,184.00 65 12" Containment Curb for Artificial Turf 542 LF $ 22.00 $ 11,924.00 $ 32.00 $ 17,344.00 65A Varying height retaining wall and mowband 395 LF $ 250.00 $ 98,750.00 $ 135.00 $ 53,325.00 66 Composite Header 1,856 LF $ 9.00 $ 16,704.00 $ 6.00 $ 11,136.00 67 Wheel Stops 22 EA $ 60.00 $ 1,320.00 $ 100.00 $ 2,200.00 68 Striping -4" Thermoplastic 2,400 LF $ 2.00 $ 4,800.00 $ 1.50 $ 3,600.00 69 Striping -12" Thermoplastic Crosswalk 155 LF $ 5.00 $ 775.00 $ 6.00 $ 930.00 70 Striping - Thermoplastic for Fire Access lane/Curb 1 LS $ 750.00 $ 750.00 $ 2,500.00 $ 2,500.00 71 Striping -Thermoplastic for Lettering & Direction (Loading, arrows, etc.) 1 LS $ 2,500.00 $ 2,500.00 $ 6,000.00 $ 6,000.00 SITE AMENITIES 72 Building - Restroom complete in place 1 LS $ 450,000.00 $ 450,000.00 $ 420,000.00 $ 420,000.00 73 Building - Storage and Scorekeepers booth complete in place 1 LS $ 190,000.00 $ 190,000.00 $ 140,000.00 $ 140,000.00 74 Building - Trash Enclosure (including gates) 1 EA $ 75,000.00 $ 75,000.00 $ 86,000.00 $ 86,000.00 75 Furnishings - Picnic tables (with bench seating) 3 EA $ 3,000.00 $ 9,000.00 $ 3,200.00 $ 9,600.00 76 Furnishings - Bench w/back at Soccer Field 2 EA $ 2,000.00 $ 4,000.00 $ 3,200.00 $ 6,400.00 76A Furnishings -Dugout Bench 4 EA $ 1,000.00 $ 4,000.00 $ 750.00 $ 3,000.00 76B Furnishings - Foul Ball Poles 2 EA $ 3,700.00 $ 7,400.00 $ 2,700.00 $ 5,400.00 76C Furnishings -Soccer Goals 2 EA $ 5,000.00 $ 10,000.00 $ 3,500.00 $ 7,000.00 76D Furnishings -Soccer Goal Anchors 2 EA $ 3,500.00 $ 7,000.00 $ 1,500.00 $ 3,000.00 77 Furnishings -Bicycle Racks 12 EA $ 1,100.00 $ 13,200.00 $ 380.00 $ 4,560.00 78 Furnishings -Lacrosse Goals 2 EA $ 1,300.00 $ 2,600.00 $ 1,640.00 $ 3,280.00 79 Furnishings -Softball Field Bases 4 EA $ 700.00 $ 2,800.00 $ 650.00 $ 2,600.00 80 Signage- Accessible Parkin g 4 EA $ 200.00 $ 800.00 $ 625.00 $ 2,500.00 81 Fencing - "Smartstake" 4' Tall 460 LF $ 20.00 $ 9,200.00 $ 25.00 $ 11,500.00 82 Fencing - Chain link 8' Tall with netting to 26' 541 LF $ 246.00 $ 133,086.00 $ 343.00 $ 185,563.00 83 Fencing - Chain link 14' Tall with netting to 26 859 LF $ 226.00 $ 194,134.00 $ 247.00 $ 212,173.00 84 Fencing - Chain link 8' Tal (including gates) 424 LF $ 65.00 $ 27,560.00 $ 55.00 $ 23,320.00 85 Artificial Turf (Athletic areas, including infill and drain mat) 77,500 SF $ 8.80 $ 682,000.00 $ 8.85 $ 685,875.00 86 Artificial Turf Base Rock (Graduated, two layers) 77,500 SF $ 2.30 $ 178,250.00 $ 2.35 $ 182,125.00 86A Landscape boulders - All work to install boulders complete and in place 14 EA $ 500.00 $ 7,000.00 $ 290.00 $ 4,060.00 IRRIGATION 87 Irrigation Controller Assembly -48 Station 1 EA $ 9,000.00 $ 9,000.00 $ 7,500.00 $ 7,500.00 88 Irrigation Dual Flow Sensing Assembly (4") 1 EA $ 4,000.00 $ 4,000.00 $ 1,600.00 $ 1,600.00 89 Irrigation Master Valve (4") 1 EA $ 4,000.00 $ 4,000.00 $ 2,000.00 $ 2,000.00 90 Irrigation Existing Controller Connection for Medians and Street Frontage complete in place 1 EA $ 5,000.00 $ 5,000.00 $ 5,100.00 $ 5,100.00 91 Irrigation Mainline -4" CL 160 Bell & Gasket 3,273 LF $ 14.00 $ 45,822.00 $ 9.00 $ 29,457.00 92 irrigation Quick Coupler and Box 25 EA $ 400.00 $ 10,000.00 $ 360.00 $ 9,000.00 93 Mainline Fittings and Restraints 80 EA $ 100.00 $ 8,000.00 $ 200.00 $ 16,000.00 94 Sleeves Schedule 40 1,114 EA $ 25.00 $ 27,850.00 $ 18.00 $ 20,052.00 95 PVC Lateral Lines 14,086 LF $ 3.00 $ 42,258.00 $ 3.50 $ 49,301.00 96 Remote Control Valve -2" 12 EA $ 700.00 $ 8,400.00 $ 580.00 $ 6,960.00 97 Remote Control Valve -1.5" 22 EA $ 650.00 $ 14,300.00 $ 575.00 $ 12,650.00 98 Remote Control Valve - 1" 8 EA $ 600.00 $ 4,800.00 $ 630.00 $ 5,040.00 99 Rotor Assembly 135 EA $ 50.00 $ 6,750.00 $ 51.00 $ 6,885.00 100 Tree Bubbler 160 EA $ 45.00 $ 7,200.00 $ 54.00 $ 8,640.00 101 Install Irrigation System - Regular Density Drip Areas 6,468 SF $ 1.00 $ 6,468.00 $ 2.50 $ 16,170.00 102 Drip and Overhead Irrigation system complete in place, Flush System and Test and Prepare As-builts 1 LS $ 6,000.00 $ 6,000.00 $ 3,500.00 $ 3,500.00 103 Shrub Irrigation Heads 308 EA $ 25.00 $ 7,700.00 $ 33.00 $ 10,164.00 PLANTING 104 Soil Amendments 145,000 SF $ 0.40 $ 58,000.00 $ 0.25 $ 36,250.00 105 Finish Grading and Installation of top soil 145,000 SF $ 0.20 $ 29,000.00 $ 0.10 $ 14,500.00 106 Sodded Turf 99,749 SF $ 0.50 $ 49,874.50 $ 0.39 $ 38,902.11 107 Install Groundcover 1,010 EA $ 10.00 $ 10,100.00 $ 7.00 $ 7,070.00 108 Install Shrubs -1 GAL 463 EA $ 10.00 $ 4,630.00 $ 13.00 $ 6,019.00 109 Install Shrubs - 5 GAL 530 EA $ 18.00 $ 9,540.00 $ 25.00 $ 13,250.00 110 Install Trees (15 GAL) 38 EA $ 100.00 $ 3,800.00 $ 300.00 $ 11,400.00 111 Install Trees (24" BOX) 38 EA $ 250.00 $ 9,500.00 $ 330.00 $ 12,540.00 112 Mulch, Natural City Provided (3"): 367 CY $ 15.00 $ 5,505.00 $ 13.00 $ 4,771.00 12/4/2014 5 of 6 ATTACHMENT D El Camino Park Restoration Project IFB No. 156916 Bid Summary CONTRACTOR O.C. Jones & Sons, Inc. Goodland Landscape 113 Landscape Maintenance (90 Days): 1 LS $ 8,000.00 $ 8,000.00 $ 8,900.00 $ 8,900.00 114 Contract Close-out 1 LS $ 15,000.00 $ 15,000.00 $ 4,200.00 $ 4,200.00 TOTAL $ 5,229,061.50 $ 4,441,520.11 DEDUCT ALTERNATIVE BID 1 Deduct - North soccer field light poles, heads, wiring, and connection to the base bid lighting control system and power 1 LS $ 75,000.00 $ 75,000.00 $ 75,000.00 $ 75,000.00 2 Use Future Double Spine (DS) turf in lieu of Future ES turf 1 LS $ 20,000.00 $ 20,000.00 $ 23,000.00 $ 23,000.00 3 Use Next Gen No-Infilll Turf In lieu of the Future ES or Future DS 1 LS $ 55,000.00 $ 55,000.00 $ 62,000.00 $ 62,000.00 4 Deduct — Reduce Class 1 pathway width from 10' wide to 8' wide 755 SF $ 5,000.00 $ 3,775,000.00 $ 4.00 $ 3,020.00 12/4/2014 6 of 6 CITY OF PALO ALTO City of Palo Alto (ID # 4882) City Council Staff Report Report Type: Consent Calendar Meeting Date: 12/15/2014 Summary Title: Easements for San Francisquito Creek Joint Powers Authority Initial Flood Protection Project Title: Grant of Easements to Santa Clara Valley Water District, Pacific Gas and Electric Company, City of East Palo Alto and East Palo Alto Sanitary District for the San Francisquito Creek Joint Powers Authority's (JPA) Initial Flood Protection Project (Highway 101 to San Francisco Bay) From: City Manager Lead Department: Administrative Services RECOMMENDATION Staff recommends that Council: 1. Authorize the City Manager or designee to approve and execute the attached City of Palo Alto grant of easement to Pacific Gas and Electric Company (PG&E) and to accept the attached quitclaim deed from PG&E to the City of Palo Alto for abandonment of an existing easement; and 2. Authorize the City Manager or designee to approve and execute additional City of Palo Alto Grants of Easements to Santa Clara Valley Water District (SCVWD), PG&E, City of East Palo Alto, and East Palo Alto Sanitary District (EPASD) to be granted in the future and accept additional quitclaim deeds from PG&E, as needed, for the implementation of the San Francisquito Creek Joint Powers Authority's (JPA) Initial Flood Protection Project (Highway 101 to San Francisco Bay). EXECUTIVE SUMMARY The San Francisquito Creek (see attachment A) Flood Reduction, Ecosystem Restoration, and Recreation Project — Highway 101 to San Francisco Bay (the "Project"), which affects City — owned parcels APN 008-06-001 (portion) and APN 008-01-032 (portion), is a joint endeavor of the JPA and its member agencies to realign San Francisquito Creek (Creek) in order to provide flood protection between Highway 101 and San Francisco Bay. The Project includes creek widening, construction of new levees and floodwalls, wetlands restoration, and improvements to the Baylands trail network. In order to support the construction of the Project, several existing utility facilities, including PG&E gas and electric lines and an EPASD sanitary sewer pipeline, will need to be relocated, requiring new utility City of Palo Alto Page 1 easements to be granted across City -owned land. In addition, the modifications to the Creek width will require the SCVWD and the City of East Palo Alto (the agencies that will assume maintenance responsibility for the Creek improvements) to acquire new flood control easements across City -owned land. In order to provide rights for future land use, access, maintenance and utilization of the land area, the City of Palo Alto will need to grant various real estate access rights in the form of right of entry, permanent easements, and temporary construction easements to the SCVWD, PG&E, the City of East Palo Alto and the EPASD. BACKGROUND In April 1999, the cities of Palo Alto, Menlo Park, and East Palo Alto, the Santa Clara Valley Water District and the San Mateo County Flood Control District formed the San Francisquito Creek JPA in order to cooperatively pursue a flood damage reduction and ecosystem restoration project for San Francisquito Creek. For the past three years, the JPA has been pursuing the implementation of a locally -funded Initial Flood Protection Project that would provide 100 -year flood protection for properties downstream of Highway 101. In 2009, the JPA contracted with HDR Engineering, Inc. to design and prepare construction documents for the Project and with ICF International, Inc. to prepare an Environmental Impact Report to identify and analyze potential project impacts and to describe appropriate mitigation measures to address those impacts. The design consultant has completed 95% construction documents for the Project, and the JPA Board certified the Final Environmental Impact Report for the Project on October 25, 2012. The Project will accommodate a 100 -year flow in conjunction with a 100 -year tide, with additional design considerations to meet FEMA freeboard requirements consistent with the National Research Center's highest estimate of potential Sea Level Rise over the next 50 years. This Project is the first in the Bay Area to take such a progressive approach towards planning a flood protection and ecosystem restoration project that considers the best available scientific evidence of potential environmental and climatic change that could be experienced during the design life of the project. The Project's goals are to improve flood protection, habitat, and recreational opportunities within the project reach, with the following specific objectives: • Protect properties and infrastructure between Highway 101 and the San Francisco Bay from 100 -year San Francisquito Creek riverine flood flows in conjunction with a 100 -year tide and projected 50 -year Sea Level Rise; • Accommodate future flood protection measures upstream of the Project that may be constructed; • Enhance habitat along the project reach, particularly habitat for threatened and endangered species; • Enhance recreational uses; and • Minimize operational and maintenance requirements. City of Palo Alto Page 2 The primary Project elements proposed to improve management of flood flows along San Francisquito Creek from Highway 101 to San Francisco Bay include: • Reconfiguring levees; • Creating a marsh plain terrace to convey high flows; • Installing floodwalls; • Widening of the Creek channel; and • Constructing access roads for maintenance purposes. DISCUSSION In order to enable the relocation of utility facilities associated with the Project and to convey temporary and permanent access rights to the agencies with maintenance responsibility for the Project, real estate access and easement rights will need to be granted by the City of Palo Alto to various public agencies and PG&E. At the present time, the JPA is waiting to obtain the necessary permits from the San Francisco Bay Regional Water Quality Control Board (Water Board) and other state and federal resource agencies to begin the Project. Once all of the permits have been acquired, the Project will start. By authorizing the City Manager to approve the easements needed to accommodate the Project, the necessary real estate documents can be approved quickly after they have been reviewed and approved by Public Works, the Real Estate Division of ASD, and the City Attorney's Office. Over the past two years, City staff have been meeting and working with the staff of the agencies seeking new or revised easements to develop and review the plats, legal descriptions, and real estate rights that will be included in the easements to be granted to facilitate the Project. The City will be granting the following agencies easement rights in conjunction with the Project: Santa Clara Valley Water District: The SCVWD will be administering the construction of the Project on behalf of the JPA. The SCVWD will also assume permanent maintenance responsibility for the Creek improvements on the south side of the channel (the portion within the City of Palo Alto corporate limits). Therefore, the SCVWD will require both temporary construction easements and permanent flood control easements from the City. The purpose of a permanent non—exclusive easement and a temporary construction easement is to facilitate the water management and/or storm water drainage system installation to prevent future flooding and to support the construction of the Project. The new permanent easement will be used to construct a new earthen levee, which will be set back from the existing levee in order to increase channel conveyance. That new setback levee will extend from the vicinity of Geng Road to just beyond the Friendship Bridge. The existing ramp at Geng Road will be reconstructed to provide access to the new levee for maintenance vehicles and bicyclists and pedestrians utilizing the Bay Trail segment along the levee. Upstream of Geng Road, a sheetpile floodwall will be constructed with a widened channel, extending to the US Postal Service property. The City bike/pedestrian trail on top of the existing levee will be restored atop the new levee. The temporary construction City of Palo Alto Page 3 easement will be used to allow access by equipment and material during construction of the Project. PG&E PG&E will be relocating two electric transmission lines and one gas transmission line to accommodate the creek widening included in the Project. PG&E will quitclaim current easements for its existing gas and electric facilities to the City. The City will grant three new permanent easements to PG&E for the relocated gas and electric facilities. The City will issue the following new easements to PG&E: 1) 60kV Transmission Wood Pole Line: A new easement will cover electric transmission lines along the wood pole line, which have already been relocated by PG&E. (see attachment B) 2) 230kV Steel Tower Line: Two new easements will be granted for relocated overhead electric facilities. These facilities needed to be relocated and raised because one of the steel towers will be within the widened creek channel. Because of this change, the original easement's area of use will need to be widened. 3) Gas Transmission Line 101: This easement will address an underground gas transmission line that will be relocated to facilitate the creek widening. PG&E has established a conceptual alignment for the relocated gas line. It will be relocated to the east side (within the Golf Course) of the new easterly levee. The City will be granting easement rights of ingress and egress to construct, reconstruct, replace, remove, maintain and use for the transmission of electric (or gas) energy, and for communication purposes. The existing easements to be quitclaimed by PG&E are: The easement (see attachment C) granted by City of Palo Alto to PG&E on April 20, 1966, for the gas line which would be relocated into the new easement area at a later date. City of East Palo Alto The City of East Palo Alto will assume permanent maintenance responsibility for the Creek improvements on the north side of the channel (the portion within the City of East Palo Alto corporate limits). The County of San Mateo holds existing permanent easements along San Francisquito Creek between O'Connor Street and Daphne Way that will be relied upon to construct the Project. The County of San Mateo will transfer their existing easement rights to the City of East Palo Alto. However, the planned construction activities of the Project may extend beyond the existing easements on City -owned lands. If it is determined that additional land rights will be needed for construction, the City of East Palo Alto would seek from the City City of Palo Alto Page 4 of Palo Alto new temporary construction easements in the subject area. The easements would be required for construction activities related to building the new levee on the East Palo Alto side of the Creek, and for the traversal of equipment and materials from a staging area near O'Connor Street to the rest of the Project site. The easement would be in place for a two-year period, the beginning of which shall be determined during the drafting of the easement agreement. East Palo Alto Sanitary District The EPASD will be relocating its sanitary sewer trunk pipeline to accommodate the creek widening included in the Project. A 20 -foot wide sanitary sewer easement is needed for the legal installation of the relocated sewer pipeline and manholes, and their ongoing inspection and maintenance. The sewer infrastructure is routinely inspected and maintained to ensure proper operation. The easement provides the EPASD the legal right to access and perform maintenance as needed. RESOURCE IMPACT As a policy, public agencies waive easement preparation fees when they are working together with other government agencies on publically-sponsored project. The City's easement fee of $1,363 set forth in the Municipal Fee Schedule has been waived for SCVWD, East Palo Alto, and EPASD. City also waived the easement fee for PG&E since they will be undertaking work that has been requested by the JPA to support the San Francisquito Creek Flood Reduction Project. POLICY IMPLICATIONS Granting the easement rights to PG&E and other public agencies to support the San Francisquito Creek flood prevention project is consistent with policies and programs in the Comprehensive Plan, promoting public safety and infrastructure investments to develop a safer regional area and to work in cooperation with neighborhood cities to solve regional issues that impact many residents and communities. ENVIRONMENTAL REVIEW An Environmental Impact Report for the Project, including the related utility relocations, has been adopted by the JPA. Attachments: • Attachment A: Map of the San Francisquito Creek (DOCX) • Attachment B: Easement Deed (PDF) • Attachment C: Easement Quitclaim Deed (PDF) City of Palo Alto Page 5 ATTACHMENT A Legend Access Road Project Reach Creek Floodwali Levee Levee Degrade Staging Area Marshplain Fr,,ndship Pt PA l 0 International School of fill! Peninsula San Francisco 1 Page ATTACHMENT B RECORDING REQUESTED BY AND RETURN TO: PACIFIC GAS AND ELECTRIC COMPANY 245 Market Street, N10A, Room 1015 P.O. Box 770000 San Francisco, California 94177 Location: City/Uninc Recording Fee 5 Document Transfer Tax $ [ ] This is a conveyance where the consideration and Value is less than $100.00 (R&T 11911). [ ] Computed on Full Value of Property Conveyed, or [ ] Computed on Full Value Less Liens & Encumbrances Remaining at Time of Sale Signature of declarant or agent determinin tax LI) 2305-02-0469 (SPACE ABOVE FOR RECORDER'S USE ONLY) EASEMENT DEED 2013443 (22-13-044) 10 13 2 San Francisquito Creek Relocate Existing Facilities Cooley Landing -Palo Alto 115 kv CITY OF PALO ALTO, a California chartered municipal corporation, hereinafter called Grantor, in consideration of value paid by PACIFIC GAS AND ELECTRIC COMPANY, a California corporation, hereinafter called Grantee, the receipt whereof is hereby acknowledged, hereby grants to Grantee the right to erect, construct, reconstruct, replace, remove, maintain and use a line of poles with such wires and cables as Grantee shall from time to time suspend therefrom for the transmission of electric energy, and for communication purposes, and all necessary and proper crossarms, guys, anchors and other appliances and fixtures for use in connection with said poles, wires and cables, together with a right of way, on, along and in all of the hereinafter described easement area which is situate partially within the City of Palo Alto, County of Santa Clara, and partially within the City of East Palo Alto, County of San Mateo, State of California, described as follows: (Santa Clara County APN 008-06-001) (San Mateo County APN 063-580-100) The strip of land described and designated 1 in EXHIBIT "A" and shown on Grantee's Drawing Number L-9465, both of which are attached hereto and made a part hereof. Grantor also grants to Grantee the right to install, replace, maintain and use an anchor with appurtenant guy wires within the easement areas described and designated 2, 3 and 4 in said EXHIBIT "A" and shown on said Drawing Number L-9465. Page 1of7 ATTACHMENT B Grantor further grants to Grantee the right of ingress to and egress from said easement areas over and across the lands of Grantor adjacent to said easement areas by means of roads and lanes thereon, if such there be, otherwise by such route or routes as Grantor shall designate after consultation with Grantee, provided, that such right of ingress and egress shall not extend to any portion of said adjacent lands which is isolated from said easement areas by any public road or highway, now crossing or hereafter crossing such adjacent lands. Grantor shall have the right to use said easement areas for all purposes not inconsistent with Grantee's full enjoyment of the rights hereby granted, provided that Grantor shall not erect or construct any building or other structure, or drill or operate any well, within said easement areas. Grantor shall retain the right to plant trees and shrubs on or adjacent to said easement areas providing that no resulting branches, limbs or foliage shall be allowed to encroach within 15 feet of said wires. Grantee shall request Grantor in writing to remove any branches, limbs or foliage which in its determination encroaches within 15 feet of said wires. Grantee shall have the further right to install, maintain and use gates in all fences which now cross or shall hereafter cross said easement areas. Grantee shall also have the right to mark the location of said easement areas by suitable markers set in the ground or on said poles, but said markers when set in the ground shall be placed in fences or other locations which will not interfere with any reasonable use Grantor shall make of said easement areas. Upon non-use of the aforesaid easements for the purposes specified on, along and in the said above described easement areas for a period of two (2) consecutive years, all right, title and interest of Grantee in the said easements on, along and in the easement areas not so used shall revert to Grantor, its successors and assigns. In the event of abandonment of said line of poles, or any portion thereof, and non-use for a continuous period of two years shall be conclusive evidence of the abandonment thereof, Grantee will on demand execute, acknowledge and deliver unto Grantor a good and sufficient deed quitclaiming to Grantor all said right of way and easement or such portion thereof as may be abandoned. Said easements shall be considered abandoned at the option of the Grantor if Grantee shall not require said easements for the purpose of distribution system voltage or 60 KV uses. In the event Grantee shall fail to remove any pole, wires, guy, anchor or other appliance or fixture within six months after quitclaiming said right of way or portion thereof, then all of such property not so removed shall become the property of Grantor. Grantee hereby agrees to indemnify Grantor against and hold it harmless from any and all loss, damage and liability for damages, whether for damage to or loss of property, or injury to or death of persons, which shall in any way arise out of or be connected with the rights hereby granted, unless such damage, loss, injury or death shall be caused solely by the negligence of Grantor. The word poles when used herein shall be deemed to include the use of steel poles in lieu of wooden poles, together with all necessary and proper foundations and footings therefor. Page 2 of 7 ATTACHMENT B The provisions hereof shall inure to the benefit of and bind the successors and assigns of the respective parties hereto, and all covenants shall apply to and run with the land. Dated , 20 CITY OF PALO ALTO, a California chartered municipal corporation By Name Title By Name Title I hereby certify that a resolution was adopted on the day of , 20 by the authorizing the foregoing grant of easement. By: Title: Page 3 of 7 ATTACHMENT B ATTACH TO LD: 2305-02-0469 South Coast -Area 1, Peninsula Division Land Service Office:SF Operating Department: Electric Transmission T.055., R0.2W., MDM W1/2 OF SE 1/4, SEC 31 & SW1/4 OF NE1/4 FERC License Number(s):N/A PG&E Drawing Number(s): 28224 SH.4 & 28225 SH.5;L-9465 PLAT NO: Electric: D1124; Gas: 3280-37 LD of any affected documents: 2305-02-0002(PARCEL 11) LD of any Cross-referenced documents: 2305-02-0047 TYPE OF INTEREST: 3, 6, 42 SBE Parcel Number: N/A (For Quitclaims, % being quitelaimed):N/A Order # or PM #: 30823988-007 JCN: 22-13-044 County: SAN MATEO & SANTA CLARA Utility Notice Numbers (if applicable) :N/A 851 Approval Application No. Decision : N/A Prepared By: N159/TEP Checked By:TEP Revised By: TEP (1-30-14); Checked By: N1S9 (1-31-14) Page 4 of 7 ATTACHMENT B LD 23505-02-0469 2013443 (22-13-044) 10 13 1 San Francisquito Creek Relocate Existing Facilities Cooley Landing -Palo Alto 115KV EXHIBIT "A" The strip of land situate partially within the City of Palo Alto, County of Santa Clara, and partially within the City of East Palo Alto, County of San Mateo, State of California, described as follows: (Santa Clara County APN 008-06-001) (San Mateo County APN 063-580-100) 1. A strip of land of the uniform width of 40 feet extending from a line which has a bearing of south 76°52'00" west and passes through the southerly terminus of a course in the description of the parcel of land described and designated PARCEL II in the deed from the City of Palo Alto to Pacific Gas and Electric Company dated April 20, 1966 and recorded in Book 7385 of Official Records at page 78, Santa Clara County Records, and in Book 6175 of Official Records at page 336, San Mateo County Records, which course has a bearing of south 13°08' east and a length of 1033.5 feet, southeasterly to a line distant 30 feet westerly from (measured at a right angle to) the center line of the line of towers erected under and by virtue of the deed from Peter Faber and wife to Pacific Gas and Electric Company dated February 16, 1934 and recorded in Book 620 of Official Records at page 31, San Mateo County Records, and along the route designated Part 1 therein, and lying 20 feet on each side of the line described as follows: Commencing at the southerly terminus of the course in the description of said PARCEL II which has a bearing of south 13°08' east and a length of 1033.5 feet and running along said line which has a bearing of south 76°52'00" west (a) south 76°52'00" west 20.00 feet to the TRUE POINT OF BEGINNING of said line; thence (1) south 13°08'00" east 6.89 feet; thence (2) south 17°00'48" east 443.59 feet to a point herein for convenience called Point "A"; thence (3) south 77°27'20" east 367.52 feet to a point herein for convenience called Point "B"; thence continuing (4) south 77°27'20" east 16.81 feet to a point in said line which is 30 feet westerly from the line of towers erected along the route designated Part 1 in said deed dated February 16, 1934. 2. A strip of land of the uniform width of 10 feet extending southwesterly from the westerly and southwesterly boundary lines of the strip of land hereinbefore described and Page 5 of 7 ATTACHMENT B LD 23505-02-0469 2013443 (22-13-044) 10 13 1 San Francisquito Creek Relocate Existing Facilities Cooley Landing -Palo Alto 115KV designated 1 and lying 5 feet on each side of the line which begins at said Point "A" and runs (a) south 42°42'33" west 23.13 feet to a point in the boundary line of said strip of land designated 1, being the TRUE POINT OF BEGINNING of said line; thence (1) south 42°42'33" west 21.87 feet. 3. A strip of land of the uniform width of 10 feet extending southeasterly from the easterly boundary line of said strip of land designated 1 and lying 5 feet on each side of the line which begins at said Point "B" and runs (a) south 77°27'20" east 16.81 feet to a point in the easterly boundary line of said strip of land designated 1 and being the TRUE POINT OF BEGINNING of said line; thence (1) south 77°27'20" east 23.19 feet. 4. A strip of land of the uniform width of 10 feet extending northwesterly from the northerly boundary line of said strip of land designated I and lying 5 feet on each side of the line which begins at said Point "B" and runs (a) north 15°41'09" west 22.70 feet to a point in the northerly boundary line of said strip of land designated 1 and being the TRUE POINT OF BEGINNING of said line; thence (1) north 15°41'09" west 17.30 feet. The foregoing descriptions are based on surveys made by Pacific Gas and Electric Company in March 2008, March 2012 and June 2012. The bearings and distances used in the foregoing descriptions are based on the description of the parcel of land described and designated PARCEL 11 in said deed dated April 20, 1966. 2 JOHN C. SCHOCK No. 832 Page 6 of 7 ATTACHMENT B (T.5 R.21V,. MDM) vv1/2 of SE1/4 W1/4 of NE 1/4 SEG, 31 .f) ' o 3,c C 013 07 00 Z�� rortl C 1 1 PROPOSE[)N 1 PG&E POLE N 1 � 1 \ 1 CITY OF 1 PALO ALTO \ \APN 063-580-100', 1 }„ \ PROPOSED 1 1 PG&E POLE SEE E TAIL 'A' CIY OF PALO ALTO APN 008-06-001 o 0 ON cep O� O 1-0 /7,0 1- c$, T. B -(Strip 2) NOTE: The foregoing descriptions are based on surveys made by Pacific Gas ancTElectrEc Companyin March 2008, March 2012 and June 2012. The bearings and distances used in the foregd'ngg descri�tlons are basedonthe description of the docuementanumber described designated PARCEL II in PG&E 1 469 t i PORTIJV OF EASEMENT t PG&E POLE LINE \ 7385 OR 78 SCR++,, \ 6175 O 33f;, SMC PTPARCEL II BE QUIT I.eIMED Map Legend EP EDGE OF PAVEMENT FENCE ESQ EDGE OF ROAD — • — - — - — PROPOSED EASEMENT CENTERLINE — — PROPOSED EASEMENT BOUNDARY LINE EXISTING EASEMENT BOUNDARY LINE EXISTING ELECTRIC TRANSMISSION LINE 1)I EXISTING TOWER r GUY ANCHOR 10' WIDE STRIP (Stnps 2, 3 and 4) ELECTRIC POLE T.P.O.B. TRUE POINT OF BEGINNING ETAIL • NOT TO SCALE) •�` LD 2305-02-0002 '` (PARCEL II) S 13°08'00" E, 1033.5'1 .P.O.B 6 Q1 — *v 0_ 100 200 /300 1 INCH = 100 FEET • • • • Point "B" S77°27'20"E, 16.81' 517°26'00"E, 771.1' AUTHORIZATION 30823988 BY J. RUDNICK/B. PARSONS DR N. TRAVERSO CH S. FREEMAN O.K. M. SANCHEZ DATE 11/14/2013 SAN FRANCISQUITO CREEK POLE LINE FACILITIES COOLEY-LANDING-PALO ALTO 115KV PACIFIC GAS AND ELECTRIC COMPANY San Francisco California PdE 43.59' i� i JOHN C, SCHOCK No. 8329 I r�r/zc I T.P.O,B. (Strip 4) TOWER 02/23 P.O.B trip 3) 30' JCN 22-13-044 AREA SOUTH COAST couNTr SCALE 1"=100' SHEET NO. 1 OF 1 L—DRAW9 I ING h�E5R ICNANGE Page 7 of 7 ATTACHMENT C Quitclaim deed (Rev.01/l t) RECORDING REQUESTED BY AND RETURN TO: PACIFIC GAS AND ELECTRIC COMPANY 245 Market Street, N1 #A, Room 1015 P.O. Box 770000 San Francisco, California 94177 Location: City/Uninc Recording Fee S Document Transfer Tax 5 [ ] This is a conveyance where the consideration and Value is less than$100.00 (R&T 11911). [ ] Computed on Full Value of Property Conveyed, or [ ] Computed on Full Value Less Liens & Encumbrances Remaining at Time of Sale Signature of declarant or a, ent deternninin _ tax LD# 2305-02-0471 (SPACE ABOVE FOR RECORDER'S USE ONLY) EASEMENT QUITCLAIM DEED 2014110 (22-13-044) 2 14 3 San Francisquito Creek Relocate Existing Facilities Cooley Landing -Palo Alto 115 kv PACIFIC GAS AND ELECTRIC COMPANY, a California corporation, hereinafter called PG&E, hereby quitclaims to CITY OF PALO ALTO, a California chartered municipal corporation, the real property, situate partially within the City of Palo Alto, County of Santa Clara, and partially within the City of East Palo Alto, County of San Mateo, State of California, described as follows: (Santa Clara County APN 008-06-001) (San Mateo County APN 063-580-100) The easement and rights within the portion of the parcel of land described and designated PARCEL II in the deed from the City of Palo Alto to Pacific Gas and Electric Company dated April 20, 1966 and recorded in Book 7385 of Official Records at page 78, Santa Clara County Records, and in Book 6175 of Official Records at page 336, San Mateo County Records, described in EXHIBIT "A" and shown on EXHIBIT "B", both of which are attached hereto and made a part hereof. Page 1of5 ATTACHMENT C The real property hereby quitclaimed is no longer necessary or useful to PG&E in the performance by it of its duties to the public. Dated , 20 PACIFIC GAS AND ELECTRIC COMPANY, a California corporation, By Name Title Page 2 of 5 ATTACHMENT C ATTACH TO LD: 2305-02-0471 South Coast -Area 1, Peninsula Division Land Service Office: SF Operating Department: Electric Transmission T.05S., RO.2W., MDM SEC 31 W1/2 OF SE1/4, & SW1/4 OF NE1/4 FERC License Number(s): NA PG&E Drawing Number(s): 28224 SH.4 & 28225 SH.5;L- 9531; L-9465 PLAT NO: Electric: D1124; Gas: 3280-57 LD of any affected documents: 2305-02-0002(PARCEL II) LD of any Cross-referenced documents: 2305-02-0047 Reference Doc: LD 2305-02-0469 TYPE OF INTEREST: 3, 11q, 42 SHE Parcel Number: N/A (For Quitclaims, % being quitclaimed):N/A Order # or PM #: 30823988-007 JCN: 22-13-044 County: SAN MATEO & SANTA CLARA Utility Notice Numbers (if applicable) :N/A 851 Approval Application No. Decision : N/A Prepared By: TEP4 Checked By: N1S9 Revision 1: 10/16/201 N1S9 Revision 2: 10/20/2014 N1S9 Revision 3: 10/28/2014 Page 3 of 5 ATTACHMENT C EXHIBIT "A" (Santa Clara County APN 008-06-001) (San Mateo County APN 063-580-100) The easement and rights within the portion of the parcel of land described and designated PARCEL II in the deed from the City of Palo Alto to Pacific Gas and Electric Company dated April 20, 1966 and recorded in Book 7385 of Official Records at page 78, Santa Clara County Records, and in Book 6175 of Official Records at page 336, San Mateo County Records, lying northerly and easterly of the line described as follows Beginning at the southerly terminus of the course in the easterly boundary line of said PARCEL 11, which has a bearing of south 13°08' east and a length of 1033.5 feet, and running (1) south 17°00'48" east 437.23 feet; thence (2) south 77°27'20" east 339.45 feet; thence (3) north 15°41'09" west 14.61 feet; thence (4) north 74°18'51" east 10.00 feet; thence (5) south 15°41'09" east 19.98 feet; thence (6) south 77°27'20" east 7.94 feet, more or less, to a point in a line distant 30 feet westerly from (measured at a right angle to) the center line of the line of towers erected under and by virtue of the deed from Peter Faber and wife to Pacific Gas and Electric Company dated February 16, 1934 and recorded in Book 620 of Official Records at page 31, San Mateo County Records, and along the route designated Part 1 therein. The foregoing description is based on surveys made by Pacific Gas and Electric Company in March 2008, March 2012 and June 2012. The bearings and distances used in the foregoing description are based on the description of the parcel of land described and designated PARCEL II in said deed dated April 20, 1966. Page 4 of 5 ATTACHMENT C .5\S. R.2W,.,MDM) w1/2 of SE1/4 SW1/4 of NE 1/4 SEG, 31 Y OF PALO, ALTO APN 008;06-001 N .p46 r h 94. ;yam CITY OF v' PALO ALTO -�d \ \APN 063-580-100\ '\� PORTION OF EASEM PG&E POL LINE 7385 OR 78 SCCR 6175 OR 336, SMCR (PARCEL II UITCLAIMED 6 01 -_ NOTE: (NJ The foregoing descriptions are based on surveys made by Pacific Gas andiElectric Companyin March 2008, March 2012 and 3une 2012.\The bearings and distances used In the forego}}1ngq descriptions are based on the description of the parc l bf land bdescribed2and05-desigqgnated PARCEL II in PG&E 0 10` 200 1 INCH = 100 FEET AUTHORIZATION 30823988 BY J. RUDNICK/B. DR PARSONS N. TRAVERSO CH S. FREEMAN O.K. M. SANCHEZ DATE 10/20/2014 0 Map Legend x FENCE — - — - — - — PROPOSED EASEMENT CENTERLINE — — — — PROPOSED EASEMENT BOUNDARY LINE EXISTING EASEMENT BOUNDARY LINE 1 EXISTING ELECTRIC TRANSMISSION LINE ki EXISTING TOWER `1) ' ELECTRIC POLE P.O.B. POINT OF BEGINNING AREA TO BE QUITCLAIMED \(NCTTO SC LE) I N 15°41'09' N 14.61' --- - i f .4 577°27'20"E, 16.81' 517°26'00"E, 771.1' EXHIBIT "B" PACIFIC GAS AND ELECTRIC COMPANY San Francisco California ]CN 22-13-044 AREA SOUTH COAST COUNTY SAN MATFO/SANTA CLARA PdE N7 4°18'51"E4 10.0' 15°41'9" E ) 19.98' S %°174:20" E 1 7 — SEE DETAIL - TOWER 02/23 30' SCALE 1"=100' SHEET NO. 1 OF 1 DRAWING -�9 NUMBER. CHANGE Page 5 of 5 CITY OF PALO ALTO City of Palo Alto (ID # 5317) City Council Staff Report Report Type: Consent Calendar Meeting Date: 12/15/2014 Summary Title: Utilities Department Marketing Contract Amendment Title: Approval of Amendment One to Contract with Tandem Creative, Inc. to Extend the Contract Term Through December 31, 2016 and to Increase the Total Compensation by $220,000 from $198,000 for a Total Not to Exceed Amount of $418,000 to Provide Marketing Design Services for the Utilities Department From: City Manager Lead Department: Utilities Recommendation Staff recommends that Council approve and authorize the City Manager to execute Amendment One to Contract S12143788 (the "Contract") with Tandem Creative, Inc. (formerly Reizbos Holzbauer Group LLC) to extend the term of the Contract up to two (2) years through December 31, 2016 and add funds in the amount of $220,000 for a total revised contract not to exceed amount of $418,000 to continue to provide marketing design services for the Utilities Department on energy and water efficiency programs plus safety awareness and emergency preparedness campaigns. Executive Summary City of Palo Alto Utilities (CPAU) administers a broad portfolio of energy and water efficiency programs that are implemented by both staff and third -party vendors. These programs target both residential and non-residential customers within the City. Tandem Creative, Inc., successor -in -interest to Riezbos Holzbaur Group, LLC, has provided both strategic and tactical marketing support for these programs. The recommended contract amendment increases the maximum annual compensation to Tandem Creative Inc. by 50%; this increase covers the additional marketing support for CPAU communications campaigns on safety awareness and emergency preparedness. Background On January 4, 2012, CPAU executed a professional services contract with Tandem Creative, Inc. ("Tandem"). The vendor was selected through a formal Request for Proposal process. The scope of the original contract focused on program marketing for Utilities Marketing Services, which includes water, gas and electric efficiency programs targeting both residential and non - City of Palo Alto Page 1 residential customers. Under this original contract, the maximum annual payment for professional services and reimbursable expenses was set at $60,000, for a three-year not -to - exceed amount of $198,000, including $18,000 for additional services. The original contract will expire on December 31, 2014. Discussion In the past three years, Tandem has provided advertising, graphic design, copy writing and marketing communication services to assist CPAU promote customer programs and services related to water and energy efficiency, as well achieve goals for environmental sustainability. Over the past eighteen months, CPAU has expanded its work with Tandem Creative, Inc. to develop customer outreach materials related to general utility education initiatives such as safety awareness and emergency preparedness. In particular, CPAU has stepped up its annual gas safety awareness campaigns to comply with federal safety regulations. To ensure continuity of marketing support for CPAU's customer programs and outreach campaigns while the city considers a new, comprehensive communication strategy, staff recommends Council approval of an amendment to the existing contract with Tandem to extend the contract through December 31, 2016 and increase the not -to -exceed compensation by $220,000, which includes $38,000 for additional services, for a revised total not -to -exceed amount of $418,000. The additional funding will allow Tandem to continue to provide marketing services to CPAU for an additional two (2) years, and to expand the scope of those services into new areas of utility safety awareness campaigns and education initiatives. Compensation to Tandem is based on professional services performed, which are generally billed at an hourly rate. Should the City of Palo Alto select a new vendor to provide marketing support services for all City departments before December 31, 2016, this amended contract with Tandem could be terminated at an earlier date pursuant to Section 19 of the Contract. Upon termination of the Contract by the City, Tandem will be paid for services covered under the Contract's scope of services that are rendered on or before the effective date of termination. A contract summary is included below: TOTAL Not -to -Exceed Amount Compensation Increase End of Term Original Contract (January 4, 2012) $198,000 (includes $18,000 for additional services) n/a December 31, 2014' Amendment No. 1 (Proposed) $418,000 (includes $38,000 for additional services) $220,000 December 31, 2016 Resource Impact City of Palo Alto Page 2 While the annual compensation to Tandem will increase under this contract amendment, there is no impact to the current budget. Funds for this contract amendment are included in the FY 2015 Utilities Communication and Demand Side Management program budgets and expenditures for subsequent years are subject to annual appropriations. Policy Implications The proposed amendment to the contract supports the Council -approved Ten-year Energy Efficiency Portfolio Plan, the Long-term Electric Acquisition Plan, the Gas Utility Long-term Plan, the Urban Water Management Plan and Comprehensive Plan Goal N-9. Implementation of marketing services for efficiency programs supports greenhouse gas reduction goals identified in the Palo Alto Climate Protection Plan and in the California Global Warming Solutions Act of 2006 (AB 32). Continued implementation of public awareness campaigns, outreach for utility safety education and emergency preparedness to customers allows the City to meet compliance with regulatory requirements and legislative policy guidelines. Environmental Review Approval of the recommended Contract amendment does not meet the definition of a project pursuant to Section 21065 of the California Public Resources Code, thus no environmental review under CEQA is required. Attachments: • Attachment A: Amendment One to Contract S12143788 with Tandem Creative Inc. for the Utilities Department (PDF) There was a typographical error in the end of term date listed in the original contract. The proposed amendment will correct this error to avoid any confusion. City of Palo Alto Page 3 DocuSign Envelope ID: 628B1 EBB -367B-421 F-9DA2-76A03BCEA47C AMENDMENT NO. ONE TO CONTRACT NO. S12143788 BETWEEN THE CITY OF PALO ALTO AND TANDEM CREATIVE, INC., SUCCESSOR-IN-INTERST TO RIEZBOS HOLZBAUR GROUP This Amendment No. One ("First Amendment") to Contract No. S12143788 ("Contract") is entered into December 16, 2014 ("Amendment Effective Date"), by and between the CITY OF PALO ALTO, a California chartered municipal corporation ("CITY"), and Tandem Creative Inc., located at 847 Sansome Street, 3rd Floor, San Francisco, California, successor -in -interest to Riezbos Holzbaur Group ("CONSULTANT") (collectively, the "Parties"). RECITALS: A. The Contract dated effective January 4, 2012 was entered into between the Parties for Consultant to provide marketing services for the City Utilities Department. B. The Consultant entered into the Contract as RIEZEBOS HOLZBAUR GROUP, a limited liability corporation located at 847 Sansome Street, 3rd Floor, San Francisco, California and now wishes to change their name to TANDEM CREATIVE, INC., a California Corporation, located at 4083 24th Street, San Francisco, California ("CONSULTANT"). C. The Parties now wish to revise the term of the Contract effective through December 31, 2016. D. The Parties also desire to increase the "Not to Exceed Compensation" from $198,000 to $418,000, which includes $38,000 for additional services, to allow Consultant to provide additional marketing services for the extended contract term. E. To accomplish this purpose, the Parties wish to amend the Contract. NOW, THEREFORE, in consideration of the covenants, terms, conditions, and provisions of this First Amendment, the Parties agree: SECTION 1. Section 2. TERM is hereby amended to read as follows: "SECTION 2. TERM. The term of this Agreement shall be from January 4, 2012 through December 31, 2016 unless terminated earlier pursuant to Section 19 of this Agreement." SECTION 2. Section 4. NOT TO EXCEED COMPENSATION is hereby amended to read as follows: "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 Three Hundred Eighty Thousand Dollars ($380,000). In the event Additional Services are authorized, the total compensation for Services, Additional Services and reimbursable expenses shall not exceed Four Hundred DocuSign Envelope ID: 628B1 EBB -367B-421 F-9DA2-76A03BCEA47C Eighteen Thousand Dollars ($418,000). The applicable rates and schedule of payment are set out in Exhibit "C", entitled "COMPENSATION" and Exhibit "C- 1", entitled "HOURLY RATE SCHEDULE", both of which are 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 compensation of CITY. Additional Services shall mean any work that is determined by CITY to be necessary and authorized by the CITY project managers, but which is not included within the Scope of Services described in Exhibit "A". SECTION 3. Section 13. PROJECT MANAGEMENT is hereby amended to read as follows: SECTION 13. PROJECT MANAGEMENT. CONSULTANT will assign Yvo Riezebos as the Account Manager to have supervisory responsibility for the performance, progress, and execution of the Services to represent CONSULTANT during the day-to-day work on the Project. If circumstances cause the substitution of the project director, or any other key personnel for any reason, the appointment of a substitute project director and the assignment of any key new or replacement personnel will be subject to the prior written approval of the CITY's project manager. CONSULTANT, at CITY's request, shall promptly remove personnel who CITY fmds do not perform the Services in an acceptable manner, are uncooperative, or present a threat to the adequate or timely completion of the Project or a threat to the safety of persons or property. The City's project managers are: Christine Tam, Utilities Marketing Services Manager, 250 Hamilton Avenue, Palo Alto, CA 94301, Telephone: (650) 329 2289; and Catherine Elvert, City of Palo Alto Utilities Department, Utilities Communications Manager, 250 Hamilton Avenue, Palo Alto, CA 94301, Telephone: (650) 329 2417. SECTION 4. The following exhibits to the Contract are hereby amended to read as set forth in the attachment(s) to this First Amendment, which are incorporated in full by this reference: a. Exhibit "A" entitled "SCOPE OF SERVICES" b. Exhibit "B" entitled "SCHEDULE" c. Exhibit "C" entitled "COMPENSATION" d. Exhibit "C-1" entitled "HOURLY RATE SCHEDULE" SECTION 5. Except as herein modified, all other provisions of the Contract, including any exhibits and subsequent amendments thereto, shall remain in full force and effect. DocuSign Envelope ID: 628B1 EBB -367B-421 F-9DA2-76A03BCEA47C IN WITNESS WHEREOF, the Parties have by their duly authorized representatives executed this First Amendment on the Amendment Effective Date. CITY OF PALO ALTO TANDEM CREATIVE, INC. DocuSigned by: City Manager By APPROVED AS TO FORM: Senior Deputy City Attorney artm l-aLA Wt CC48C75DCBEF45A... Name: Gregg Holzbaur Title: CEO, Executive Di rector DocuSign Envelope ID: 628B1 EBB -367B-421 F-9DA2-76A03BCEA47C EXHIBIT "A" SCOPE OF SERVICES CONSULTANT will provide both strategic and tactical marketing support to assist the City of Palo Alto Utilities ("City" or CPAU) to promote programs and services to CPAU customers related to water and energy efficiency, conservation, sustainability efforts, as well as safety awareness, emergency preparedness and general CPAU education initiatives. CONSULTANT will incorporate both traditional and online, social marketing techniques for the development of materials and messages within the design specifications set by the Project Manager. CONSULTANT will work with the City's printer of choice to produce marketing pieces or advertising material. CONSULTANT will be providing support to both Utilities Marketing Services and Utilities Communications. Tasks completed for Utilities Marketing Services shall be invoiced as UMS Task 1, UMS Task 2, etc. Similarly, tasks completed for Utilities Communications shall be invoiced as Comm Task 1, Comm Task 2, etc. Task 1: Market Research CONSULTANT will gather data by conducting research (primary and/or secondary*) to gain insight into consumers' perceptions as well as evaluate the impact of existing CPAU program and educational efforts. *To be determined once client objectives are established Deliverables • Key Findings Report • Research Summary Task 2: Strategic Planning CONSULTANT will assess the market research findings and work closely with CPAU to develop the objectives and approach for CPAU's customer service, efficiency and customer renewable programs, safety awareness, emergency preparedness and general utility education initiatives. Deliverables • Market Analysis • Proposed Objectives • Proposed CPAU Marketing and Communications Plan Task 3: Implementation CONSULTANT will implement the approved Marketing and Communications Plan with close coordination with CPAU. Deliverables • To be determined in CPAU Marketing and Communications Plan DocuSign Envelope ID: 628B1 EBB -367B-421 F-9DA2-76A03BCEA47C Task 4: Develop Integrated Outreach Strategies sand Materials CONSULTANT will develop distinctive creative concepts tailored to CPAU's target audience, while remaining consistent with CPAU branding. Examples of CPAU audiences include: residents, businesses and industry, schools and community groups, internal staff, elected officials and/or other government agencies with which the City collaborates. Specifically CONSULTANT shall assist CPAU with any of the following: a. Collaborate with Project Manager at the start of each calendar year to develop an annual outreach, incorporating traditional and new media. b. Create traditional outreach materials and provide graphic design services, including but not limited to: • CPAU bill inserts, print ads, factsheets, newspaper articles, displays, brochures • Promotional items • Customized illustrations and artwork for a variety of formats • High -resolution photographs • Images, charts and graphs clearly explaining complicated information or a compelling call to action • Videos and animated images for online advertising • Movie making, including story and script development, animation and graphics Per section 14 of the Contract, all work products, including any artwork, developed, prepared or designed for this Contract shall become the property of the City. Deliverables • Creative Concepts • Mechanicals Task 5: Social Media CONSULTANT shall provide the following deliverables on an as requested basis. Deliverables • Twitter Mobile Site • Electric Vehicle (EV) Landing Page DocuSign Envelope ID: 628B1 EBB -367B-421 F-9DA2-76A03BCEA47C 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 from NTP No. of Days/Weeks Task 1: Market Research as needed Task 2: Strategic Planning as needed Task 3: Implementation ongoing Task 4: Develop Integrated Outreach Strategies and Materials on going Task 5: Social Media as needed DocuSign Envelope ID: 628B1 EBB -367B-421 F-9DA2-76A03BCEA47C EXHIBIT "C" COMPENSATION The CITY agrees to compensate the CONSULTANT for Services performed in accordance with the terms and conditions of this Agreement based on the hourly rate schedule attached as Exhibit C-1. The compensation to be paid to CONSULTANT under this Agreement for all Services described in Exhibit "A" ("Services") and reimbursable expenses shall not exceed $380,000. CONSULTANT agrees to complete all Services, including reimbursable expenses, within this amount. In the event Additional Services are authorized, the total compensation for Services, Additional Services, and reimbursable expenses shall not exceed Four Hundred Eighteen Thousand Dollars ($418,000). 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 -related expenses, 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 $200.00 shall be approved in advance by the CITY's Project Manager. ADDITIONAL SERVICES The CONSULTANT shall provide additional services only by advanced, written authorization from the CITY. The CONSULTANT, at the CITY's Project Manager's request, shall submit a detailed written proposal including a description of the scope of services, schedule, level of effort, and CONSULTANT's proposed maximum compensation, including reimbursable expenses, for such services based on the rates set forth in Exhibit C-1. The additional services scope, schedule and maximum compensation shall be negotiated and agreed to in writing by the C1TY'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. DocuSign Envelope ID: 628B1 EBB -367B-421 F-9DA2-76A03BCEA47C EXHIBIT "C-1" HOURLY RATE SCHEDULE Description Rate Basis Rate Creative (Direction) Per hour $130.00 Custom Photography Per hour $130.00 Blended Agency Rate Per hour $100.00 Design Per hour $93.00 Copy writing Per hour $93.00 Press check/print proof Per hour $93.00 Photo editing Per hour $93.00 Project Management Per hour $93.00 Print design/layout Per hour $93.00 Web design Per hour $93.00 Twitter Maintenance Email ad flyer/ e -newsletter Per hour Per hour $93.00 $93.00 Mechanicals Per mechanicals $70.00 Stock Photos (royalty free) Per photo $25.00 each Translation services Per word 1 hour minimum at $100.00 $0.50 Travel/mileage rate Per hour No Charge Archive CD Per hour No Charge CITY OF PALO ALTO City of Palo Alto (ID # 5325) City Council Staff Report Report Type: Consent Calendar Meeting Date: 12/15/2014 Summary Title: 1451-1601 California Avenue Final Map Title: Approval of a Final Subdivision Map for the Previously Approved Mayfield Agreement Housing Project at 1451-1601 California Avenue, Including 68 Detached Single Family Residences and 112 Multi -family Condo Units. Environmental Assessment: City of Palo Alto/Stanford Development Agreement and Lease Project Environmental Impact Report (State Clearinghouse No. 2003082103) From: City Manager Lead Department: Planning and Community Environment Recommendation Staff recommends that the City Council approve the final subdivision map for the previously approved residential project at 1451-1601 California Avenue pursuant to Palo Alto Municipal Code Section 21.16 and the Subdivision Map Act. Executive Summary The residential development project at 1451-1601 California Avenue was the subject of the Mayfield Development Agreement adopted by the City of Palo Alto and Stanford University in 2005. A related architectural review application and tentative subdivision map were approved by the City Council on June 23, 2014 with several modifications and numerous conditions of approval. Tonight's requested action would approve a final subdivision map, dividing the existing three parcels (16.96 acres) into 68 single family lots, two condominium lots, and 17 private street/common area parcels for a total of 87 parcels. Subsequent applications will provide the details of building and road construction consistent with the adopted tentative map and conditions of approval. Background The 2005 Mayfield Development Agreement between the City and Stanford University gave Stanford the right to construct up to 250 dwelling units on two sites in the Stanford Research Park, and to relocate 300,000 square feet of R&D/office elsewhere in the Research Park. This City of Palo Alto Page 1 final map application relates to the market rate housing portion of that agreement. To proceed with this project component, Stanford first obtained City approval of the project design, as recommended by the Architectural Review Board (ARB) and approved by Council on appeal with the Tentative (subdivision) Map, and must comply with mitigation measures and other requirements of the Development Agreement. The applicant has already received approvals for a mixed use project with 70 below market rate units at another site on El Camino Real. The applicant submitted this Final Map application to the City in August 2014. On April 18, 2014, the Director of Planning and Community Environment approved the Architectural Review (AR) application for replacement of an office/research & development campus with 180 residential units, a community center, a fitness building, swimming pool, and open space amenities on the 1451-1601 California Avenue site, following a March 20th public hearing and recommendation by the Architectural Review Board (ARB). The Director's decision was appealed to the City Council and on June 9th the Council voted to remove the item from the consent calendar and scheduled the hearing for June 23, 2014. The appeal hearing was combined with the public hearing on the tentative map application for a subdivision of three existing parcels. The Planning and Transportation Commission (PTC) reviewed the Tentative Map in a public hearing on May 28th and recommended approval. On June 23rd, the City Council approved the Tentative Map for the subdivision of the property and upheld the Director's approval of the ARB application with the following changes and additions: 1) add a sidewalk along the new Amherst Street extension, 2) reduce the bulb outs where the new streets intersect with California Avenue, 3) direct staff to examine the elimination of parallel parking on the south side of California Avenue in order to add a bike lane, 4) direct staff to engage the neighborhood and the Safe Routes to School Committee, to establish safe pathways for bikes and pedestrians heading in and out of the new development, and 5) request that the Fire Chief provide Council an informational report on ingress and egress for fire safety equipment for driveways A and B. Discussion The Final Map application is the second of a two -phased process to subdivide the existing three (3) parcels, totaling 16.96 acres, into 68 single-family lots, two (2) condominium lots, and 17 private street/common area parcels, for a total of 87 parcels. The Final Map is the official, legal document that is recorded with the County that establishes the property lines and easements within the subdivision. The Final Map must be prepared under the direction of a registered civil engineer or a licensed land surveyor and be based on a survey. Approval of a Final Map is ministerial if the Final Map is in substantive compliance with the approved Tentative map and the subdivider has satisfied the conditions of approval attached to the tentative map. While many cities delegate approval of the Final Map to the City Engineer, under PAMC Section 21.16.240, the City Council is responsible for the approval. Each single family lot would be developed with a single family home. The condominium lots would each be developed with three- and four-story buildings for a total of 112 multi -family City of Palo Alto Page 2 units. Stanford intends to sell the units via long-term residential leaseholds to members of the University faculty. To finalize the subdivision of the condominium units, Stanford must also apply to the California Bureau of Real Estate. The lots would be accessed from California Avenue, by way of three new private rights -of -way and other internal streets constructed on the site. Each entrance is designed as an extension of the existing College Terrace grid pattern of residential streets: Columbia, Bowdoin and Amherst Streets. The applicant has also offered to provide construction access to Page Mill Road for the first phases of construction until September 30, 2015. The applicant's project description is provided as Attachment E. Street Names Given that the proposed subdivision extends the grid pattern of the existing community, existing street names are proposed to be extended onto the project site. After reviewing these street name extensions, staff is recommending approval. The project does however include one new street name that has been vetted through the City's Historical Association Board and the Police Department's Technical Services Division. The new street name, "Drake Way", is proposed to honor Professor Drake's leadership in both the University and the Palo Alto communities. St. Clair Drake (1911-1990) was a fighter of civil rights in the United States and abroad, an influential scholar whose research covered urban minority communities in Great Britain and the United States, and the development of democratic institutions in African societies in the post - colonial era. Professor Drake joined the Stanford faculty in the late 1960's and remained an active force in the university community until his death in 1990. A long-time resident of Palo Alto, in his later years he assisted the Palo Alto School District by reviewing textbooks and curriculum materials in social studies to ensure fair and balanced treatment of cultural issues. For these reasons, staff recommends the street name of "Drake Way". Council Changes at the time of Tentative Map approval On June 23rd, the City Council upheld the Directors approval of the ARB application and approved the Tentative Map for the subdivision of the property with several project changes and additions. While approval of the Final map will not affect the implementation of these items because they do not change the proposed right of way of the new streets, the progress on these items is discussed below. 1) add a sidewalk along the new Amherst Street extension In pending Building permits, Stanford has proposed the elimination of on street parking on the southwest side of the Amherst Street extension to allow space for sidewalks along both sides of this new street. The project previously included 108 guest parking spaces. While the new sidewalk eliminated 15 parking spaces, locations were found for 13 spaces, resulting in a net loss of two (2) parking spaces. Parking levels will remain above the City's requirement. City of Palo Alto Page 3 2) reduce the bulb -outs where the new streets intersect with California Avenue Stanford has worked with the College Terrace Residents' Association to reduce the bulb -outs at the project entrances along California Avenue. The bulbs -out at Amherst Street were reduced to match the 23 foot width of the existing street. The applicant did not propose bulb -outs at Bowdoin Street, so no changes are needed. The bulb -outs at Columbia Street have been reduced significantly. The new street width will now be 34 feet at the entrance, ten (10) feet wider than previously designed and just two (2) feet less than the existing street. The curbs at the entrance of Columbia will be painted red to indicate 'no parking', whereas the existing street across California Avenue includes 14 feet of street parking within its width. The entrances of these streets will be finalized through the City's review of Building permits for on - site work. 3) staff directed to examine the elimination of parallel parking on the south side of California Avenue in order to add a bike lane Staff is currently working with the neighborhood to determine the appropriate outreach process for this project. The two approaches identified to date are as follows: (1) Noticing, a community meeting and a memo to Council, then implementation; or (2) Noticing and implementation (assuming staff receives no negative comments.) 4) staff directed to engage the neighborhood and the Safe Routes to School Committee to establish safe pathways for bikes and pedestrians heading in and out of the new development Outreach to the community will be conducted once the Palo Alto Unified School District (PAUSD) has determined which school the new residents would attend, in keeping with the City's Safe Routes to School program. 5) request that the Fire Chief provide Council an informational report on ingress and egress for fire safety equipment for driveways A and B On October 6, 2014, the Fire Department presented to Council the results of a timed experiment that concluded the lack of a turn -around at the end of project's proposed driveways would not impact fire or ambulance operations. Resource Impact There are no resource impacts related to the approval of the Final Map, since the map is consistent with the approved Tentative Map. One time revenues would include development impact fees of approximately $809,000. Policy Implications The Final Map is the document containing the statements, acknowledgements and agreements from the property owner, surveyor, City officials and beneficiaries that the Final Map is in conformance with all applicable regulations and the approved Tentative Map. There are no policy implications related to the approval of the Final Map, since the map is consistent with the approved Tentative Map and the Mayfield Development Agreement. City of Palo Alto Page 4 Environmental Review In conformance with the California Environmental Quality Act (CEQA), an Environmental Impact Report was certified by the City Council for the Mayfield Development Agreement in 2005. The City of Palo Alto/Stanford Development Agreement and Lease Project Environmental Impact Report (EIR) (State Clearinghouse No. 2003082103) concluded that the proposed project would not have a significant effect on the environment with mitigation as proposed except there would be significant and unavoidable Noise impacts, due to the use of heavy equipment during construction. The certified, Final EIR is available for review on the City's web site at: http://www.cityofpaloalto.org/gov/topics/projects/landuse/mayfield.asp. In March 2014, Staff prepared an Environmental Confirmation Memo and determined there are no substantive changes to the previously approved project or circumstances under which the project is being undertaken and no new information, therefore the EIR provides the necessary environmental clearance for this subject project. All mitigation measures as stated in the approve Mitigation Monitoring and Reporting Program (MMRP) have been incorporated into the ARB conditions of approval. Attachments: • Attachment A: Record of Land Use Action for Tentative Map (PDF) • Attachment B: Final Map (hardcopies to Council and Libraries only) (TXT) City of Palo Alto Page 5 Attachment A APPROVAL NO. 2014-04 RECORD OF THE COUNCIL OF THE CITY OF PALO ALTO LAND USE ACTION FOR 1451-1601 CALIFORNIA AVENUE: ARCHITECTURAL REVIEW AND TENTATIVE MAP APPLICATION [FILE NO. 13PLN-00433 AND 14PLN-00119] On June 23, 2014, the City Council upheld the Director's approval of the Architectural Review application and approved the Tentative Map application, to construct 68 single family homes and 112 multi -family homes and subdivide three existing parcels totaling 16.97 acres into 68 lots for single family use, two (2) condominium lots for 112 multi -family units, and 13 private street/common area lots for a total of 83 parcels, making the following findings, determination and declarations: SECTION 1. BACKGROUND. The City Council of the City of Palo Alto ("City Council") finds, determines, and declares as follows: A. On October 16, 2013, Chris Wuthmann of the Board of Trustees of the Leland Stanford Jr. University applied for an Architectural Review application for replacement of an office and research & development campus with 180 residential units, a coirmmunity center, a fitness building, swimming pool, and open space amenities including a park, tot lots, courtyards and tree -lined walkway. • B. On April 14, 2014, Chris Wuthmann of the Board of Trustees of the Leland Stanford Jr. University applied for a Tentative Map application to subdivide three existing parcels totaling 16.97 acres into 68 Tots for single family use, two (2) condominium lots for 112 multi -family units, and 13 private street/common area lots for a total of 83 parcels. The site would be developed with private, Inter- connecting streets that would access California Avenue at three locations. These access points would be aligned directly across from the existing public streets (Amherst, Bowdoin, and Columbia Streets). C. While the AS2 zoning district has no minimum lot size, the average single family home lot would be approximately 4,600 square feet and the two (2) condominium lots would be approximately 1.5 acres each. Staff has determined that the proposed project is in compliance with the applicable AS2 development standards. D. Following staff review, the Architectural Review Board (ARB) considered and recommended approval of the Architectural Review application on March 20, 2014 and the Director of Planning and Community Environment approved the application on April 18, 2014. Fred Balin appealed this decision to the City Council on May 2, 2014. E. Following staff review, the Planning and Transportation Commission (Commission) reviewed and recommended approval of the Tentative Map on May 28, 2014. F. On June 23, 2014, the City Council heard Fred Balin's appeal de novo. After hearing the appeal and public testimony, the Council voted 8-0 to uphold the Director's decision subject to the conditions set forth in Section 5 of this Record of Land Use Action. Page 1 SECTION 2. ENVIRONMENTAL REVIEW. In conformance with the California Environmental Quality Act (CEOA), an Environmental Impact Report was certified by the City Council for the Mayfield Development Agreement in 2005. The City of Palo Alto/Stanford Development Agreement and. Lease Project Environmental impact Report (EIR) (State Clearinghouse No. 2003082103) concluded that the proposed project(s) would not have a significant effect on the environment with mitigation as proposed except there would be significant and unavoidable Noise impacts, due to the use of heavy equipment during construction. The certified, Final. EIR is available for review on the City's web site at: http://www.cityofpaloalto.org/gov/topics/projects/landuse/mavfield.asp. In March 2014, Staff prepared an Environmental Confirmation Memo and determined there are no substantive changes to the previously approved project or circumstances under which the project is being undertaken, and no new information, showing new or substantially more severe environmental impacts connected with the applications, and therefore the EIR provides the necessary environmental clearance for this subject project. All mitigation measures as.stated in the approved Mitigation Monitoring and Reporting Program (MMRP) have been incorporated into the conditions of approval. SECTION 3. ARCHITECTURE REVIEW BOARD FINDINGS The design and architecture of the proposed improvements, 'as conditioned, furthers the goals and purposes of the architectural review as it complies with the Standards for Architectural Review as required in Chapter 18.76.020 of the PAMC): 1) The design is consistent and compatible with applicable elements of the Palo Alto Comprehensive Plan. This finding can be made in the affirmative in that the design is consistent and compatible with applicable elements of the City's Comprehensive Plan in that the project meets numerous policies related to the change in land use (housing element and policies L-75, L-77, and H-3), housing (policies H-1, H-2) sustainable/green building design (policies N-15, N-17, N-28, and N-47), encourage alternate modes of transportation (program T-1, policy T-15), open space/amenities (policies N-15 and N-22)1 and relationship to adjacent properties (policies N-39, and N-40); 2) The design is compatible with the immediate environment of the site. The project, as conditioned, is compatible with the immediate environment of the site in that it provides a transition between the established single family homes of the College Terrace neighborhood and the office buildings In the Stanford Research Park. 3) The design is appropriate to the function of the project. The design is appropriate to the function of the project in that it expresses residential characteristics through the building design, site layout, and landscaping. 4) In areas considered by the board as having a unified design character or historical character, the design is compatible with such character. This finding is made in an affirmative. As noted above, the project will reflect the eclectic nature of the surrounding neighborhood. 5) The design promotes harmonious transitions in scale and character in areas between different designated land uses. The design promotes harmonious transitions in scale and character in areas Page 2 between different designated land uses in that the site would serve as a transition between existing industrial/commercial uses and single-family residences within the neighborhood. Densities and scale have been reduced as the site transitions from the commercial/industrial edge conditions towards the adjacent residential sites. 6) The design is compatible with approved improvements both on and off the site. The proposed project is compatible with both on and off the site improvements in that residential infill development will enhance, maintain, or improve existing infrastructure with the addition of interconnected private streets, sidewalks for pedestrians, and crosswalks at a signed intersection for the safe travel of residents using alternate modes of transportation. 7) The planning and siting of the various functions and buildings on the site create an internal sense of order and provide a desirable environment for occupants, visitors and the general community. The proposed layout provides private and common spaces for interaction by residents and visitors. The proposed single family homes along California Avenue will be detached and reflect the eclectic nature of the design of residences on the north side of the street. Project landscaping and the central location of the main park/community building work to create a cohesive new.development within, and connected to, an existing vibrant neighborhood. 8) The amount and arrangement of open space are appropriate to the design and the function of the structures. This finding can be made in the affirmative in that the project meets the usable open space requirement of the AS2 standards. The project provides 2.67 acres of common usable open space. Common areas include a central park area with a community building and swimming pool, two tot lots, a tree lined walkway, recreation courtyard around the fitness building, and separate courtyards within each multi -family building. Planter strips with tree lined sidewalks are proposed throughout the entire development as well as approximately two acres of open space devoted to landscaped perimeter setbacks. 9) Sufficient ancillary functions are provided to support the main functions of the project and the same are compatible with the project's design concept. This finding can be made in the affirmative in that the project site will be provided with sufficient amounts of common and private open spaces as would be expected with a new residential development. Given the projects location within one mile of the California Avenue Business District, new residents will have easy access to commercial/retail uses that are a necessary part of quality neighborhoods. 10) Access to the property and circulation thereon are safe and convenient for pedestrians, cyclists and vehicles. This finding can be made in the affirmative in that the project has been designed with private, inter -connecting streets that would access California Avenue at three locations. These access points would be aligned directly across from the existing public streets (Columbia, Bowdoin, and Amherst•Streets) for the convenience and safety of pedestrians, cyclists and vehicles. Project streets would be developed with sidewalks to encourage pedestrian activity and roadway widths that will slow traffic to allow for the Integration of cyclists on the project streets. The project complies with the Private Streets Ordinance (though not legally required to do so) and the City's local Fire Code. Page 3 11) Natural features are appropriately preserved and integrated with the project. This finding can be made in the affirmative in that the natural features have been appropriately preserved and integrated with the project in that the primary natural feature on site (Le., existing trees) has been preserved where possible and that a comprehensive tree inventory has been developed and endorsed by the City Arborist to Integrate the development within the existing tree network, as well as to include additional trees where applicable; 12) The materials, textures, colors and details of construction and plant material are appropriate expression to the design and function, and whether the same are compatible with the adjacent and neighboring structures, landscape elements and functions. This finding can be made in the affirmative in that the materials are of high quality and appropriately express the residential nature of the development. The landscapingis cohesive with a variety of tree and plant materials to add vibrancy to the site. Many of the existing perimeter trees will be retained to help the projects more quickly integrate with the surrounding properties. 13) The landscape design concept for the site, as shown by the relationship of plant masses, open space, scale, plant forms and foliage textures and colors create a desirable and functional environment and whether the landscape concept depicts an appropriate unity with the various buildings on the site. The proposed landscaping and open space areas would provide a visually desirable and functional environment. The project provides common and private open space areas .for residents. The landscape concept depicts an appropriate unity with the various buildings on the site in that a variety of species types have been chosen to integrate amongst the existing trees to be preserved and amongst the various structures. 14) Plant material is suitable and adaptable to the site, capable of being properly maintained on the site, andis of a variety, which would tend to be drought -resistant and to reduce consumption of water in its installation and maintenance. The drought resistant plant material is suitable and adaptable to the site, and capable of being properly maintained in that the combination of California native plants with exotic and ornamental materials would have low maintenance and water use requirements. 15) The design is energy efficient and incorporates renewable energy design elements including, but not limited to: (A) Exterior energy design elements; (B) internallighting service and climatic control systems; and (C) Building siting and landscape elements; The project exhibits green building and sustainable design that is energy efficient, water conserving, durable and nontoxic, with high - quality spaces and high recycled content materials. This finding can be made in the. affirmative in that the project will comply with Built It Green, GreenPoint Rated program requirements as stated in PAMC Title 16 with the incorporation of various elements such as high value insulation, tankless water heaters, and use of materials with recycled content. Additional details are provided in the project's Green Building Checklist that is included in the plan set. Page 4 16) The design is consistent and compatible with the purpose of architectural review, as set forth in section18.76.020 (a). The project's design, as conditioned, would promote an environment that is of high design quality and variety. The design is consistent and compatible with the purpose of architectural review, which is to: a. Promote orderly and harmonious development in the city; b. Enhance the desirability of residence or investment in the city; c. Encourage the attainment of the most desirable use of land and improvements; d. Enhance the desirability of living conditions upon the immediate site or in adjacent areas; and e. Promote visual environments which are of high aesthetic quality and variety and which, at the same time, are considerate of each other. SECTION 4. TENTATIVE MAP FINDINGS A legislative body of a city shall deny approval of a Preliminary Tentative Map, if it makes any of the following findings (California Government Code Section 66474): 1. That the proposed map is not consistent with applicable general and specific plans as specified in Section 65451: This finding can not be made in the affirmative. The proposed subdivision is consistent with applicable Comprehensive Plan policies and programs and the design requirements of the Subdivision Ordinance, in that the project would be consistent with the Subdivision Ordinance (PAMC Section 21.20) and that the proposed subdivision Is consistent with the AS2 zoning district, the design requirements of the Subdivision Ordinance (PAMC 21.20), and would be consistent with the City's Housing Element and Comprehensive Plan Goal H-2: Support the construction of housing near schools, transit, parks, shopping, employment and cultural institutions and Policy H1.4 Assure that new developments provide appropriate transitions from higher density development to single family and low density residential districts in order to preserve neighborhood character in that the project includes 180 residential units that will increase opportunities for housing in the area and the development heights will step up as they move away from existing single family residences. 2. That the design or improvement of the proposed subdivision is not consistent with applicable general and specific plans: This finding can not be made in the affirmative. The site is physically suitable for the type of development proposed in that the proposed 68 single family units and the 112 multi -family units are within the density range allowed by existing zoning, in conformance with the Comprehensive Plan, and compatible with the pattern and scale of neighboring development. There is no specific plan designated for the area; 3.. That the site is not physically suitable for the type of development: This finding can not be made in the affirmative. The site can accommodate the proposed 68 single family units and the 112 multi -family units. The site is adjacent to other residential neighborhoods. The design of the subdivision will not cause significant environmental impacts, except temporary construction noise impacts, which were reviewed as part of an Environmental Impact Report and a Mitigation Monitoring Report Program prepared for the project. Further hazardous materials reports submitted to the City show that all hazardous materials on the site either have been or will be remediated to a level that is acceptable for housing, under the supervision of the Department of Toxic Substances Control. Page 5 4. That the site is not physically suitable for the proposed density of development: This finding can not be made in the affirmative. The subdivision would be consistent with the site development regulations of the AS2 zoning district. The proposed density of 10.6 units is less than the allowable density of 15 dwelling units per gross acre. 5. That the design of the subdivision or the proposed improvements is likely to cause substantial environmental damage or substantially and avoidably injure fish or wildlife or their habitat: This finding can not be made in the affirmative. The subdivision would not cause environmental damage or injure fish, wildlife, or their habitat. The project site is located in an established urban area with no riparian or tree habitat for the candidate, sensitive, or special status species in the area. The project will comply with Mitigation Measure BR -3.1 to protect nesting common birds. 6. That the design of the subdivision or type of improvements is likely to cause serious public health problems: This finding can not be made in the affirmative. The subdivision of the existing parcels will not cause serious health problems. The resulting 68 single family parcels and the 112 condominium development will not cause a public health problem in that it is designed to provide access for emergency services, will supply necessary utility services, such as sanitation and water, is consistent with the local Fire Code, and is designed per City and State standards to ensure public safety. The development of facultyhousing near. the University will encourage alternate modes of transportation. Further hazardous materials reports submitted to the City show that all hazardous materials on the site either have been or will be remediated to a level that is acceptable for housing, under the supervisionof the Department of Toxic Substances Control. • 7. That the design of the subdivision or the type of improvements will conflict with easements, acquired by the public at large, for access through or use of, property within the proposed subdivision. In this connection, the governing body may approve. a map if it finds that alternate easements, for access or for use, will be provided, and that these will be substantially equivalent to ones previously acquired by the public. This subsection shall apply only to easements of record or to easements established by judgment of a court of competent Jurisdiction and no authority is hereby granted to a legislative body to determine that the public at large has acquired easements for access through or use of property within the proposed subdivision, This finding can not be made in the affirmative. The subdivision of the existing parcels will not conflict with existing public easements. New utility easements and new private rights of way will be created as necessary. SECTION 5. Conditions of Approval. These approvals are subject to the conditions of approval in Attachments B1 and B2. In addition, in response to the appeal filed, by Fred Balin and public comment made at the June 23, 2014 hearing on this matter as well as representations made by the Applicant at the hearing, the City Council imposed the following additional conditions: a. The Applicant shall add a sidewalk along the east side of Amherst Street within the Project; b. The Applicant shall reduce the bulb outs where the internal Project streets intersect with California Avenue.; c. Rolled curbs shall be used in the Project where necessary to create 26 foot street widths within 20 feet of fire hydrants; Page 6 d. The Applicant shall work with City Staff to examine the elimination of parallel parking along the south side of California Avenue from Hanover St. to Amherst St., and to place bike lanes on both sides of California Avenue. Applicant shall pay for the cost of the feasibility study and the cost of bike lane striping, if any; e. Applicant shall engage the College Terrace neighborhood and Safe Routes to School Committee to facilitate the best safe pathways heading in and out of the Project. SECTION 6, Term of Approval. Architectural Review Approval. The project approval shall be valid for a period of one year from the original date of approval. In the event a building permit(s), if applicable,, is not secured for the project within the time limit specified above, the ARB approval shall expire and be of no further force or effect. Application for extension of this entitlement may be made prior to the one year expiration. Tentative Map Approval. Within two years of the approval or conditional approval of a tentative map the subdivider shall cause the subdivision or any part thereof to be surveyed, and a final map, as specified in Chapter 21.08, to be prepared in conformance with the tentative map as approved or conditionally approved, and in compliance with the provisions of the Subdivision Map Act and this title and submitted to the city engineer PASSED; Berman, Burt, Holman, Kniss, Price, Scharff, Schmid, Shepherd AYES: NOES: ABSENT: ABSTENTIONS: Klien A ST: / City Clerk APPROV I AS TO FORM° Senior Assistant City Attorney Dir ctor of PI and C mmunity Environment Page 7 12608. t xt Not e onl y Page 1 CITY OF PALO ALTO City of Palo Alto (ID # 5309) City Council Staff Report Report Type: Consent Calendar Meeting Date: 12/15/2014 Summary Title: Utilities Substructure Standardization with Oldcastle Title: Approve a Blanket Purchase Order with Oldcastle Precast, Inc., as the City's New Standardized Supplier of Certain Equipment for the Utility's Electric Underground System, in an Annual Amount of $350,000 for a Total Purchase Amount of $1,750,000 Over the Next 4.5 Years From: City Manager Lead Department: Utilities Recommendation Staff recommends that Council approve and authorize the City Manager to execute a blanket purchase order with Oldcastle Precast, Inc. ("Oldcastle"), as the City's new standardized supplier of equipment for the utility's electric underground system, in an amount of $350,000 for the remainder of fiscal year 2015 and $350,000 each of the following four years, for a total purchase amount not -to -exceed $1,750,000 over the 4.5 year period. Staff recommends standardization with Oldcastle for certain equipment for the utility's electric underground system, including pre -cast concrete pads, vaults, and covers consistent with section 2.30.900 of the Palo Alto Municipal Code. Background The Utilities Electric Department ("Utilities") purchases large, pre -cast concrete pads, vaults, covers, and extensions for its underground infrastructure and requires customers to do the same for their projects. Vaults and covers installed by customers become the property of the City of Palo Alto ("CPA") and Utilities is responsible for maintenance and replacement as needed. These materials come in various sizes and styles to meet unique design requirements and field conditions. Contained in these vaults are electric distribution system cables and equipment used to provide power to customers throughout the city. Oldcastle and Jensen Precast ("Jensen") are the only two vendors on the West Coast that manufacture concrete pads, vaults, extensions, and covers in the sizes and styles that meet Utilities' standards for the construction of the utility underground electric system. CPA has authorized blanket purchase orders with Oldcastle (formerly Utility Vault) for the past nine (9) years for these materials as the lowest, responsible bidder. Some variances have been allowed for customer installed equipment or for custom installations, but the vast majority of the vaults City of Palo Alto Page 1 installed in Palo Alto are from Oldcastle. Oldcastle staff has consistently provided to CPA staff timely and responsive service to price quotations, customer requests, materials delivery, and product issues. Jensen was awarded a smaller purchase order for a specific system improvement project, replacing damaged covers, two years ago, but Utilities experienced significant problems with the quality of the product provided, fit of the replacement parts, and Jensen's customer service related to correcting issues. Discussion Staff recommends standardization with Oldcastle for the equipment for the utility's electric underground system pursuant to Section 2.30.900 of the Palo Alto Municipal Code. Section 2.30.900 allows for standardization of supplies, materials or equipment where, among other factors: repair and maintenance costs would be minimized, supplies or spare parts would be minimized, modifications to existing equipment would not be necessary, and matching existing supplies, materials or equipment is required for proper operation of a function or program. Frequently Utilities must repair or modify existing boxes, vaults, and covers so it is important to have standard specifications for this material and also a supplier to ensure uniformity and availability of replacement parts. The vast majority of CPA's existing installed vaults are from Oldcastle. Staff therefore recommends standardization with Oldcastle pursuant to Section 2.30.900 of the Palo Alto Municipal Code for certain equipment for the utility's electric underground system, including pre -cast concrete pads, vaults, and covers for the following reasons: 1. Repair, maintenance, and replacement costs will be minimized • Oldcastle is a supplier to PG&E and Palo Alto takes advantage of the bulk pricing discounts achieved when using the same vaults as PG&E. Although Jensen is also an approved supplier to PG&E, there are very few existing vaults tailored to Jensen's specifications in CPA. • Though vaults from different manufacturers may have similar dimensions, the extensions, covers, and lids are not necessarily interchangeable. With only one supplier, replacement covers, and lids will be readily available and will not require special orders as would be the case if they were from a different supplier. • For a past cover replacement project, several of the custom made covers manufactured by Jensen did not fit correctly requiring significant additional staff time to correct issues. • As the only vendor in the Bay Area (Pleasanton), deliveries from Oldcastle arrive faster and at lower delivery cost with easier access to solutions to installation or product issues. Jensen is located in Sacramento, which has the potential to increase delivery costs for items necessary for repair, maintenance and replacement. 2. Supplies or spare parts would be minimized. City of Palo Alto Page 2 • Oldcastle stocks standard vault sizes and covers that meet CPA specifications. • As CPA uses many of the same vaults as PG&E, Oldcastle keeps a stock on hand that can often readily meet CPA and customer's short lead time delivery requirements. 3. Modifications to existing equipment would not be necessary and the need for custom made equipment would be minimized • Only Oldcastle can supply the exact replacements lids, covers or extensions for their products without necessitating a special order from CPA, which also makes such materials readily available to Utilities and CPA customers. 4. Matching existing equipment facilitates efficient construction and maintenance practices by helping CPA employees and customers to more consistently design, identify, and work with existing utility infrastructure. • Use of a standardized provider with consistent design standards helps allow customers and contractors to produce designs and purchase equipment that meets Utilities requirements more easily. • Field workers are familiar with and can easily identify and work with Oldcastle products because of the existing prevalence of those products in the CPA system. In the past, Council has approved blanket purchase orders for this equipment with annual purchase limits of $250,000 and staff has gone back to Council to amend those contract limits three times during the past six years because of an increase in customer service and capital improvement project needs. Utilities staff is projecting a steady level of new customer service and capital improvement projects this fiscal year. As a result, staff is requesting authorization to set the purchase limit at $350,000 each fiscal year based on historical expenditures and future projections. Timeline The current puchase order with Oldcastle expired in June 2014 and a new, interim purchase order has been created up until December 31, 2014. Utilities is requesting to standardize with Oldcastle and to approve a purchase order of $350,000 for the remainder of FY 2015 and $350,000 annually for the next four (4) fiscal years. In addition to the normal projects, staff will be installing substructures for Underground Utility District 45 in early 2015, necessitating the additional funding. Resource Impact Funding for related electric projects is available in the FY 2015 Capital Budget. Funding for subsequent years for the blanke purchase order are subject to City Council approval of annual appropriations. Policy Implications There are no policy implications. City of Palo Alto Page 3 Environmental Review This blanket purchase order and standardization determination does not meet the definition of a project pursuant to section 21065 of the California Public Resources Code and is otherwise categorically exempt from 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"). City of Palo Alto Page 4 CITY OF PALO ALTO City of Palo Alto (ID # 5163) City Council Staff Report Report Type: Consent Calendar Meeting Date: 12/15/2014 Summary Title: Microsoft True Up Title: Approval of a Contract Amendment to CompuCom Systems, Inc., in the Amounts of $194,470 for Annual Microsoft Licensing True -Up, $70,147 for Office365, and $27,000 for a contract contingency - Contract C12144913; and Adoption of a Budget Amendment Ordinance in the Information Technology Fund in the Amount of $291,617 From: City Manager Lead Department: IT Department Recommendation Staff recommends that Council approve and authorize the City Manager or designee to execute the following: 1) Contract amendment with CompuCom Systems Inc. in the amount of $194,470 to pay for the City's annual True -Up for Microsoft licensing. 2) Contract Amendment with CompuCom Systems Inc. in the amount of $5,401 for the January 2015 monthly costs of Office 365 online licenses and an additional $64,746 for the annual contract cost of Office 365 online licenses. 3) Authorize a 10% contingency of $27,000 for any unforeseen licensing needs. 4) Adopt a Budget Amendment Ordinance, appropriating $291,617 for the True -Up, for the January and annual payment of the Office 365 licenses, and a 10% contingency offset with a reduction in the Technology Fund Ending Fund Balance. Executive Summary Every year the City is responsible for reporting to CompuCom additional Microsoft licenses that were used during the year, but were not part of the original agreement. This process is called the "True -Up" process. CompuCom generates a quote for the additional licenses identified. Also, the City added 1,100 Office 365 online licenses to the contract with CompuCom in an effort to reduce full licensing costs and gain functionality such as SharePoint Online, OneDrive, and OfficeWebApps. Background City of Palo Alto Page 1 On April 23, 2012, Council approved contract C12144913 with CompuCom Systems Inc. for a Microsoft Enterprise Agreement (MEA) (Staff Report: 2649) for 4,260 licenses for various Microsoft software programs. This agreement was initially executed by the County of Riverside, California (RIVCO-20800-(002-007)-12/12 and is extended to local agencies. The MEA covers all Microsoft licensing and maintenance at an annual cost of $210,617 and is valid through December 2016. Discussion As part of the True -Up process, the following additional Microsoft licenses were identified as being needed due to an increase in demand: Qty Description Cost 100 MS Office $37,645 100 Windows Professional $10,912 100 Core Cal Licenses $15,137 33 Windows Server $23,126 80 Visio $37,631 50 MS Project $45,851 6 Exchange Server $23,480 15 Windows Server Data Center $688 $194,470 These changes total $194,470, which will be paid as a one-time fee to CompuCom, and will true -up the actual number of licenses used by City staff through January 2015. The cost associated on this True -Up includes the license cost of these items as well as the Software Assurance for the remaining years on the agreement. Software Assurance provides the City with Planning Services to enable efficient deployment of licenses and solutions, in -person and online training for IT and end users as well as rights to new software releases during the term of the agreement at no additional cost. The City added 1,100 Office 365 online licenses to the contract with CompuCom, instead of purchasing 1,100 Enterprise Exchange Cal licenses in an effort to reduce full licensing costs and gain functionality. The monthly cost of the Office 365 licenses (January 2015) is $5,401, and the annual cost, starting in February 2015, is $64,746. By utilizing Office 365 online licensing, the City can gain many benefits such as: • Supporting the IT Department's Cloud -First strategy • Reducing the cost of Enterprise Exchange Cal licenses which get utilized as staff is added to all departments in the City to be able to access email, Staff would like to replace those licenses with online licenses. • Allowing staff to utilize collaboration features such as SharePoint Online, City of Palo Alto Page 2 OneDrive and OfficeWebApps. • Using these online licenses does not lock the City into using Office 365. As discussed during the Fiscal Year 2015 budget process, staff is evaluating which Cloud -based Communication and Productivity Suite will best meet the needs of the City. This evaluation and deployment of a new suite is anticipated to be finished by the end of Fiscal Year 2015. A contingency of ten percent ($27,000) is recommended to be allocated for Microsoft licensing in order to fund any unforeseen licensing purchase needs that occur. Resource Impact Funding in the amount of $291,617 will be appropriated from the Technology Fund Ending Fund Balance to pay for the true -up of licenses through January 2015, the addition of Office 365 licenses, and a contract contingency for additional unforeseen licensing needs. The addition of the Office 365 licenses will bring the total annual contract cost with CompuCom to $275,363, and the actions recommended in this memorandum will fund these costs in FY 2015. In order to fully fund these costs in FY 2016, a base budget adjustment will be recommended as part of the FY 2016 Budget process to increase the ongoing annual funding for the contract in the IT Department from $210,617 to $275,363. Environmental Review Approval of these contracts do not constitute a project under the California Environmental Quality Act (CEQA); therefore, no Environmental Assessment is required. Attachments: • City of Palo Alto True Up Quote (PDF) • City of Palo Alto Office 365 Add -On Quote (PDF) • Microsoft Enterprise Agreement (PDF) • BAO XXXX - Microsoft Licensing True -up (DOCX) • City of Palo Alto Signed Agreement 12.9.14 (PDF) City of Palo Alto Page 3 CompuCom - software quote Quoted by Miles Allarea, CompuCom Systems Inc., 7171 Forest Lane, Dallas, TX 75230 Phone Phone 916-934-6023 miles.allarea(a�compucom.com Please fax your POs to Client Assistance Center at 800-366-9994. You may call 800-400-9852, option 2, to check status on orders. Quoted to: city of Palo Alto Year 3 of 5 Revision #1 Date 9/8/2014 EA# 6849237 Important: Please provide the email address of the recipient designated to receive a CompuCom "order confirmation" Quantity Part # Description Unit Price Ext. Price True Up 100 269-12445 OfficeProPlus ALNG LicSAPk MVL Pltfrm $376.45 $ 37,645.00 100 FQC-02462 WinPro ALNG UpgrdSAPk MVL Pltfrm $109.12 $ 10,912.00 100 W06-01066 CoreCAL ALNG LicSAPk MVL Pltfrm UsrCAL $151.37 $ 15,137.00 33 P73-00203 WinSvrStd ALNG LicSAPk MVL $700.78 $ 23,125.74 80 D87-01057 VisioPro ALNG LicSAPk MVL $470.39 $ 37,631.20 50 H30-00237 PrjctPro ALNG LicSAPk MVL w1 PrjctSvrCAL $917.02 $ 45,851.00 6 395-02412 ExchgSvrEnt ALNG LicSAPk MVL $3,913.34 $ 23,480.04 Step Up 15 P71-01500 WinSvrDataCtrALNG SASU MVL WinSvrEnt 1Proc $45.84 $ 687.60 Product -total $ 194,469.58 Sub -Total $ 194,469.58 Tax Please write "electronic delivery only" on your PO $ - Shipping No Charge Total Onetime Payment $ 194,469.58 Prices good for 30 days Pass -Through Warranty and Other Rights. As a reseller, end -user warranties and liabilities (with respect to any third party hardware and software products provided by CompuCom) shall be provided as a pass -through from the manufacturer of such products. All software products are subject to the license agreement of the applicable software supplier, as provided with the software packaging or in the software at time of shipment. CompuCom provides no independent warranties, indemnities or liabilities. Public Sector Disclosure: CompuCom may receive incentive fees for public sector EA transactions. CompuCom - software quote Quoted by Miles Allarea, CompuCom 7171 Forest Lane, Dallas TX 75230 Phone 916-934-6023 miles.allarea(o�compucom.com Please fax your POs to Client Assistance Center at 800-366-9994. You may call 800-400-9852, option 2, to check status on orders. Quoted to: City of Palo Alto Office 365 Add On Revision #2 Date 12/1/2014 EA# 6849237 Important: Please provide the email address of the recipient designated to receive a CompuCom "order confirmation" Quantity Part # Description Unit Price Ext. Price 1 Months Payment 1,100 6U3-00003 O365GovE3 ShrdSvr ALNG SubsVL MVL AddOn touserCoreCALw/OPP $4.91 $ 5,401.00 Year 2 Annual Payment 1,100 6U3-00003 O365GovE3 ShrdSvr ALNG SubsVL MVL AddOn touserCoreCALw/OPP 58.86 $ 64,746.00 Year 3 Annual Payment 1,100 6U3-00003 O365GovE3 ShrdSvr ALNG SubsVL MVL AddOn touserCoreCALw/OPP 58.86 $ 64,746.00 Tax Please write Electronic Delivery Only on your order $0.00 Prices good for 30 days Pass -Through Warranty and Other Rights. As a reseller, end -user warranties and liabilities (with respect to any third party hardware and software products provided by CompuCom) shall be provided as a pass -through from the manufacturer of such products. All software products are subject to the license agreement of the applicable software supplier, as provided with the software packaging or in the software at time of shipment. City of Palo Alto (ID # 2649) City Council Staff Report Report Type: Consent Calendar Meeting Date: 4/23/2012 Summary Title: Award of MEA Contract to CompuCom Systemss Inc Title: Approval of Contract C12144913 with CompuCom Systems Inc. in the Amount of $210,617.28 per year for Microsoft Enterprise Agreement (MEA) From: City Manager Lead Department: IT Department Staff recommends that Council: 1. Approve and authorize the City Manager to execute a one year agreement with four one year follow on options of the Microsoft Enterprise Agreement with CompuCom Systems, Inc, using the Terms and Conditions set forth by the County of Riverside, California, Microsoft Enterprise Agreement (MEA) (RIVCO-20800-(002-007)-12/12, in the amount of $210,617.28 per year, for Microsoft Licensing and Maintenance. 2. Authorize the City Manager or his designee to negotiate and execute one or more change orders or amendments to the contract with CompuCom Systems, Inc., for additional but unforeseen licensing and maintenance needs which may develop during the term of this contract, the total value of which shall not exceed $105,308.64 Change orders or amendments may become necessary as the City moves forward with its move to Windows 7. There are new capabilities in this product that may require installation of new Microsoft software; such as Microsoft System Center Configuration Manager (SCCM) with Operating System Deployment (OSD), Microsoft System Center Virtual Machine Manager (SCVMM) and possibly System Center Operations Manager (SCOM). EXECUTIVE SUMMARY This is a support services contract for Microsoft Product Licensing and Maintenance as described in the original Riverside County MEA, dated November 28, 2011 and goes through December 31, 2016. The City of Palo Alto has used the Riverside MEA since 2005. This is a renewal of the City's MEA with a change of vendor providing the licenses and maintenance of the licenses. Riverside's sheer volume of licenses of Microsoft products used has allowed them to obtain deep discounts on these products. This discount is allowed to be passed on to other agencies within the state. The Riverside agreement has various third party April 23, 2012 (ID # 2649) Page 1 of 3 suppliers of Microsoft products. Because of this it was necessary for the City to send out a request for quotation to these vendors, so that the City would obtain the most advantageous quote for the City's needs. BACKGROUND The support services contract is for 4,260+/- licenses for the MEA software used by the City. Each employee uses at least four Microsoft licensed products to perform their daily duties. These licenses include, but are not limited to; Microsoft Office Suite, Microsoft Outlook, Microsoft Calendar, etc. The MEA allows the City to keep up with the most current version of Microsoft products with no additional cost to the City. Microsoft software is the standard for all City departments. Microsoft is used for word processing, spreadsheet processing, database creation and management, etc. Support services consist of product support, including telephone technical assistance and update subscription services providing Microsoft product upgrades, maintenance releases and patches as Microsoft makes them available. The telephone assistance to be provided will take the form of a 24 hours a day, 7 days a week support hotline available to only designated points of contact (POC) defined by the City; as well as enjoy access to Microsoft's on-line support system. CompuCom Systems, Inc. was chosen as the City's provider of Microsoft products as it is an approved vendor of Microsoft Products per the Riverside County MEA and a City issued RFQ. Summary of City Piggyback Process [AKA PAMC 2.360 (k)] Microsoft EA Proposed Length of Project 60 months Number of Solicitations Emailed to Riverside Contract Providers 3 Total Days to Respond to Bid 8 Pre -Bid Meeting N/A Number of Company Attendees at Pre -Bid Meeting N/A Number of Bids Received: 2 Bid Price Range From a low of $210,617.28 $225,676.86 per year. per year to a high of Staff has reviewed all bids submitted and recommends that the bid of $210,617.28 per year submitted by CompuCom Systems, Inc. be accepted.. Staff would utilize a standard contract negotiated by Riverside County on behalf of State and local government entities. The Riverside County contract RIVCO-20800-(002-007)-12/12 provides the City with a financial savings of approximately $1,719.12 per year or $8,595.60 over the term of the contract. April 23, 2012 (ID # 2649) Page 2 of 3 RESOURCE IMPACT The contract will be in the amount of $210,617.28 per year (plus applicable taxes) and the funds are included in the FY 2012 Applications Maintenance Internal Service Fund Budget. ENVIRONMENTAL ASSESSMENT Approval of this contract amendment does not constitute a project under California Environmental Quality Act (CEQA). Therefore, no Environmental Assessment is required. Attachments: • Attachment A: County of Riverside Bid Response (PDF) • Attachment B: County of Riverside MEA AWARD (PDF) • Attachment C: County of Riverside Reseller Agreements AR-M550N_20120223_012330 (P DF) • Attachment D: County of Riverside MEA RFQ PUARC-1200 (PDF) • Attachment E: County of Riverside MEA Program form (PDF) • Attachment F: County of Riverside MEA Agreement 03.27 (PDF) • Attachment G: CompuCom Bid (PDF) • Attachment H: Late renewal ammendment (PDF) • Attachement 1: Enrollment form (DOCX) • Attachement J: Product selection form (DOCX) • Attachment K: Signature_Page (PDF) Prepared By: Department Head: City Manager Approval: April 23, 2012 (ID # 2649) K.B. Paige, Senior Technologist Jonathan Reichental, Chief Information Officer Keene, City Man Page 3 of 3 PUARC-1200 RECAP Excel Format : Bid Tabulation By Vendor Version: 1 Bid: RFQ #PUARC-1200 - Microsoft Enterprise License End Date: Oct. 11, 2011 @ 1:30PM Softchoice Corporation PC Mall Gov, Inc. EnPointe Technologies Sales Inc Dell Marketing, L.P. CompuCom Systems, Inc. Insight Public Sector, Inc. Item Name Level D-7.5 Cost plus mark up % Level D-7.5 Cost plus mark up % Level D-7.5 Cost plus mark up % Level D-7.5 Cost plus mark up % Level D-7.5 Cost plus mark up % Level D-7.5 Cost plus mark up % Applications Added at Signing 2% Added at Signing 1.25% Added at Signing 0.25% Added at Signing 0.00% Added at Signing -1.50% Added at Signing -2.50% Applications True -ups 4% True -ups 1.25% True -ups 0.25% True -ups 0.00% True -ups -0.50% True -ups 0.00% Systems Added at Signing 2% Added at Signing 1.25% Added at Signing 0.25% Added at Signing 0.00% Added at Signing -1.50% Added at Signing -2.50% Systems True -ups 4% True -ups 1.25% True -ups 0.25% True -ups 0.00% True -ups -0.50% True -ups 0.00% Servers Added at Signing 2% Added at Signing 1.25% Added at Signing 0.25% Added at Signing 0.00% Added at Signing -1.50% Added at Signing -2.50% Servers True -ups 4% True -ups 1.25% True -ups 0.25% True -ups 0.00% True -ups -0.50% True -ups 0.00% New Additional Products (Non -Specific) Added at Signing 2% Added at Signing 1.25% Added at Signing 0.25% Added at Signing 0.00% Added at Signing -1.50% Added at Signing -2.50% New Additional Products (Non -Specific) True -ups 4% True -ups 1.25% True -ups 0.25% True -ups 0.00% True -ups -0.50% True -ups 0.00% SUMMARY: Recap Cost is provided at a level D-7.5 cost plus mark up percentage (%). Negative numbers represent a "below cost" percentage. The County has determined Insight Public Sector, Inc. to be the overall most responsive and responsible bidder for this commodity. The County reserves the right to reject any or all offers, to waive any discrepancy or technicality and to split or make the award in any manner determined by the County to be most advantageous to the County. DATE:11/9/2011 The County of Riverside Purchasing and Fleet Services PCS: Ines Mark PUARC-1200 2980 Washington St. Riverside, CA 92503 Ph:(951) 955-4944 1 of 1 Ph:(951) 955-4937 www.purchasing.co.riverside.ca.us email: imark@co.riverside.ca.us PURCHASING AND FLEET SERV'IC:ES ROBERT J. HOW DYSHELL. DIRECTOR. PtRCH. SLYG SUPPLY CENTR.AL _MAIL PREhTLNG NOTIFICATION TO BIDDERS REQUEST FOR QUOTE (RFQ) # PUARC-1200 Microsoft Enterprise License Riverside County Purchasing and Fleet Services would like to thank you for submitting a proposal for the above mentioned RFQ. The overall most responsive and responsible vendor: Insight Public Sector, Inc. The County has recommended that Insight Public Sector, Inc., be awarded a contract which is scheduled to be submitted for approval at the County of Riverside Board of Supervisors' meeting on November 8, 2011, Agenda No. 3.27 In addition the other five vendors will be listed for statewide contracts: CompuCom, Softchoice Corp, PC Mall Gov, EnPointe Technologies, and Dell Marketing The County appreciates your interest and your company's name will remain on our vendor's list for future bid considerations. Please visit the County of Riverside Purchasing Website for future opportunities at: www.purchasing.co.riverside.ca.us Ines Mark Procurement Contract Specialist NIGP CODE: 20800, 20811 2980 WASHINGTON STREET • RIVERSIDE, CA 92504-4647 • (951) 955-4937 • FAX (951) 955-4946 CONTRACT County of Riverside Vendor ID 0000026616 Pc Mall File 55327 Los Angeles CA 90074-5327 USA Tax Exempt? N Tax Exempt ID: Dispatch via Print Contract ID RIVCO-20800-005-12/12 Page 1 of 1 Contract Dates Currency 01/01/2012 to 12/31/2012 USD Rate Type Rate Date CRRNT PO Date Description: Microsoft Enterprise Agreement Contract Maximum 0.00 Allow Multicurrency PO Line # Vendor Item ID Item Desc 1 Minimum Order Maximum / Open Qty Amt Qty Amt Pricing Agreement: Computer software: Microsoft Enterprise Agreement software licenses for Riverside County ad surrounding Government Agencies within Califomia Pricing Date: Pricing Quantity: Quantity Type: RFQ#PUARC-1200F 11-11 /8/11 3.27 Reference Microsoft Master Agreement Number 01 E73134. 1.00 0.00 All terms, conditions, and specification of RFQ#PUARC-1200 are hereby included with full force and like effect as if set forth herein. PAYMENT TERMS - For calculating due dates for payment terms, the County will use either the date that the invoice is received by the County or the date the goods/services are received, which ever is later. In the event of contradiction, between the County's and the Seller's conditions, the County's conditions shall prevail. The County reserves the right to cancel the unexpended balance of this order at any time. Period of Performance: From January 1, 2012 through December 31, 2012. Year: 1 of 5, final year end date of December 31, 2016. �ii�� te= November 8, 2011 Ines Mark 9 V Procurement Contract Specialist County of Riverside- Purchasing and Fleet Services Voice: (951) 955-4944 Fax: (951) 955-4946 E-mail: imark@co.riverside.ca.us Final = The price Is final after adjustments Hard = Apply adjustments regardless of other adjustments Skip = Skip adjustments if any other adjustments have been applied 0.00 0.00 CONTRACT County of Riverside Vendor ID 0000015980 En Pointe Technologies PO Box 514429 Los Angeles CA 90051 USA Tax Exempt? N Tax Exempt ID: Line # Vendor Item ID Item Desc Pricing Agreement: Computer software: Microsoft Enterprise Agreement software licenses for Riverside County ad surrounding Government Agencies within California Pricing Date: Pricing Quantity: Quantity Type: Dispatch via Print Contract ID RIVCO-20800-004-12/12 Page 1 of 1 Contract Dates Currency 01/01/2012 to 12/31/2012 USD Rate Type Rate Date CRRNT PO Date Description: Microsoft Enterprise Agreement Contract Maximum 0.00 Allow Multicurrency PO Minimum Order Maximum / Open Qty Amt Qtv Amt 1.00 0.00 0.00 0.00 RF Q#P UARC-1200F 11-11 /8/11 3.27 Reference Microsoft Master Agreement Number 01 E73134. All terms, conditions, and specification of RFQ#PUARC-1200 are hereby included with full force and like effect as if set forth herein. PAYMENT TERMS - For calculating due dates for payment terms, the County will use either the date that the invoice is received by the County or the date the goods/services are received, which ever is later. In the event of contradiction, between the County's and the Seller's conditions, the County's conditions shall prevail. The County reserves the right to cancel the unexpended balance of this order at any time. Period of Performance: From January 1, 2012 through December 31, 2012. Year: 1 of 5, final year end date of December 31, 2016. . Boar date: November 8, 2011 Ines Mark Procurement Contract Specialist County of Riverside- Purchasing and Fleet Services Voice: (951) 955-4944 Fax: (951) 955-4946 E-mail: imark@co.riverside.ca.us Final = The price is final after adjustments Hard = Apply adjustments regardless of other adjustments Skip = Skip adjustments if any other adjustments have been applied An Aufihorixed S fhatibre A / CONTRACT County of Riverside Vendor ID 0000000033 Compucom Systems Inc 7171 Forest Lane Dallas TX 75230 USA Tax Exempt? N Tax Exempt ID: Line # Vendor Item ID Item Desc 1 Pricing Agreement: Computer software: Microsoft Enterprise Agreement software licenses for Riverside County ad surrounding Government Agencies within Califomia Pricing Date: Pricing Quantity: Quantity Type: Dispatch via Print Contract ID RIVCO-20800-002-12/12 Page 1 of 1 Contract Dates Currency 01/01/2012 to 12/31/2012 USD Rate Type Rate Date CRRNT PO Date Description: Microsoft Enterprise Agreement Contract Maximum 0.00 Allow Multicurrency PO Minimum Order Maximum / Open Qty Amt Qtv Amt 1.00 0.00 Reference Microsoft Master Agreement Number 01 E73134. All terms, conditions, and specification of RFQ#PUARC-1200 are hereby included with full force and like effect as if set forth herein. PAYMENT TERMS - For calculating due dates for payment terms, the County will use either the date that the invoice is received by the County or the date the goods/services are received, which ever is later. In the event of contradiction, between the County's and the Seller's conditions, the County's conditions shall prevail. The County reserves the right to cancel the unexpended balance of this order at any time. Period of Performance: From January 1, 2012 through December 31, 2012. Year: 1 of 5, final year end date of December 31, 2016. Bo appro a7 date: November 8, 2011 Ines Mark t'I, Procurement Contract Specialist County of Riverside- Purchasing and Fleet Services Voice: (951) 955-4944 Fax: (951) 955-4946 E-mail: imark@co.riverside.ca.us 0.00 0.00 Final = The price is final after adjustments Hard = Apply adjustments regardless of other adjustments Skip = Skip adjustments if any other adjustments have been applied Gt7ized 1g iature 1 CONTRACT County of Riverside Vendor ID 0000005200 Dell Marketing LP PO Box 910916 Pasadena CA 91110-0916 USA Tax Exempt? N Tax Exempt ID: Dispatch via Print Contract ID RIVCO-20800-003-12/12 Page 1 of 1 Contract Dates Currency 01/01/2012 to 12/31/2012 USD Rate Type Rate Date CRRNT PO Date Description: Microsoft Enterprise Agreement Contract Maximum 0.00 Allow Multicurrency PO Line # Vendor Item ID Item Desc Minimum Order Maximum / Open Qty Amt Qty Amt Pricing Agreement: Computer software: Microsoft Enterprise Agreement software licenses for Riverside County ad surrounding Government Agencies within California Pricing Date: Pricing Quantity: Quantity Type: 1.00 0.00 Reference Microsoft Master Agreement Number 01 E73134. All terms, conditions, and specification of RFQ#PUARC-1200 are hereby included with full force and like effect as if set forth herein. PAYMENT TERMS - For calculating due dates for payment terms, the County will use either the date that the invoice is received by the County or the date the goods/services are received, which ever is later. In the event of contradiction, between the County's and the Seller's conditions, the County's conditions shall prevail. The County reserves the right to cancel the unexpended balance of this order at any time. Period of Performance: From January 1, 2012 through December 31, 2012. Year: 1 of 5, final year end date of December 31, 2016. Bea ap Ir al date: November 8, 2011 Ines Mark Procurement Contract Specialist County of Riverside- Purchasing and Fleet Services Voice: (951) 955-4944 Fax: (951) 955-4946 E-mail: imark@co.riverside.ca.us Final = The price is final after adjustments Hard = Apply adjustments regardless of other adjustments Skip = Skip adjustments if any other adjustments have been applied A Izec A Itgnature il 0.00 0.00 CONTRACT County of Riverside Vendor ID 0000044732 Insight Public Sector Inc 6820 South Hari Avenue Tempe AZ 85283 USA Tax :Exempt?'N Tax =xempt ID: Line # Vendor Item. ID Item Dese 1 RI20800-00002 CORE CAL/Device-Computer software: Microsoft Enterprise Agreement_ software licenses for s Riverside County ad surrounding Government:- • Agencies within California (INSERT PRODUCT DESCRIPTION AND ITEMS#/SKU)iIDPTIONAL 3 OR 5 YEAR MUST BE REFERENCED Pricing Agreement: Pricing Date: Pricing Quantity: Quantity Type: Electronic Software Delivery RI20800-00003 :Pricing Agreement: Electronic Software CORE CAL/User-Computer software: Microsoft Enterprise Agreement software licenses for Riverside County ad surrounding Government Agencies within California ( ITEM DESCRIPTION AND [TEM#/SKU MUST BE;:>>,;? .: ENTERED)llOPTIONAL 3 OR Pricing -..Date. Pricing -Quantity..:: Quantity Type Delivery R120800-00004 ECAL/Device-Computer software: Microsoft Enterprise Agreement software licenses for. Riverside County ad surrounding Government Agencies within California ( ITEM DESCRIPTION AND ITEM#/SKU MUST BE ENTERED):IDPTIONAL 3 OR 5 YEAR MUST BE • Dispatch via Print Contract ID RIVCO-20800-007-+'12/12 Contract Dates Currency 11/08/2011 to 12,31/2012USD Agreement Description; Microsoft Enterprise Page 1 of 3 Rate Type Rate Date CRRNT PO Date Contract Maximum 6,000 000.00 Final = The price Is final after adjustments Hard : = Apply adjustments regardless of other adjustments .. Skip =:Skip adjustments if any other adjustments have been applied Minimum Order Qty • .Amt 2.fl0:. 0.00. : 1.00':''i ut A nze Maximum / ©pen Oty Amt 0:..00 0.00 0! 0.00 0.00 • 'CONTRACT County of Riverside USA. Vendor ID 0000044:732 InsightPublic Sector Inc 6820 South Hari Avenue Tempe AZ 85283: USA Tax :Exempt? 'N. Teic Exempt :f en .ft Vendor Item ID .Item-Desc: Pricing Agreement Pricing Date Pricing .Quantity;_ Quantity TYpe Efectron'Sofware Delivery_ 4 81208004)0005 ECAtiiUser-Computer software Microsoft • Enterprise Agreement ;software licenses for Riverside County ad surrounding Government- Agencies within California ( ITEM DESCRIPTION_.AND ITEN{#/SKU MUST BE ENTERED)tI PTlONAL 3 OR 5 YEAR MUST BE .0e1ChigAgieithisifit: Pricing Date: Pricing Quantity: Quantity Type: •EiectrdriieSoTtwareDelivery 5 ;R120800-00006 ADDTIONAL PRODUCTS (DESKTOP) -Devine -Compute' rsoftware: Microsoft Enterprise Agreement software _ licenses :for' Riverside Cnuntyad surrounding=::Govemiiren€:: Agencies within'. Ciufon ta:.(INSERT PRODUCT DESCRIPTION At4D ITEMS#ISKIJ}OPTtONAL.3._ OR 5' YEAR?. ;£dicing: Agreement- : Pricing Date: :Pricing-Ouantiiy_ Quantity Type, Electronic Software Delivery 6 ` :RI20800.00007 ADDITIONAL PRODUCTS (SERVERS); Device -Compute rsoftware:Microsoft Enterprise Agreement. software Iicensesfor Riverside.Countyad surrounding Government Agencies within California (INSERT PRODUCT DESCRIPTION AND tTEMS#.SKU) 3 or'.5. YEARS? Final=The.price is final -after adjustments Hard = Apply adjustments regardless of other adjustments Skip = Skip adjustments if any otheradjustments have been applied sfaaitch ria; Print Contract • ID RIVCO-20800-007-12112 Page 2 of 3 Contract Dates Currency 11" 081 011 to 1213112012:U82. RateType Rate Date CRRNT PO Date Descriptiam:; :Microsoft: Enterprise Agreernent . Contract Maximum 6,000,000.00 Nritltrouan.:Order Qty Amt 1:.00 .00, Maximum-! Open Qty - Amt O 00 0 00' '0,1•00" CONTRACT County of Riverside USA Vendor ID 000(04:4732 `Insight. Public Sector Inc 6820 South Hari Avenue Tempe AZ.85283, USA Tax Exemlic? : DT Tai :: xemst=' fl : lne ft Vendorltem ID Ifeni Desc Pricing Agreement: Pricing Date: Pricing Quantity QuantityType; Etecironic-Sofbuare:'Delivery. E?isgatch via . Pr nit... Contract ID Page RIVCO-20800-007-12112 3. of 3 Contract Dates ,: Currency ' Rats Type Rate Date 1110 1 'to 12/31/2012.USD .:CRRNT pp Date Description: ConiractMaximum Microsoft Enterprise Agreement:., '6000,000:44 Miriiinum Order Reference Microsoft MasterAgreoment Number 01 E73134.. . Alt terms, conditions; acid speeilicat Ofl of RFQ#PUARC-1200 are hereby inciuded with full force -and lice effectas if set forth herein. PAYMENT TERMS For s calculating due'datefor payrnentterms, the County will use either.the dale ihat:fhb invoice is receivedby the County orthe date the goods/services are received, which, ever is tater to the event of contradiction, between the County s and the Sellers;conditions, the County's conditions shall: prevail:. gh pe The County.Tesenresthe ri t to cancet.the ,unex nded liaiance of this eider at,any:tGne: License Period of Performance ; Frorri.January 1, 2012 through December 31„:2012., Year: 1 of 5; final year end :date of:December 31, 2016. Not to Exceed: Maximurn contract amount 8'6;000 000.00 B d a ai date: November 8, 201 Inesl+.ark Procurement Contract Specialist County of Riverside P.urchasmg and; Fleet prices: Voice: (95i) 9554944 Fax: .(051 ) 955-4946 E rrra i_.imarklco.riverside ca.as Sign: 4 Name: David£Yistal Titie Vide -President_ General Manager Company':'insight Public Sector, Inc. Address: 6820:S..Harl Ave... Tempe,.AZ 85283 .. . ... ..- Voice: Fax: 800467=4448.x30T1 480,760-9488 E-mail: erica:faichetii@insightcorn Final = The priceis final -after adjustments - Hard: =Apply -adjustments regardless of other adjustments Skip = Skip adjustments if -any other adjustments have been applied Maximum 1.Open Qty Amts CONTRACT County of Riverside Vendor ID 0000044719 Softchoice Corporation 314 W. Superior, Suite 402 Chicago IL 60654 USA Tax Exempt? N Tax Exempt ID: Dispatch via Print Contract ID RIVCO-20800-006-12/12 Page 1 of 1 Contract Dates Currency 01/01/2012 to 12/31/2012 USD Rate Type Rate Date CRRNT PO Date Description: Microsoft Enterprise Agreement Contract Maximum 0.00 Allow Multicurrency PO Line # Vendor Item ID Item Desc 1 Minimum Order Maximum / Open Qty Amt Qtv Amt Pricing Agreement: Computer software: Microsoft Enterprise Agreement software licenses for Riverside County ad surrounding Government Agencies within California Pricing Date: Pricing Quantity: Quantity Type: 1.00 0.00 Reference Microsoft Master Agreement Number 01 E73134. All terms, conditions, and specification of RFQ#PUARC-1200 are hereby included with full force and like effect as if set forth herein. PAYMENT TERMS - For calculating due dates for payment terms, the County will use either the date that the invoice is received by the County or the date the goods/services are received, which ever is later. In the event of contradiction, between the County's and the Seller's conditions, the County's conditions shall prevail. The County reserves the right to cancel the unexpended balance of this order at any time. Period of Performance: From January 1, 2012 through December 31, 2012. Year: 1 of 5, final year end date of December 31, 2016. B �p o5 tail date: November 8, 2011 Jw� Ines Mark t. Procurement Contract Specialist County of Riverside- Purchasing and Fleet Services Voice: (951) 955-4944 Fax: (951) 955-4946 E-mail: imark@co.riverside.ca.us 0.00 0.00 Final = The price is final after adjustments Hard = Apply adjustments regardless of other adjustments Skip = Skip adjustments if any other adjustments have been applied Authorized Si nature County of Riverside Request for Quote # PUARC-1200 Purchasing & Fleet Services Closing Date: 10/11/2011@1:30 P.M. REQUEST FOR QUOTE # PUARC-1200 Microsoft Enterprise License By: Ines Mark Riverside County Purchasing & Fleet Services 2980 Washington Street Riverside, CA 92504-4647 Telephone: (951) 955-4937 Email: imark@co.riverside.ca.us NIGP Code(s):20800, 20811 Form # 116-101 RFQ Public Purchase Revision 04/12/11 1 County of Riverside Request for Quote # PUARC-1200 Purchasing & Fleet Services Closing Date: 10/11/2011@1:30 P.M. INSTRUCTIONS TO BIDDERS L Vendor Registration — Unless stated elsewhere in this document, vendor must register online at www.Purchasing.co.riverside.ca.us and http://http://www.publicpurchase.com//with all current Vendor information, to be registered on the County's database. II. For all RFQ's Riverside County's Purchasing website will post a letter of notification on its website, and will provide a direct link to PublicPurchase.com. III. Format - Use the electronic format provided by PublicPurchase.com. If submitting more than one bid, separate the bid documents. IV. Pricing/Deliverv/Terms/Tax - All pricing shall be quoted F.O.B. destination, (e.g., cash terms less than 20 days should be considered net) excluding applicable tax, which is a separate line item. The County reserves the right to designate method of freight. The County pays California Sales Tax and is exempt from Federal excise tax. In the event of an extension error, the unit price shall prevail. V. Other Terms and Conditions - The terms and conditions as indicated in this document and/or attached are hereby included with full force and like effect as if set forth herein. Copies of the applicable Terms and Conditions may be obtained by contacting Riverside County Purchasing at the number shown above and requesting a copy be faxed or mailed to you. VI. Period of Firm Pricing - Unless stated otherwise elsewhere in this document, prices shall be firm for 90 days after the closing date, and prior to an award being made. VII. Specification/Changes - Wherever brand names are used, the words "or equal" shall be considered to appear and be a part of the specification. If you are quoting another make or model, cross out our nomenclature and insert yours. If no make or model is stipulated, insert yours. Attach applicable specifications and/or brochures. Variations in manufacturers, design, etc., may be acceptable, bidders are encouraged to offer them as alternatives; however, the County reserves the right to reject those alternatives as non -responsive. VIII. Recycled Material - Wherever possible, the County of Riverside is looking for items made from, or containing in part, recycled material. Bidders are encouraged to bid items containing recycled material as an alternative for the items specified; however, the County reserves the right to reject those alternatives as non -responsive. IX. Method of Award - The County reserves the right to reject any or all offers, to waive any discrepancy or technicality and to split or make the award in any manner determined by the County to be most advantageous to the County. The County recognizes that prices are only one of several criteria to be used in judging an offer and the County is not legally bound to accept the lowest offer. X. Return of Bid/Closing Date/Return to - The bid response shall be submitted electronically to PublicPurchase.com by 1:30 p.m. on the closing date listed above. Bid responses not received by County Purchasing by the closing date and time indicated above will not be accepted. The County will not be responsible for and will not except late bids due to slow internet connection, or incomplete transmissions. XI Local Preference - The County of Riverside has adopted a local preference program for those bidders located within the County of Riverside. A five percent (5%) price preference may be applied to the total bid price during evaluation of the bid responses. To qualify as a local business, the business must have fixed offices within the geographical boundaries of Riverside County and must credit all sales taxes paid resulting from this RFQ to that Riverside County location. or XII. Disabled Veteran Business Enterprise Preference - The County of Riverside has implemented a Disabled Veteran Owned Business preference policy. A three percent (3%) preference shall be applied to the total bid price of all quotes/bids/proposals received by the County from certified disabled veterans owned businesses. If the bid is submitted by a non -Disabled Veteran owned business, but lists subcontractors that are identified and qualified as Disabled Owned Business, the total bid price will be adjusted by 3% of the value of that subcontractor's portion of the bid IF CHECKED, THE FOLLOWING DOCUMENTS HEREBY MADE PART OF THIS RFQ X APPENDIX "A" #116-110 X #116-260 X #116-200 #116-230 #116-240 PLANS/DRAWINGS SAMPLES X EXHIBITS (A) X ATTACHMENT (Product List) Special Conditions/Response Local Business Qualification Affidavit #116-130 Equipment Information Sheet #116-310 Boilerplate Contract IF CHECKED, THE FOLLOWING GENERAL CONDITIONS ARE INCLUDED WITH FULL FORCE AND LIKE EFFECT AS IF SET FORTH HEREIN General Conditions X #116-210 General Conditions Materials and/or Services General Conditions - Equipment #116-220 General Conditions - Public Works General Conditions - Personal/Professional Service To access any of these General Conditions go to www.purchasing.co.riverside.ca.us, located in Vendor Registration/Bidding Opportunities. If an addendum is issued for this procurement, it will be the vendor's responsibility to retrieve all applicable addendum(s) from the Public Purchase website. Form # 116-101 RFQ Public Purchase Revision 04/12/11 2 County of Riverside Request for Quote # PUARC-1200 Purchasing & Fleet Services Closing Date: 10/11/2011@1:30 P.M. APPENDIX A 1.0 INFORMATION 1.1 LIQUIDATED DAMAGES - It is agreed by the parties that time is of the essence, and in the event complete delivery is not made within the schedule set by the County, and pursuant to the bid specifications, damage will be sustained by the County, it will be impractical, and extremely difficult to ascertain, and determine the actual damage sustained. Therefore, it is agreed that the successful bidder shall pay to the County of Riverside, as fixed and liquidated damages, and not as penalty, a dollar sum in the amount of $ per calendar day for each and every calendar day that a delay in making delivery in excess of the time or times specified. It is further agreed that in the event such damages are sustained by the County, the County shall deduct the amount from any payment due or that may become due to the vendor under the contract. 1.2 "Electronic submission hereof is certification that the Bidder has read and understands the terms and conditions hereof, and that the Bidder's principal is fully bound and committed." All County terms and conditions are found at www.purchasing.co.riverside.ca.us. Bidders must acknowledge the applicable terms and conditions that are checked at the bottom of page 2 of this document. 1.3 CASH DISCOUNT_% from receipt of good or invoice, whichever is later. (terms less than 20 days will be considered net) Cash discount shall be applied to grand total. 1.4 Delivery: calendar days after receipt of order. 1.5 Please Check: Disabled Veteran Local Business — if checked, the above signer certifies that the above business is located within the geographical boundaries of Riverside County and that all sales taxes generated based on this RFQ will be credited to that location in Riverside County. If claiming Local Preference please submit form 116-260. 1.6 If Bidder experiences technical issue with the online bidding process, Bidder must contact the Procurement Contract Specialist (PCS) for further bid submission instructions. Bidder must contact the appropriate PCS a minimum of 1 hour prior to bid close time of 1:30 PM. A. Wherever these words occur in this RFQ, they shall have the following meaning: B. "RFQ" shall mean Request for Quote. C. "Addendum" shall mean an amendment or modification to the RFQ (Request for Quote). D. "Bid" shall mean the proposal submitted by a Bidder on the Bid Form consistent with the Instructions to Bidders, to complete the Work for a specified sum of money and within a specified period of time. E. "Bidder" shall mean an individual, firm, partnership, or corporation that submits a qualified Bid for the Work, either directly or through a duly authorized representative. F. "Contractor" shall mean any employee, agent, or representative of the contract company used in conjunction with the performance of the contract. For the purposes of this RFQ, Contractor and Bidder are used interchangeably. Form # 116-101 RFQ Public Purchase Revision 04/12/11 3 County of Riverside Request for Quote # PUARC-1200 Purchasing & Fleet Services Closing Date: 10/11/2011@1:30 P.M. G. "COUNTY" shall mean the County of Riverside and its agencies. H. "CCISDA" shall mean the California County Information Services Directors Association I. "MISAC" shall mean the Municipal Information Systems Association J. "LAR" shall mean the Large Account Resellers K. "EA" shall mean Enterprise Agreement L. "Qualified Device" shall mean any personal desktop computer, portal computer, workstation, or similar device that is used by of for the benefit of Enrolled Affiliate's Enterprise. It does not include: (1) any computer that is designated as a server and not used as a personal computer, (2) any Industry Device, (3) any device running an embedded operating system (e.g., Windows Phone 7) that does not access a virtual desktop infrastructure, or (4) any device that is not managed and/or controlled either directly or indirectly by Enrolled Affiliate's Enterprise. Enrolled Affiliate may include as a Qualified Device any device which would be excluded above (e.g., Industry Device). M. "MDOP" shall mean Microsoft Desktop Optimization Platform N. "MSDN" shall mean Microsoft Developer Network 3.0 PURPOSE/BACKGROUND 3.1 Purpose a) The County of Riverside is soliciting bids for a consortia approach to collectively enter into a Microsoft Enterprise Agreement and Select program in order to utilize the desktop volumes to achieve the best possible price as detailed in this RFQ. Microsoft has demonstrated flexibility in dealing with CCISDA\MISAC to accommodate government issues and concerns to offer a customized Enterprise Agreement that will work for all government agencies within the state of California. b) The purpose of this RFQ is to seek both renewal pricing for those under the current Microsoft Agreement from any authorized LAR within the State of California plus allow new enrollments to take place based on combined volumes of those staying with the old agreement, those renewing in this new contract, and those joining into the new contract for the first time. c) The intent of this RFQ is to award to no more than five (5) Microsoft authorized and responsible Large Account Resellers (LAR) in the State of California that meets the terms and conditions of this RFQ. The LAR(s) will serve as the administrator of this agreement and will collect all dollars directly from those jurisdictions enrolled under this awarded contract. 3.2 Background a) Since June 19, 2001, The California County Information Services Directors Association (CCISDA) and the Municipal Information Systems Association (MISAC) of California have been participating in a state-wide Microsoft Enterprise Agreement (EA) and Select program. The County of Riverside will continue to administer this award, to include participation from CCISDA and MISAC. Form # 116-101 RFQ Public Purchase Revision 04/12/11 4 County of Riverside Request for Quote # PUARC-1200 Purchasing & Fleet Services Closing Date: 10/11/2011@1:30 P.M. b) The California County Information Services Directors Association (CCISDA) is the official organization of the county information technology directors in the state of California. They represent the 58 California counties in the area of information technology and county government. c) The Municipal Information Systems Association (MISAC) of California is a statewide organization of approximately 150 member agencies. They represent the 475 Cities and Special Districts in the state of California in the area of information technology and county government. d) Current participation in this successful contract has surpassed 488,000 desktops and over 460 separate enrollments to this Microsoft Enterprise Agreement. The current Large Account Resellers (LAR) have worked with each of these entities to explain the Microsoft Enterprise Agreement, helped them make decisions about their licensing needs, provided enrollment assistance, and coached them during annual EA requirements including true -ups and annual payments. The awarded LAR(s) will be required to deliver this same level of service, as well as provide continuing education to enrollees on other services and benefits provided to participants in the EA. e) The LAR(s) must allow CCISDA/MISAC members with the opportunity to continue to enroll in the Enterprise Agreement after the open enroll period at a highly discounted price based on cumulative volumes of desktops enrolled under the new and existing contracts. 1) In addition, many government entities could not purchase from a sole LAR due to local preference purchasing requirements. The intent of this RFQ is to award to multiple Large Account Resellers (LARs) under a single agreement and to get credit for volumes under the existing contract and for those that want to change to the renewal contract or for those governments enrolling for the first time. g) Many counties do not upgrade their software on their desktops on an annual basis and most do so every two to three years. As a result, most may not benefit from Software Assurance under the Select Program nor can justify an Enterprise Agreement. Therefore, to make an Enterprise Agreement a tool for government, it must be cost effective, ease licensing management, and encourage government to stay current with new software versions to take advantage of the latest technological improvements that could benefit employee productivity. An additional benefit can be realized through other offerings made available to EA participants. When such offerings are introduced, it is imperative that the LAR make the offering known to the agency in order for them to obtain the most out of their EA investment. 4.0 PRODUCT LINE 4.1 Enterprise Agreement Program Products The products offered under the Enterprise Agreement (EA) may be purchased individually or in total as follows: 4.2 Enterprise Products a) The Enterprise Agreement offers California County Governments access to the most recent releases of the Desktop Professional Platform products. The Enterprise Agreement Desktop Platform products are: i. Microsoft Windows 7 Enterprise Edition with MDOP ii. Microsoft Office Professional Plus 2010 iii. Microsoft Core Client Access License Suite or Enterprise Client Access License Suite Form # 116-101 RFQ Public Purchase Revision 04/12/11 5 County of Riverside Request for Quote # PUARC-1200 Purchasing & Fleet Services Closing Date: 10/11/2011@1:30 P.M. b) Government entities who enroll in the Professional or Enterprise Platform (the Windows 7 Enterprise Edition operating system upgrade, Office Professional Plus 2010, and Core CAL Suite or Enterprise CAL Suite) receive a platform discount on top of their already discounted enterprise software product. c) Government entities not adding products at signing may still add additional products to their enrollment at any time with License & Software Assurance (pro -rated annually for the remaining term of their enrollment). d) For full product listing see excel attachment "PUARC-1200 Product listing." 4.3 Additional Products and Services a) Nearly all other available Microsoft software titles are obtainable as additional products. They provide the same License & Software Assurance coverage as enterprise products, but do not require an enterprise -wide commitment. For products licensed at signing, payments can be spread throughout enrollment years in the same way that enterprise product payments are annualized. Also, additional products at signing will have corresponding pricing for the use of the True Up ordering process, enabling an annual consolidation of ordering. Government entities not adding products at signing may still add additional products to their enrollment at any time with License & Software Assurance (pro- rated for the remaining term of their enrollment). b) Premier Services are available through the Riverside Master Agreement for as long as it is offered as products under the Microsoft Enterprise Agreement. c) Examples of software products available as additional products include Office Visio, Microsoft Project, Windows servers, Exchange servers, Microsoft Office SharePoint Servers, SQL Servers, Visual Studio Team Edition (w/ MSDN), MapPoint Web Service, and many others. d) A complete list of additional products is available on the Microsoft Product List at: http://www.microsoftvolumelicensing.com/userights/PLaspx e) To learn more about Product Use Rights, visit: http://www.microsoftvolumelicensing.com/userights/PUR.aspx 4.5 Customized Components: a) The awarded Large Account Reseller(s) as part of the contract must be willing to accept the administration of the contract. California government entities will enroll by Agency (understanding that all desktops in a department must be committed unless the desktop has an asset tag where it has been paid and owned by another government jurisdiction). b) Commitment for each government entity is at least 25 desktops in the entire organization. Organizations under 25 qualified workstations are required to combine enrollments with other local government entities for a total of at least 25 qualified workstations s to qualify. The government entity who handles the enrollment for multiple jurisdictions will also be responsible for distributing license confirmations. c) The LAR's are required to provide annual reports of qualified workstation counts by enrollment and ask for desktop true -ups for net additional desktops added during each contract year. The customer is expected to true up additional products added to during past year. Quarterly reports of licenses purchased under the Select agreement (provided by this contract) must also be provided including product and version number. It is preferred that this capability be provided though the Internet. Form # 116-101 RFQ Public Purchase Revision 04/12/11 6 County of Riverside Request for Quote # PUARC-1200 Purchasing & Fleet Services Closing Date: 10/11/2011@1:30 P.M. d) All products covered under the EA automatically include Software Assurance for either the full thirty- six (36) or sixty (60) month contract period options. During the contract period, participating government entities will be entitled to all version upgrades at no additional charge. And on termination of the contract, participating organizations will own the most current version of covered products as of the contract termination date, whether the version is installed or not. e) During the EA each participant will be required (but not limited) to count total qualified workstations in their organization which will be reported to the LAR. Other counts such as True -Up of additional products and additional of 'not -at -signing' products may be required. f) The Enterprise Agreement term is sixty (60) calendar months from the date of acceptance, or an optional thirty-six (36) months if requested. Enrollment for this program will be open until the expiration of the Master Agreement. While the number of net desktops in each organization may increase annually, there could be certain economic issues (such as discontinuing a government service due to funding) or political shifts (such as County Courts becoming a State Agency or a government entity filing for bankruptcy) that could impact desktop counts. Microsoft will deal with decreases in qualified workstation counts on an individual basis without penalty to other enrollments. EA participants that terminate for cause, will own licenses equal to the portion of the total contract period for which they participated. Participants terminating prior to year 2 shall own licenses for 1/3 of the total desktops enrolled. Participants terminating prior to year 3 shall own licenses for 2/3 of the total desktops enrolled. The licenses shall be for the current version of the products at the time of termination. If any one County/Department terminates the enterprise agreement, it shall have no bearing or impact on the others enrolled. g) EA enrollees receive perpetual license to the most current version of the software covered under this agreement upon initial payment. By participating under the EA, enrollees immediately become current and stay current. Net new desktops added during the contract period immediately have the right to install the most current versions of the products covered under the EA and the "true -up" payment must be made at the beginning of the next contract year. h) All new software covered and purchased under the EA is to be delivered to the COUNTY electronically, unless explicit instructions are communicated that delivery method would be otherwise. 5.0 TIMELINE DATES: 1. RELEASE OF REQUEST FOR QUOTATION September 20, 2011 2. DEADLINE FOR SUBMISSION OF QUESTIONS Bidders must submit their questions online at PublicPurchase.com. All questions submitted are within the correct RFQ located on PublicPurchase.com. Must be submitted by: Date: October 3, 2011 Time: 1:30 PM 3. DEADLINE FOR QUOTATION SUBMITTAL Bid results are posted on PublicPurchase.com October 11, 2011 at 1:30 PM 4. TENTATIVE DATE FOR AWARDING CONTRACT 5-90 days, contingent upon lowest bidder meeting all of the bid specifications. Form # 116-101 RFQ Public Purchase Revision 04/12/11 7 County of Riverside Purchasing & Fleet Services Request for Quote # PUARC-1200 Closing Date: 10/11/2011@1:30 P.M. 6.0 PERIOD OF PERFORMANCE The period of performance shall be for 5 year(s), with each year renewable in one-year increments, with the completion date of 12/31/17, with no obligation by the County of Riverside to purchase any specified amount of services. 7.0 GENERAL REQUIREMENTS Procedures for Submitting Quotations All quotations must be submitted in accordance with the standards and specifications contained within this Request for Quote (RFQ). The County reserves the right to waive, at its discretion, any irregularity, which the County deems reasonably correctable or otherwise not warranting rejection of the quotation. The County shall not pay any costs incurred or associated in the preparation of this or any quotation or for participation in the procurement process. Quotes must be specific unto themselves. For example, "See Enclosed Manual" will not be considered an acceptable quotation. Receipt of all addenda, if any, must be acknowledged in the quotation. Late quotations will not be accepted. Postmarks will not be accepted in lieu of this requirement. Quotations submitted to any other County office will be rejected. 8.0 METHOD OF AWARD (Specifications) Quotations will be evaluated based on relevant factors, including but not limited to the following: a. Lowest overall purchase price b. Adherence to specifications as detailed in this RFQ (PUARC-1200) c. Prompt payment discounts on 30 days or less d. Warranties e. All associated delivery costs f. Delivery date g. Product acceptability h. Service/Customer Support 9.0 EVALUATION PROCESS All quotations will be given thorough review. All contacts during the review selection phase will be only through the Purchasing Department. Attempts by the Bidder to contact any other County representative may result in disqualification of the Bidder. The County recognizes that prices are only one of several criteria to be used in judging an offer, and the County is not legally bound to accept the lowest offer. Form # 116-101 RFQ Public Purchase Revision 04/12/11 8 County of Riverside Purchasing & Fleet Services Request for Quote # PUARC-1200 Closing Date: 10/11/2011@1:30 P.M. 10.0 INTERPRETATION OF RFQ The Contractor must make careful examination and understand all of the requirements, specifications, and conditions stated in the RFQ. If any Contractor planning to submit a quote finds discrepancies in or omissions from the RFQ, or is in doubt as to the meaning, a written request for interpretation or correction must be given to the County. Any changes to the RFQ will be made only by written addendum and may be posted on the Purchasing website at www.purchasing.co.riverside.ca.us and PublicPurchase.com. The County is not responsible for any other explanations or interpretations. If any provision in this agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way. All notices regarding this procurement may be posted on the County's purchasing website at www.purchasing.co.riverside.ca.us and PublicPurchase.com. 11.0 CANCELLATION OF PROCUREMENT PROCESS The County may cancel the procurement process at any time. All quotations become the property of the County. All information submitted in the quotation becomes "public record" as defined by the State of California upon completion of the procurement process. If any proprietary information is contained in or attached to the quote, it must be clearly identified by the Bidder; otherwise, the Bidder agrees that all documents provided may be released to the public after bid award. The County reserves the right to withdraw the Request for Quote (RFQ), to reject a specific quote for noncompliance within the RFQ provisions, or not award a bid at any time because of unforeseen circumstances or if it is determined to be in the best interest of the County. 12.0 COMPENSATION 12.1 The County shall pay the awarded bidder for equipment and services performed, after the equipment are installed and tested to the satisfaction of the County. Expenses incurred and compensation shall be paid in accordance with an invoice submitted to County by awarded bidder. The County shall pay the acceptable invoice within thirty -(30) working days from the date of receipt of the invoice, or the goods/services are received, whichever is later. 12.2 No price increases will be permitted during the first year of the award. All price decreases (for example, if CONTRACTOR offers lower prices to another governmental entity) will automatically be extended to the County. The County requires written proof of cost increases prior to any approved price adjustment. After the first year of the award, a minimum of 30 -days advance written notice is required for consideration and approval by County. No retroactive price adjustments will be considered. The net dollar amount of profit will remain firm during the period of the Agreement. Annual increases shall not exceed the Consumer Price Index- All Consumers, All Items - Greater Los Angeles, Riverside, and Orange County areas (Microsoft Enterprise License Agreement) and be subject to satisfactory performance review by the County and approved (if needed) for budget funding by the Board of Supervisors. The CONTRACTOR agrees to extend the same pricing, terms, and conditions as stated in this Agreement to every political entity, special district, and related non-profit entity in Riverside County. It is understood that other entities shall make purchases in their own name, make direct payment, and be liable directly to the CONTRACTOR; and County shall in no way be responsible to CONTRACTOR for other entities' purchases. Form # 116-101 RFQ Public Purchase Revision 04/12/11 9 County of Riverside Purchasing & Fleet Services Request for Quote # PUARC-1200 Closing Date: 10/11/2011@1:30 P.M. Exhibit A Software Assurance Benefits: The Enterprise Agreement includes Software Assurance, Microsoft's enhanced maintenance program that helps customers get the most out of their software investments. Access to valuable benefits such as training, deployment planning, software upgrades, and product support can help increase the productivity of the entire organization. Awarded LAR(s) will continue to educate and assist participants on what these benefits are and how participants can take full advantage of them. Here are details on Software Assurance benefits throughout each phase of software management. Stage Benefit Description Planning Stage New Version Rights With Software Assurance, you receive new versions of licensed software released during the term of your agreement to deploy at your own pace as they become available. You can reduce the costs associated with acquiring new version releases and immediately take advantage of the latest technology. Spread Payments You can make payments annually, instead of making one up -front payment. This helps you to reduce initial costs and forecast annual software budget requirements up to three years in advance. Deployment Stage Packaged Services: Information Work Solution Services These one- to three-day partner -managed workshops help IT teams learn how desktop applications assist support deployment, security, and infrastructure business goals like project prioritization. You also learn how to implement high -value projects in the IT environment to maintain or accelerate productivity. Workshops include Information Work Business Value Discovery and Information Work Architectural Design Session. Microsoft Windows Pre- installation Environment (WinPE) This is a tool based on the Windows Server® 2003 operating system and the Windows XP Professional operating system that allows IT staff to build custom solutions that speed up deployment through automation, so they spend less time and effort keeping desktops updated. WinPE can run Windows setup, scripts, and imaging applications. Using Stage Training Vouchers You will receive training vouchers for training on select courses from Microsoft Certified Partners for Learning Solutions (CPLS), the premier authorized training channel for delivering learning products and services on Microsoft technology. Taking training from Microsoft CPLSs helps you prepare for deployment, enable smoother migration, and stay up- to-date with the latest Microsoft technologies, giving you the competitive advantage you need. Form # 116-101 RFQ Public Purchase Revision 04/12/11 10 County of Riverside Purchasing & Fleet Services Request for Quote # PUARC-1200 Closing Date: 10/11/2011@1:30 P.M. Exhibit A Cont' Software Assurance Benefits: eLearning Courses Microsoft's eLearning provides your employees access to individual, on -demand Microsoft software courses. eLearning can be delivered online or offline and includes simulations, hands-on exercises, and learning assessments. Home Use Program The Home Use Program increases employee productivity and maximizes the value of your Microsoft Office investment because with it, your employees can use Office desktop programs for work or personal needs. Microsoft Windows 7 Enterprise Edition The Windows 7 Enterprise Edition is optimized for large organizations and includes features such as data protection that safeguard lost or stolen PCs, application compatibility, and the ability to deploy a single image in multiple locations around the world (per availability of Windows Vista), helping you to lower your deployment and management costs. Microsoft Virtual PC Express Migrate legacy applications during an operating system upgrade in a safe, protected way. Microsoft Virtual PC Express supports a single instance of a virtual operating system (in comparison, Virtual PC 2004 supports multiple instances). Virtual PC Express will be made available to our Software Assurance customers in early 2006, ahead of the Windows Vista Enterprise Edition. Maintenance Stage 24 X 7 Problem Resolution Support With Software Assurance, you can be continuously connected with Microsoft for your support needs. You can select the right level of help when you need it with business -critical 24 hours a day, 7 days a week phone support for all Microsoft server products, Windows, and the 2007 Microsoft Office system, in addition to unlimited Web support. Form # 116-101 RFQ Public Purchase Revision 04/12/11 11 County of Riverside Purchasing & Fleet Services Request for Quote # PUARC-1200 Closing Date: 10/11/2011@1:30 P.M. Exhibit A Cont' Software Assurance Benefits: Unlimited Web Support Complement your business -critical 24 hours a day, 7 days a week phone support with unlimited Web support during business hours, and decide which level of support is best for the issue. This helps you lower your total cost of support and ownership through time and gives you a choice for how to use your direct connection to Microsoft. TechNet Plus Subscription with Two Support Calls/Year IT professionals have access to TechNet Plus subscription media, featuring resources such as the Microsoft Knowledge Base, software updates, utilities, technical training, and how-to articles to help them succeed. They also have access to additional premium TechNet Plus benefits, including evaluation software without time limits, pre-release versions of Microsoft products, two technical support incidents per year, and TechNet Plus Subscriber Online Services. IT professionals can also access TechNet Managed Newsgroups with more than 100 IT -related newsgroups, where they can post technical questions and are guaranteed responses by the next business day. "Cold" Backups for Disaster Recovery Customers with Software Assurance for Microsoft server software, as well as related Client Access Licenses, are eligible for complimentary "cold backup" server licenses for disaster recovery. Corporate Error Reporting Corporate Error Reporting (CER) gives you a clear and easy way to monitor and review error information so you can control deployment of fixes and resolutions. It provides the ability for applications and the operating system to collect and report on crashes in the system. Transition Extended Life- cycle Hotfix Support Enter into Extended Hotfix Support Account (EHSA) as hotfix issues arise. Annual fees and required sign - up periods associated with EHSA are waived for Software Assurance customers, increasing peace of mind and reducing support costs. A Premier or Essential Support agreement is a pre -requisite for eligibility. For more information about Software Assurance benefits, please visit: http://www.microsoft.com/licensing/programs/sa Form # 116-101 RFQ Public Purchase Revision 04/12/11 12 County of Riverside Request for Quote # PUARC-1200 Purchasing & Fleet Services Closing Date: 10/11/2011@1:30 P.M. Local Business Qualification Affidavit The County of Riverside Local Business Preference may be applied to this Request for Proposal/Quotation. If you qualify for this preference, please submit this form along with your response to this RFP/Q. Definition of Local Business A local business shall mean a business or firm with fixed offices located within the geographical boundaries of Riverside County, and authorized to perform business within the County. In doing so, credit all sales tax from sales generated within Riverside County to the County, and who provide product or perform contracted work using employees, of whom the majority are physically located in said local offices. Local businesses" shall have a Riverside County business street address. Post office box numbers, residential addresses, or un-staffed sales offices shall not suffice to establish status as a "local business." To qualify as a "local business" the location must be open and staffed during normal business hours and the business must establish proof that it has been located and doing business in Riverside County for at least (6) six months preceding its certification to the County as a local business. Additional supporting documentation that may be requested by the County to verify qualification includes: 1. A copy of their current BOE 531-A and/or BOE 530-C form (State, Local & District Sales, and Use Tax Return Form). This is what businesses submit to the State Board of Equalization when paying the sales tax to the State of California indicating the amount of the payment to be credited to each jurisdiction (i.e. Counties, Cities). 2. A current business license if required for the political jurisdiction the business is located. 3. Proof of the current business address. The local business needs to be operating from a functional office that is staffed with the company's employees, during normal business hours. Business Name: Physical Address: Phone: FAX: E -Mail: Length of time at this location: If less than 6 month, list previous Riverside County location: Number of Company Employees at this address: Business License # (where applicable): Jurisdiction Hours of Operation: Primary function of this location (i.e., sales, distribution, production, corporate, etc): Signature of Company Official Date Print Name, Title Submittal of false data will result in disqualification of local preference and/or doing business with the Riverside County. 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P. i ee ,or±de ed uriil l e; evel,' 7 5 G >for E te'rj rise, pii uets`a . . :00.110:44.14 ln7tia? order, at the time of enmllt�te t Tnrrs-ur eriteiprlse 1.er:' dartjonal,prodvctsordered5.0401.1.00410 When,renernritrgwiite the user• ALa, the price level focany-enterptise ircductz or,••add;,ional, . proiluits otderedfra51.h. server poo43s es b1rshedras7ni(41 . • .if'i,e i.see.CALs are renewed as part ofthe,pla orm then that_pnce,level is reset has° pri5ul'de d:, irr, the;gener-al,'rule* :Eori r7l igit7AWW'XEtia)e it00p)` p ita a i +lE( 't7t iro�tuct pool: ievet °tor?';. rise fdd, 6tt}iass,a • • for: add ttonaI;. ea!f7 5.4'1too CT- 1 h: �1. r: '•t.l s•. 1 P: tti P II • t. er 1, ae} °«h # re: ?o gLladfied,0,00iais ar I wde• a 36 iinonlh and 60 month enroil aro led iaffittnte nay temr�nete then- onmilmen annnersar/ 0 their enrollment (iv of arty of x©1rdat lrcesrng 2s s artt eE�^�' xire,Fx rme' as.. ange JnIine, 6•; rar�.Prxtit t3nlrne and t.ync ottlm 5 �+e s t . 'I he aGc�s ad ty trsia ner's it xsan�gmd tc n`:s R.:. sas � '` e alaiac i'tex anly rat the` ean€rhebtal dlnr�ec€ 5 ates� praurdett fi �€h ' F nu c atei! i h Viz? 11 s in iae tJ ed Staf r c' ' it • z 0 4 X 0 >- u_ CC U o o o a a C C N N o o o O o o ❑ ❑ Dep t Recomm Per Exec. Ofc 1 SUBMITTAL TO THE BOARD OF SUPERVISORS COUNTY OF RIVERSIDE, STATE OF CALIFORNIA FROM: Purchasing and Fleet Services and Riverside County Information Technology (RCIT) SUBJECT: APPROVAL OF MICROSOFT ENTERPRISE AGREEMENT RECOMMENDED MOTION: That the Board of Supervisors: SUBMITTAL DATE: November 2, 2011 1. Authorize County departments to enroll in the statewide renewal of Microsoft Enterprise Agreement (EA), which runs for up to five (5) years, and; 2. Authorize the Purchasing Agent, in accordance with Ordinance No. 459.4, to enter in the Master Enterprise Agreement and Premier Support Services without seeking competitive bids, and sign the purchase orders, amendments, and exercise the renewal option based on the availability of fiscal funding that does not change the substantive terms of the purchase, and will not exceed the annual CPI rates. (Continued on Page 2) Re : RT HOW I>' HELL, Director Purchasing and Ieet Services DEAN DEINES Interim Chief Information Officer FINANCIAL DATA Current F.Y. Total Cost: Current F.Y. Net County Cost: Annual Net County Cost: SOURCE OF FUNDS: $ 5,300,000 $0 _$2,650,000 In Current Year Budget: Budget Adjustment: For Fiscal Year: Positions To Be Deleted Per A-30 Requires 4/5 Vote C.E.O. RECOMMENDATION: APPROVE BY: t# r County Executive Office Signature Serena Chow Prev. Agn. Ref.: 3.33, 6/17/08; 3.55, 6/29/011 District: Agenda Number: Yes No 11/12 3.27 BOARD OF SUPERVISORS FORM 11: APPROVAL OF MICROSOFT ENTERPRISE AGREEMENT PAGE 2 BACKGROUND The County of Riverside has been the leader in the negotiations and procurement of the statewide cooperative license purchase agreement for the statewide Microsoft Enterprise software and services. There are 388 governmental agencies in California that utilize this enterprise agreement. Through this negotiation process, the County of Riverside has obtained the deepest discounts offered to any governmental agencies, and as a result will be utilized by most of the public entities throughout the State of California. The Microsoft Enterprise Agreement is an annual program that covers licensing of standard desktop software (Microsoft Office, Microsoft Windows, and Back Office products) and Enterprise Platform products. The County has been challenged in the past in consistently maintaining software at current version levels and Microsoft products are the most predominant product used by all departments on all personal computers and Enterprise Platform products to support Departments basic needs in the County. In an effort to keep software current and licensed at the County, a maintenance program is provided by Microsoft. A maintenance program will cost less than what departments would spend upgrading all products once over a three or five-year period. The potential for significant savings exists due to changes in Microsoft licensing' policies and potential cost increases of Microsoft products over the next five years. Some of the key benefits realized from this program are: • Departments can upgrade to any Microsoft product version as they choose and when convenient. • Licensing for the products covered by this program no longer need to be tracked. Participants merely count the qualified desktops or user counts and true up with that number of licenses. • The flexibility to sign-up by user allows for multiple devices such as smart phones and tablets (i.e., !Phones, (Pads, etc.) and securing only one license opposed to multiple. • EA provides a consistent year-to-year budget for this program in an effort to keep County software current, legal, and consistent. • EA protects the County against Microsoft price increases for the duration of the agreement. • EA compliments other countywide technology initiatives (PeopleSoft, Exchange, Remedy, and Resumix). County departments and agencies are currently enrolled in this program. In Fiscal Year 2010/11, the county invested $3,851,890 for 19,734 desktops enrolled in the program. Departments may also order other Microsoft products (such as Window Server, Visio, MS BOARD OF SUPERVISORS FORM 11: APPROVAL OF MICROSOFT ENTERPRISE AGREEMENT PAGE 3 BACKGROUND (Continued) project) off of this contract and receive the same discounting offered for the core desktop licensing for Riverside County. County Departments will have agreement options that best fit their departmental needs including either a three or five year agreement. PRICE REASONABLENESS Information Technology and the Purchasing Department, working with Microsoft, determined best pricing and developed a customized licensing program that works best for California Government. The analysis shows that by participating in the Enterprise Agreement (EA), the County can save as much as $907,686 annually off the retail price and $4,538,430 over the next five (5) years. The requested $6 million annual amount allows individual departments to purchase their user or device license and various platform products and services that departments purchase to meet their business needs. The $6 million is an estimated amount that provides for the purchasing authority off the Microsoft agreement in order to ensure county departments receive all applicable discounts. As with any county purchase, all purchase orders will be processed through County Purchasing for approval. Because Microsoft only sells their products through resellers, Purchasing released a Request for Quote PURAC-1200, on PublicPurchase.com and advertised on the County's Internet to obtain Microsoft Large Account resellers (LARs), which resulted in six LARs responding to the solicitation. The County evaluated the responses and recommends that Insight Public Sector Inc. be awarded as the primary LAR for Riverside County, and the remaining five, CompuCom Systems, Inc., Dell Marketing, L.P., Enpointe Technologies Sates Inc., PC Mali Gov, Inc., and Softchoice Corporation also be awarded for use by other governmental entities to allow these entities the option to select their LAR based on their own geographical or other. criteria. These LARs shall be authorized to offer a contract for any government entity in California to enroll into the Microsoft Enterprise Agreement through December 31, 2016. CompuCom Systems Inc. 7171 Forest Lane Dallas TX 75230 www.compucom.com Wednesday, April 04, 2012 Adrian Brown, JD Contract Administrator Purchasing & Contract Administration City of Palo Alto Mezzanine Floor 250 Hamilton Ave Palo Alto, CA 94303 Dear Mr. Brown, C) CompuCom Please find below our response for bid to renew your upcoming Microsoft Enterprise Agreement. This annual payment is valid for either a 3 year or a 5 year term. Please let me know if you have any questions. 144913 Microsoft Enterprise License, Volume Licensing for City of Palo Alto, California; Piggyback to Riverside County, California RFQ No. PUARC-1200 (MS Agreement Number 01E73134, Riverside Contract No. RIVCO-20800-002-12/12) EA Annual Payment Microsoft Part Number: Product Description: Unit Price: Quantity: Total: 269-12442 OfficeProPlus ALNG SA MVL Pltfrm $77.41 1000 $77,410.00 FQC-02460 WinPro ALNG SA MVL Pitfrm $28.44 1000 $28,440.00 W06-01072 CoreCAL ALNG SA MVL Pitfrm UsrCAL $29.41 1000 $29,410.00 359-00961 SQLCAL ALNG SA MVL UsrCAL $24.05 1000 $24,050.00 395-02504 ExchgSvrEnt ALGN SA MVL $595.99 3 $1,787.97 810-04760 SQLSvrEnt ALGN SA MVL $1,264.14 15 $18,962.10 9JD-00053 VSUItwMSDN ALGN SA MVL $1,503.14 4 $6,012.56 D87-01159 VisioPro ALGN SA MVL $78.29 40 $3,131.60 H21-00591 PrjctSvrCAL ALGN SA MVL UsrCAL $23.62 75 $1,771.50 H22-00475 PrjctSvr ALGN SA MVL $724.78 1 $724.78 H30-00238 PrjctPro ALGN SA MVL w1PRJCTSvrCAL $152.64 50 $7,632.00 P72-00188 WinSvrEnt ALGN SA MVL $346.82 15 $5,202.30 P73-00226 WinSvrStd ALGN SA MVL $106.71 57 $6,082.47 Total 4260 $210,617.28 1 Brief description of CompuCom's value adds around the EA CompuCom takes our Microsoft relationship seriously; Microsoft is worth 80% of our State of California Public Sector software business, so we have to make sure we do it right! CompuCom employs 4 outbound (California based) Software Specialists, plus 4 dedicated Software Only support personnel located in Dallas. These 8 specialists only support software sales to State and Local Government in California. Our 4 outbound CompuCom Software Licensing Specialists are Microsoft MCPs and SIIA Certified Software Managers; they can help you maneuver around the intricacies of the Software Licensing Agreement's language and definition. Your CompuCom Local Software Licensing Specialist will guide you through the annual True -Up process by providing detailed instructions and reports approximately 2 to 3 months prior to your anniversary date. CompuCom's detailed reports help you anticipate annual payments for budget purposes, plus provide valuable information when you're counting your assets for future purchases. Regards, Miles Allarea Software Solutions Specialist Phone 916-934-6023 Pass -Through Warranty and Other Rights As a reseller, end -user warranties and liabilities (with respect to any third party hardware and software products provided by CompuCom) shall be provided as a pass -through from the manufacturer of such products. All software products are subject to the license agreement of the applicable software supplier, as provided with the software packaging or in the software at time of shipment. All prices are subject to change based on re -leveling by Microsoft or change of reseller incentives by Microsoft. 2 Microsoft I Volume Licensing Enterprise Enrollment Amendment ID M55 000-cgodfrey-S-386 For the purposes of this Amendment, "Entity" can mean the signing entity, Customer, Enrolled Affiliate, Government Partner, Institution, or other party entering into a volume licensing program agreement. Notwithstanding anything to the contrary or in addition to any terms in the Enrollment, the Enrollment is amended as follows: Entity may submit a renewal order no later than 90 days after the expiration date of Enrollment/Authorization number 6880181, so long as the effective date of Entity's renewal order starts one day following the expiration of the previous term. In the absence of this Amendment or an on -time renewal order, Entity loses the opportunity to renew Software Assurance, and Subscription Licenses may be impacted. This Amendment must be attached to a signature form to be valid. EnrAmend(WW)(ENG)(JuI2011) Grace Period B B M55 Page 1 of 1 Microsoft I Volume Licensing Enterprise Enrollment State and Local Enterprise Enrollment number (Microsoft to complete) Previous Enrollment number (Reseller to complete) 6880181 Proposal ID Earliest expiring previous Enrollment end date' 1/31/12 This Enrollment must be attached to a signature form to be valid. This Microsoft Enterprise Enrollment is entered into between the entities as identified in the signature form as of the effective date. Enrollment Affiliate represents and warrants it is the same Customer, or an Affiliate of the Customer, that entered into the Enterprise Agreement identified on the program signature form. This Enrollment consists of: (1) these terms and conditions, (2) the terms of the Enterprise Agreement identified on the signature form, (3) the Product Selection Form, (4) any supplemental contact information form or Previous Agreement/Enrollment form that may be required, (5) any order submitted under this Enrollment. This Enrollment may only be entered into under a 2011 or later Enterprise Agreement. All terms used but not defined are located at http://www.microsoft.com/licensing/contracts. In the event of any conflict the terms of this agreement control. As a condition of entering into this Enrollment with 25-249 Qualified Devices or Qualified Users, the Enrolled Affiliate agrees that (1) it also has 250 or more Qualified Devices or Qualified Users; or (2) as a condition of entering into this Enrollment with 25-249 Qualified Devices or Qualified Users, Enrolled Affiliate has elected not to receive CD ROMs as part of the Enrollment and therefore no CD ROMs will automatically be shipped. If Enrolled Affiliate is enrolling with 25-249 Qualified Devices or Qualified Users and it would like to receive CD ROM Kits and updates, Enrolled Affiliate may order these through its Reseller for a fee Effective date. If Enrolled Affiliate is renewing Software Assurance or Subscription Licenses from one or more previous Enrollments or agreements, then the effective date will be the day after the first prior Enrollment or agreement expires or terminates. Otherwise, the effective date will be the date this Enrollment is accepted by Microsoft. If renewing Software Assurance, the Reseller will need to insert the previous enrollment or agreement number and end date in the respective boxes above. Term. This Enrollment will expire on the last day of the month, 60 full calendar months from the effective date unless otherwise renewed. Any reference in this Enrollment to "day" will be a calendar day. The 60 - month initial term is required by the The County of Riverside as indicated in the original request for proposal and final award. Customer may terminated this Enrollment for its convenience without penalty on the third anniversary of this Enrollment (or at any other time as permitted by California law) subject to proportional licensing as set forth in Section 7d of the Agreement. Product order. The Reseller will provide Enrolled Affiliate with Enrolled Affiliate's Product pricing and order. Prices and billing terms for all Products ordered will be determined by agreement between Enrolled Affiliate and the Reseller.The Reseller will provide Microsoft with the order separately from this Enrollment. Prior Enrollment(s). If renewing Software Assurance or Subscription Licenses from another Enrollment or agreement, the previous Enrollment or agreement number and end date must be identified in the respective boxes above. If renewing from multiple Enrollments or agreements, or transferring Software Assurance or MSDN details, the Previous Agreement/Enrollment form must be used. Enterprise v 2011 Custom Riverside County Enrollment (North America) Page 1 of 10 State and Local (English) Nov, 2011 (CTM) Terms and Conditions 1. Definitions. Terms used but not defined in this Enrollment will have the definition in the Enterprise Agreement. The following definitions are used in this Enrollment: "Additional Product" means any Product identified as such in the Product List and chosen by Enrolled Affiliate under this Enrollment. "Enterprise Online Service" means any Online Service designated as an Enterprise Online Service in the Product List and chosen by Enrolled Affiliate under this Enrollment. Enterprise Online Services are treated as Online Services, except as noted. "Enterprise Product" means any Desktop Platform Product that Microsoft designates as an Enterprise Product in the Product List and chosen by Enrolled Affiliate under this Enrollment. Enterprise Products may only be licensed for all Qualified Devices and Qualified Users on an Enterprise -wide basis under this program. "Expiration Date" means the date upon which the Enrollment expires. "Industry Device" (also known as line of business device) means any device that: (1) is not useable in its deployed configuration as a general purpose personal computing device (such as a personal computer), a multi -function server, or a commercially viable substitute for one of these systems; and (2) only employs an industry or task -specific software program (e.g. a computer -aided design program used by an architect or a point of sale program) ("Industry Program"). The device may include features and functions derived from Microsoft software or third -party software. If the device performs desktop functions (such as email, word processing, spreadsheets, database, network or Internet browsing, or scheduling, or personal finance), then the desktop functions: (1) may only be used for the purpose of supporting the Industry Program functionality; and (2) must be technically integrated with the Industry Program or employ technically enforced policies or architecture to operate only when used with the Industry Program functionality. "Qualified Device" means any personal desktop computer, portable computer, workstation, or similar device that is used by or for the benefit of Enrolled Affiliate's Enterprise. It does not include: (1) any computer that is designated as a server and not used as a personal computer, (2) any Industry Device, (3) any device running an embedded operating system (e.g., Windows Phone 7) that does not access a virtual desktop infrastructure, or (4) any device that is not managed and/or controlled either directly or indirectly by Enrolled Affiliate's Enterprise. Enrolled Affiliate may include as a Qualified Device any device which would be excluded above (e.g., Industry Device). "Qualified User" means a person (e.g., employee, consultant, contingent staff) who: (1) is a user of a Qualified Device, or (2) accesses any server software requiring an Enterprise Product Client Access License or any Enterprise Online Service. It does not include a person who accesses server software or an Online Service solely under a License identified in the Qualified User exemptions in the Product List. "Reserved License" means for an Online Service identified as eligible for true -ups in the Product List, the License reserved by Enrolled Affiliate prior to use and for which Microsoft will make the Online Service available for activation. "Transition" means the conversion of one or more License to or from another License(s). Products eligible for Transition and permitted Transitions are identified in the Product List. "Transition Period" means the time between the Transition and the next Enrollment anniversary date for which the Transition is reported. Enterprise v 2011 Custom Riverside County Enrollment (North America) Page 2 of 10 State and Local (English) Nov, 2011 (CTM) 2. Purpose. This Enrollment enables Enrolled Affiliate's Enterprise to obtain, or subscribe to, Licenses for Enterprise Products, Enterprise Online Services, and Additional Products. Enrolled Affiliate may choose between on -premise software and Online Services as well as the ability to transition Licenses to Online Services while maintaining Enterprise -wide coverage. Additionally, Enterprise Online Services may be purchased without Enterprise -wide coverage. 3. Product Use Rights, Qualifying Systems Licenses and Transitions. In addition to applicable terms of the Enterprise Agreement, the following terms apply to this Enrollment: a. Product Use Rights. For Enterprise Products, if a new Product version has more restrictive use rights than the version that is current at the start of the applicable initial or renewal term of the Enrollment, those more restrictive use rights will not apply to the Enrolled Affiliate's use of that Product during the term. b. Qualifying systems Licenses. The operating system Licenses granted under this program is upgrade Licenses only. Full operating system Licenses are not available under this program. If Enrolled Affiliate selects any Desktop Platform, Windows Desktop Operating System Upgrade, or Windows Intune, all Qualified Devices on which Enrolled Affiliate expects to run the Windows Desktop Operating System Upgrade must be licensed to run, and have installed on them, one of the qualifying operating systems identified in the Product List. Note that the list of operating systems that qualify for the Windows Desktop Operating System Upgrade varies with the circumstances of the order. That list is more extensive at the time of the initial order than it is for some subsequent orders and system refreshes during the term of this Enrollment. Exclusions are subject to change when new versions of Windows are released. For example: The following are not considered qualifying operating systems: (1) ANY Windows Home or Starter edition; (2) Embedded Systems; and (3) Linux.These are examples of exclusions only and may change. Please see Product List for all current qualifying operating systems. c. Transitions. The following requirements apply to Transitions: (i) Licenses with active Software Assurance or Subscription Licenses may be Transitioned at any time if permitted in the Product List. While Enrolled Affiliate may Transition any time, it will not be able to reduce Licenses or associated Software Assurance prior to the end of the Transition Period. (ii) If a Transition is made back to a License that had active Software Assurance as of the date of Transition, then Software Assurance will need to be re -ordered for all such Licenses on a prospective basis following the Transition Period. Software Assurance coverage may not exceed the quantity of perpetual Licenses for which Software Assurance was current at the time of any prior Transition. Software Assurance may not be applied to Licenses transferred by Enrolled Affiliate. (iii) If a device -based License is Transitioned to a user -based License, all users of the device must be licensed as part of the Transition. (iv) If a user -based License is Transitioned to a device -based License, all devices accessed by the user must be licensed as part of the Transition. d. Effect of Transition on Licenses. Transition will not affect Enrolled Affiliate's rights in perpetual Licenses paid in full. (i) New version rights will be granted for perpetual Licenses covered by Software Assurance up to the end of the Transition Period. Enterprise v 2011 Custom Riverside County Enrollment (North America) Page 3 of 10 State and Local (English) Nov, 2011 (CTM) (ii) For L&SA not paid in full at the end of the Transition Period, Enrolled Affiliate will have perpetual Licenses for a proportional amount equal to the total of installments paid versus total amounts due (paid and payable) for the Transitioned Product. (iii) For L&SA not paid in full or granted a perpetual License in accordance with the above or Subscription Licenses, all rights to Transitioned Licenses cease at the end of the Transition Period. 4. Pricing. a. Price Levels. For both the initial and any renewal term Enrolled Affiliate's Price Level for all Products ordered under this Enrollment will be Level "D" throughout the term of the Enrollment. Price Level's will be captured in the Product Selection Form. b. Setting Prices. Enrolled Affiliate's prices for each Product will be established by its Reseller. Microsoft's prices for Resellers are fixed throughout the Enrollment term based upon current prices at the time of the initial order for the Product. This includes the following: (i) Any future pricing (if applicable); and (ii) Prices for Transitions, including any prices related to the use of a Product during the Transition Period (if applicable). 5. Order requirements. a. Minimum Order Requirements. Enrolled Affiliate's Enterprise must have a minimum of 25 Qualified Users or Qualified Devices. (i) Initial Order. Initial order must include at least 25 Licenses from one of the four groups outlined in the Product Selection Form. (ii) If choosing Enterprise Products. If choosing Enterprise Products in a specific group outlined in the Product Selection Form, Enrolled Affiliate's initial order must include an Enterprise -wide selection of one or more Enterprise Products or a mix of Enterprise Products and corresponding Enterprise Online Services for that group. (iii) Additional Products. Upon satisfying the minimum order requirements above, Enrolled Affiliate may order Additional Products. (iv) Country of Usage. Enrolled Affiliate must specify the countries where Licenses will be used on its initial order and on any additional orders. b. Adding Products. (i) Adding new Products not previously ordered. Enrolled Affiliate may add new Enterprise Products by entering into a new Enrollment or as part of a renewal. New Enterprise Online Services may be added by contacting a Reseller. New Additional Products, other than Online Services, may be used if an order is placed in the month the Product is first used. For Additional Products that are Online Services, an initial order for the Online Service is required prior to use. (ii) Adding Licenses for previously ordered Products. Additional Licenses for previously ordered Products must be included in the next true -up order. Enrolled Affiliate must Licenses for Online Services prior to use, unless the Online Services are (1) identified as eligible for true -up in the Product List or (2) included as part of other Licenses (e.g., Enterprise CAL). c. True -up orders. Enrolled Affiliate must submit an annual true -up order that accounts for changes since the initial order or last true -up order, including: (1) any increase in Licenses, including any increase in Qualified Devices or Qualified Users and Reserved Licenses; (2) Transitions (if permitted); or (3) Subscription License quantity reductions (if permitted). Enterprise v 2011 Custom Riverside County Enrollment (North America) Page 4 of 10 State and Local (English) Nov, 2011 (CTM) Microsoft, at its discretion and as permitted by applicable law, may validate the customer true -up data submitted through a formal product deployment assessment, using an approved Software Asset Management ('SAM') Partner. The true -up order must be received by Microsoft between 60 and 30 days prior to the Enrollment anniversary date. The third -year anniversary true -up order is due within 30 days prior to the Expiration Date. Enrolled Affiliate may true -up more often than at each Enrollment anniversary date except for Subscription License reductions. (i) Enterprise Products. Enrolled Affiliate must determine the current number of Qualified Devices and Qualified Users (if ordering user -based Licenses) and order the License difference (if any), including any Enterprise Online Services. (ii) Additional Products. For Products which have been previously ordered, Enrolled Affiliate must determine the Additional Products used and order the License difference (if any). (iii) Online Services. For Online Services identified as eligible for true -up orders in the Product List, Enrolled Affiliate must first reserve the additional Licenses prior to use. Microsoft will provide a report of Reserved Licenses in excess of existing orders to Enrolled Affiliate and its Reseller. Reserved Licenses will be invoiced retroactively for the prior year based upon the month in which they were reserved. (iv) Late true -up order. If the true -up order is not received when due: 1) Microsoft will invoice Reseller for all Reserved Licenses not previously ordered. 2) Transitions and Subscription License reductions cannot be reported until the following Enrollment anniversary date (or at Enrollment renewal, as applicable). (v) Transitions. Enrolled Affiliate must report all Transitions. Transitions may result in an increase in Licenses to be included on the true -up order and a reduction of Licenses for prior orders. Reductions in Licenses will be effective at end of the Transition Period. Associated invoices will also reflect this change. (vi) Subscription License Reductions. Enrolled Affiliate may reduce the quantity of Subscription Licenses on a prospective basis if permitted in the Product List as follows: 1) For Subscription Licenses part of an Enterprise -wide commitment, Licenses may be reduced if the total quantity of Licenses and Software Assurance for an applicable group meets or exceeds the quantity of Qualified Devices identified on the Product Selection Form. Step-up Licenses do not count towards this total count. 2) For Enterprise Online Services not a part of an Enterprise -wide commitment, Licenses can be reduced as long as the initial order minimum requirements are maintained. 3) For Additional Products available as Subscription Licenses, Enrolled Affiliate may reduce the Licenses. If the License count is reduced to zero, then Enrolled Affiliate's use of the applicable Subscription License will be cancelled. Invoices will be adjusted to reflect any reductions in Subscription Licenses at the true -up order Enrollment anniversary date and effective as of such date. (vii)Update statement. An update statement must be submitted instead of a true -up order if, as of the initial order or last true -up order, Enrolled Affiliate's Enterprise has not: (1) changed the number of Qualified Devices and Qualified Users licensed with Enterprise Products or Enterprise Online Services; and (2) increased its usage of Additional Products. This update statement must be signed by Enrolled Affiliate's authorized representative. The update statement must be received by Microsoft between 60 and 30 days prior to the Enrollment anniversary date. The last update statement is due at least 30 days prior to the Expiration Date. Enterprise v 2011 Custom Riverside County Enrollment (North America) Page 5 of 10 State and Local (English) Nov, 2011 (CTM) d. Step-up Licenses. For Licenses eligible for a step-up under this Enrollment, Enrolled Affiliate may step-up to a higher edition or suite as follows: (i) For step-up Licenses included on an initial order, Enrolled Affiliate may order according to the true -up process. (ii) If step-up Licenses are not included on an initial order, Enrolled Affiliate may step-up initially by following the process described in the Section titled "Adding new Products not previously ordered," then for additional step-up Licenses, by following the true -up order process. (iii) If Enrolled Affiliate has previously ordered an Online Service as an Additional Product and wants to step-up to an Enterprise Online Service eligible for a Transition, the step-up may be reported as a Transition. (iv) If Enrolled Affiliate Transitions a License, it may be able to further step-up the Transitioned License. If Enrolled Affiliate chooses to step-up and the step-up License is separately eligible to be Transitioned, such step-up Licenses may result in a License reduction at the Enrollment anniversary date following the step-up. 6. Payment terms. For the initial or renewal order, Enrolled Affiliate may pay upfront or elect to spread its payments over the applicable Enrollment term. If spread payments are elected, unless indicated otherwise, Microsoft will invoice Enrolled Affiliate's Reseller in three equal annual installments. The first installment will be invoiced upon Microsoft's acceptance of this Enrollment and on each Enrollment anniversary date. Subsequent orders are invoiced upon acceptance of the order and Enrolled Affiliate may elect to pay annually or upfront for Online Services and upfront for all other Licenses. 7. End of Enrollment term and termination. a. General. At the Expiration Date, Enrolled Affiliate must immediately order and pay for Licenses for Products it has used but has not previously submitted an order, except as otherwise provided in this Enrollment. b. Renewal Option. At the Expiration Date, Enrolled Affiliate can renew Products by renewing the Enrollment for one additional 36 full calendar month term or signing a new Enrollment. Microsoft must receive a Product Selection Form and renewal order prior to or at the Expiration Date. The renewal term will start on the day following the Expiration Date. Microsoft will not unreasonably reject any renewal. Microsoft may make a change to this program that will make it necessary for Customer and its Enrolled Affiliates to enter into new Agreements and Enrollments. c. If Enrolled Affiliate elects not to renew. (i) Software Assurance. If Enrolled Affiliate elects not to renew Software Assurance for any Product under its Enrollment, then Enrolled Affiliate will not be permitted to order Software Assurance later without first acquiring L&SA. (ii) Online Services eligible for an Extended Term. For Online Services identified as eligible for an Extended Term in the Product List, the following options are available at the end of the Enrollment initial or renewal term. 1) Extended Term. Licenses for Online Services will automatically expire in accordance with the terms of the Enrollment. An extended term feature that allows Online Services to continue month -to -month ("Extended Term") is available. During the Extended Term, Online Services will be invoiced monthly at the then -current published price for Enrolled Affiliate's price level as of the Expiration Date plus a 3% Enterprise v 2011 Custom Riverside County Enrollment (North America) Page 6 of 10 State and Local (English) Nov, 2011 (CTM) administrative fee for up to one year. If Enrolled Affiliate does want an Extended Term, Government Partner must submit a request to Microsoft. Microsoft must receive the request not less than 30 days prior to the Expiration Date. 2) Cancellation during Extended Term. If Enrolled Affiliate has opted for the Extended Term and later determines not to continue with the Extended Term, Government Partner must submit a notice of cancellation for each Online Service. Cancellation will be effective at the end of the month following 30 days after Microsoft has received the notice. (iii) Online Services not eligible for an Extended Term. If Online Services are not identified as eligible for an Extended Term in the Product List, the Licenses will be cancelled and will terminate as of the Expiration Date. Any associated media must be uninstalled and destroyed and Enrolled Affiliate's Enterprise must discontinue use. Microsoft may request written certification to verify compliance. (iv) Customer Data. Upon expiration or termination of a License for Online Services, Enrolled Affiliate must tell Microsoft whether to: 1) disable its account and then delete its Customer Data ("Data Deletion"); or 2) retain its Customer Data in a limited function account for at least 90 days after expiration or termination of the License for such Online Service (the "Retention Period") so that Enrolled Affiliate may extract its Customer Data. 3) If Enrolled Affiliate indicates Data Deletion, Enrolled Affiliate will not be able to extract its Customer Data. If Enrolled Affiliate indicates it wants a Retention Period, Enrolled Affiliate will be able to extract its Customer Data through Microsoft's standard processes and tools, and Enrolled Affiliate will reimburse Microsoft if there are any applicable costs to the extent allowed by applicable law. If Enrolled Affiliate does not indicate either Data Deletion or a Retention Period, Microsoft will retain Enrolled Affiliate's Customer Data in accordance with the Retention Period. 4) Following the expiration of the Retention Period, Microsoft will disable Enrolled Affiliate's account and then delete its Customer Data. 5) Enrolled Affiliate agrees that, other than as described above, Microsoft has no obligation to continue to hold, export or return Enrolled Affiliate's Customer Data. Enrolled Affiliate agrees Microsoft has no liability whatsoever for deletion of Enrolled Affiliate's Customer Data pursuant to these terms. d. Termination for cause. Any termination for cause of this Enrollment will be subject to the "Termination for cause" Section of the agreement. e. Early termination. Any Early termination of this Enrollment will be subject to the "Early Termination" Section of the Enterprise Agreement. For Subscription Licenses, in the event of a breach by Microsoft, Microsoft will issue Reseller a credit for any amount paid in advance that would apply after the date of termination. Enterprise v 2011 Custom Riverside County Enrollment (North America) Page 7 of 10 State and Local (English) Nov, 2011 (CTM) Enrollment Details 1. Enrolled Affiliate's Enterprise. Identify which Affiliates are included in the Enterprise. Check only one box in this section: ® Enrolled Affiliate ❑ Enrolled Affiliate and the following Affiliate(s): ❑ Enrolled Affiliate and all Affiliates, with following Affiliate(s) excluded: Please indicate whether the Enrolled Affiliate's Enterprise will include all new Affiliates acquired after the start of this Enrollment: Include future Affiliates 2. Contact information. Each party will notify the other in writing if any of the information in the following contact information page(s) changes. The asterisks (*) indicate required fields. By providing contact information, Enrolled Affiliate consents to its use for purposes of administering this Enrollment by Microsoft, its Affiliates, and other parties that help administer this Enrollment. The personal information provided in connection with this Enrollment will be used and protected in accordance with the privacy statement available at https://www.m icrosoft.com/licensing/servicecenter. a. Primary contact. This contact is the primary contact for the Enrollment from within Enrolled Affiliate's Enterprise. This contact is also an Online Administrator for the Volume Licensing Service Center and may grant online access to others. Name of entity (must be legal entity name)* City of Palo Alto Contact name* First KB Last Paige Contact email address* KB.Paige@cityofpaloalto.org Street address* 250 Hamilton Ave City* Palo Alto State/Province* CA Postal code* 94301 (For U.S. addresses, please provide the zip + 4, e.g. xxxxx-xxxx) Country* USA Phone* 650-617-3109 Fax Tax ID b. Notices contact and Online Administrator. This contact (1) receives the contractual notices, (2) is the Online Administrator for the Volume Licensing Service Center and may Enterprise v 2011 Custom Riverside County Enrollment (North America) Page 8 of 10 State and Local (English) Nov, 2011 (CTM) grant online access to others, and (3) is authorized for applicable Online Services to add or reassign Licenses, step-up, and initiate Transitions prior to a true -up order. ❑ Same as primary contact Name of entity* CompuCom Systems, Inc Contact name* First Bruce Last Valentin Contact email address* bvalenti@compucom.com Street address* 7171 Forest Lane City* Dallas State/Province* TX Postal code* 75230 - (For U.S. addresses, please provide the zip + 4, e.g. xxxxx-xxxx) Country* USA Phone* 972-856-4617 Fax Language preference. Choose the language for notices. English ® This contact is a third party (not the Enrolled Affiliate). Warning: This contact receives personally identifiable information of the Customer and its Affiliates. c. Microsoft Account Manager. Microsoft Account Manager for this Enrolled Affiliate is: Microsoft account manager name: Gina Kirby Microsoft account manager email address: gkirby@microsoft.com d. Media delivery contact (DO NOT COMPLETE IF ATTACHING MEDIA ELECTION FORM). This is the contact at the ship to/electronic delivery address. ❑ Same as notices contact and Online Administrator Name of entity* City of Palo Alto Contact name: First* KB Last* Paige Contact email address (required for online access)* KB.Paige@cityofpaloalto.org Street address (no PO boxes accepted)* 250 Hamilton Ave City* Palo Alto State/Province* CA Postal code* 94301 - (For U.S. addresses, please provide the zip + 4, e.g. xxxxx-xxxx) Country* USA Phone* 50-617-3109 Fax e. Online Services Manager. This contact is authorized to manage the Online Services ordered under the Enrollment and (for applicable Online Services) to add or reassign Licenses, step-up, and initiate Transitions prior to a true -up order. ❑ Same as notices contact and Online Administrator Name of entity* City of Palo Alto Contact name*: First KB Last Paige Contact email address* KB.Paige@cityofpaloalto.org Street address* 250 Hamilton Ave City* Palo Alto State/Province* CA Postal code* 94301 Country* USA Phone* 50-617-3109 Fax ❑ This contact is from a third party organization (not the entity). Warning: This contact receives personally identifiable information of the entity. f. Reseller information. Reseller contact for this Enrollment is: Reseller company name* CompuCom Systems, Inc. Street address (PO boxes will not be accepted)* 7171 Forest Lane City* Dallas State/Province* TX Postal code* 75230 Country* US Contact name* Bruce Valentin Enterprise v 2011 Custom Riverside County Enrollment (North America) Page 9 of 10 State and Local (English) Nov, 2011 (CTM) Phone* 972-856-4617 Fax 972-856-0265 Contact email address* bvalentin@compucom.com The undersigned confirms that the information is correct. Name of Reseller* Signature* Printed name* Bruce E. Valentin Printed title* Microsoft Licensing Specialist Date* Changing a Reseller. If Microsoft or the Reseller chooses to discontinue doing business with each other, Enrolled Affiliate must choose a replacement Reseller. If Enrolled Affiliate or the Reseller intends to terminate their relationship, the initiating party must notify Microsoft and the other party using a form provided by Microsoft at least 90 days prior to the date on which the change is to take effect. g. If Enrolled Affiliate requires a separate contact for any of the following, attach the Supplemental Contact Information form. Otherwise, the notices contact and Online Administrator remains the default. • Additional notices contact • Software Assurance manager • Subscriptions manager • Customer Support Manager (CSM) contact 3. Financing elections. Is a purchase under this Enrollment being financed through MS Financing? ❑ Yes, .1 No. Enterprise v 2011 Custom Riverside County Enrollment (North America) Page 10 of 10 State and Local (English) Nov, 2011 (CTM) Microsoft Volume Licensing Enterprise and Enterprise Subscription Enrollment Product Selection Form — State and Local Enrollment Number Microsoft to complete for initial term Reseller to complete for renewal 6880181 Step 1. Please indicate whether Enrolled Affiliate is ordering Enterprise Products or Enterprise Online Services on the initial enrollment order. Choose both if applicable. ® Enterprise Products. Choose platform option: Professional Desktop Qualified Devices: 1000 Qualified Users: 1000 ❑ Enterprise Online Services' Step 2. Select the Products and Quantities Enrolled Affiliate is ordering on its initial Enrollment Order. Quantity may not include any Licenses which Enrolled Affiliate has selected for optional future use, or to which it is transitioning or stepping up within enrollment term. Products for which the Enrolled Affiliate has an option to transition or step-up should be listed in Step 3. Products2 Quantity Office Professional Plus Office Pro Plus 1000 Office Pro Plus for Office 365 Office 365 Plans' Office 365 (Plan E1) Office 365 (Plan E2) Office 365 (Plan E3) Office 365 (Plan E4) Client Access License (CAL). Choose 1 Option. Core CAL, including Bridge CAL's (if applicable) Core CAL 1000 Core CAL Bridge for Office 365 Core CAL Bridge for Windows Intune Core CAL Bridge for Office 365 and Windows Intune ❑ Enterprise CAL (ECAL) ECAL ECAL Bridge for Office 365 ECAL Bridge for Windows Intune ECAL Bridge for Office 365 and Windows Intune The Client Access License selection must be the same across the Enterprise. Specify whether licensing CAL per Device or User: User Windows Desktop Windows OS Upgrade 1000 Windows VDA Windows Intone Windows Intune Windows Intune Add-on Other Enterprise Products Microsoft Desktop Optimization Pack (MDOP) EA-EASProdSelForm(US)SLG(ENG)(Oct2011) Page 1 of 3 Document X20-02722 If selecting Windows Desktop or Windows Intune option, Enrolled Affiliate acknowledges the following: a. The Windows Desktop Operating System Upgrade licenses offered through this Enrollment are not full licenses. The Enrolled Affiliate and any included Affiliates have qualifying operating system licenses for all devices on which the Windows Desktop Operating System Upgrade or Windows Intune licenses are run. b. In order to use a third party to reimage the Windows Operating System Upgrade, Enrolled Affiliate must certify that Enrolled Affiliate has acquired qualifying operating system licenses. See the Product List for details. Step 3. Indicate new Enterprise Products and Online Services Enrolled Affiliate has selected for optional future use where not selected on the initial enrollment order (above): Products2 ❑ Office Pro Plus for Office 365 ❑ Office 365 (Plan E1) ❑ Office 365 (Plan E2) ❑ Office 365 (Plan E3) ❑ Office 365 (Plan E4) ❑ Enterprise CAL (ECAL) Step-up, including Bridge CALs ❑ Windows Intune ❑ Windows Intune Add-on3 Step 4. Establish the Enrolled Affiliate's Price Level. Enrolled Affiliate must first count the quantity of Software Assurance and Licenses in each of the groups as described below by using the quantities entered in the above table. If Enrolled Affiliate does not order an Enterprise Product or Enterprise Online Service associated with an applicable Product pool, the price level for Additional Products in the same pool will be price level "D" throughout the term of the Enrollment. Do not include Bridge CALs, as License quantities are determined by the corresponding Enterprise Online Service(s). Products Price Grou• Qty from above Office Professional Plus + Office Professional Plus for Office 365 + Office 365 (Plans E2 —E4) 1 1000 Client Access License + Office 365 (Plans E1 -E4) 2 1000 Client Access License + Windows Intune Add-on + Windows Intune 3 1000 Windows Desktop Upgrade + Windows VDA + Windows Intune 4 1000 Qty Price Level 250 and Above D Product Offering/Pool Price Level Enterprise Products and Enterprise Online Services: Set price level using the highest quantity from Groups 1 through 4 Additional Product Application Pool: Set price level using quantity from Group 1 Additional Product Server Pool: Set price level using the highest quantity from Group 2 or 3 Additional Product Systems Pool: Set price level using quantity from Group 4 D D D D 1 Enterprise Online Services may not be available in all locations. Please see the Product List for a list of locations where these may be purchased. 2 Additional Products may be included on the order, but are not selected on this form. 3 Windows Intune Add-on requires purchase of Windows OS Upgrade or Windows VDA. 4 MDOP requires purchase of Windows OS Upgrade, Windows VDA, or Windows Intune. EA-EASProdSelForm(US)SLG(ENG)(Oct2011) Page 2 of 3 Document X20-02722 This form must be attached to a signature form to be valid. EA-EASProdSelForm(US)SLG(ENG)(Oct2011) Page 3 of 3 Document X20-02722 Microsoft l Volume Licensing Program Signature Form MBA/MBSA number Agreement number 01E73134 SGN- Note: Enter the applicable active numbers associated with the documents below. Microsoft requires the associated active number be indicated here, or listed below as new. For the purposes of this form, "Customer" can mean the signing entity, Enrolled Affiliate, Government Partner, Institution, orother party entering into a volume licensing program agreement. This signature form and all contract documents identified in the table below are entered into between the Customer and the Microsoft Affiliate signing, as of the effective date identified below. Contract Document Number or Code <Choose Agreement> <Choose Agreement> <Choose Agreement> <Choose Agreement> <Choose Agreement> Enterprise Enrollment <Choose Enrollment/Registration> <Choose Enrollment/Registration> <Choose Enrollment/Registration> <Choose Enrollment/Registration> Product Selection Form CTM (New) X20-02722 By signing below, Customer and the Microsoft Affiliate agree that both parties (1) have received, read and understand the above contract documents, including any websites or documents incorporated by reference and any amendments and (2) agree to be bound by the terms of all such documents. ProgramSignForm(MSSign)(NA,LatAm)ExBRA,MLI(ENG)(Oct2011) Page 1 of 1 Customer Microsoft Affiliate Name of Entity (must be legal entity name)* City of Palo Alto Signature* Printed First and Last Name* James Keene Printed Title* City Manager Signature Date* Microsoft Licensing, GP Signature Printed First and Last Name Printed Title Signature Date (date Microsoft Affiliate countersigns) Tax ID Effective Date (may be different than Microsoft's signature date) * indicates required field Optional 2nd Customer signature or Outsourcer signature (if applicable) Customer Outsourcer Name of Entity (must be legal entity name)* Signature* Printed First and Last Name* Printed Title* Signature Date* ame of Entity (must be legal entity name)* Signature* Printed First and Last Name* Printed Title* Signature Date* If Customer requires physical media, additional contacts, or is reporting multiple previous Enrollments, include the appropriate form(s) with this signature form. If no media form is included, no physical media will be sent. After this signature form is signed by the Customer, send it and the Contract Documents to Customer's channel partner or Microsoft account manager, who must submit them to the following address. When the signature form is fully executed by Microsoft, Customer will receive a confirmation copy. Microsoft Licensing, GP Dept. 551, Volume Licensing 6100 Neil Road, Suite 210 Reno, Nevada 89511-1137 USA Prepared By: Bruce Valentin bvalenti@compucom.com CITY ATTORNEY'S OFFICE APPROVED AS TO FORM SIGNATURE: DATE: ProgramSignForm(MSSign)(NA,LatAm)ExBRA,MLI(ENG)(Oct2011) Page 2 of 2 Ordinance No. XXXX ORDINANCE OF THE COUNCIL OF THE CITY OF PALO ALTO AMENDING THE BUDGET FOR THE FISCAL YEAR 2015 IN THE TECHNOLOGY FUND TO PROVIDE APPROPRIATION OF $291,617 TO TRUE -UP THE ACTUAL COST OF MICROSOFT LICENSES USED BY CITY STAFF THROUGH JANUARY 2015 ($194,470), TO FUND A ONE MONTH ADD-ON OF 1,100 MICROSOFT OFFICE 365 ONLINE LICENCES for JANUARY 2015 ($5,401), TO FUND THE ANNUAL COST OF 1,100 MICROSOFT OFFICE 365 ONLINE LICENCES ($64,746), TO FUND A 10% CONTINGENCY FOR ADDITIONAL UNFORSEEN LICENCING NEEDS ($27,000), AND TO DECREASE THE TECHNOLOGY FUND RESERVE BALANCE BY $291,617 TO FUND THE CONTRACT. 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 I I I 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. On April 23, 2012, the City Council approved a one year agreement with four one year options of the Microsoft Enterprise Agreement with CompuCom Systems, Inc, using the Terms and Conditions set forth by the County of Riverside, California, Microsoft Enterprise Agreement (MEA) (RIVCO-20800-(002-007)-12/12), in the amount of $210,617.28 per year, for Microsoft Licensing and Maintenance for 4,260 licenses; and C. As part of the agreement, the City must true -up the actual number of licenses used by City staff and pay the cost of the additional licenses on an annual basis, and in calendar year 2014 the City needed an additional 484 licenses for various Microsoft products at a cost of $194,470; and D. The City purchased 1,100 Microsoft Office 365 online licenses, instead of purchasing 1,100 Enterprise Exchange Cal licenses, to reduce full licensing costs to the City and give the City the functionality to allow staff to utilize collaboration features such as SharePoint Online, OneDrive, and OfficeWebApps at a monthly cost of $5,401 for January 2015 and an annual cost of $64,746; and E. A 10% contingency is recommended to fund additional unforeseen licensing needs ($27,000); and F. An appropriation of Two -Hundred Ninety -One Thousand Six -Hundred Seventeen Dollars ($291,617) is needed to fund the contract; and G. City Council authorization is needed to amend the 2015 budget as hereinafter set forth. 1 Revised December 4, 2014 5136 PH SECTION 2. The sum of Two -Hundred Ninety -One Thousand Six -Hundred Seventeen Dollars ($291,617) is hereby appropriated for Microsoft Licenses, and the Technology Fund Ending Fund Balance is reduced by $291,617. 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 actions taken in this ordinance do not constitute a project requiring environmental review under the California Environmental Quality Act (CEQA). // // // // // // // // // // // // // // // // // // // // // // // // // // // // // // // // // // // 2 Revised December 4, 2014 5136 PH INTRODUCED AND PASSED: Enter Date Here AYES: NOES: ABSENT: ABSTENTIONS: NOT PARTICIPATING: ATTEST: City Clerk APPROVED AS TO FORM: Mayor APPROVED: Senior Assistant City Attorney City Manager Director of Planning & Community Environment 3 5136 PH Revised December 4, 2014 :! Microsoft Program Signature Form MBA/MBSA number Agreement numbe 01E73134 Volume Licensing 000-jorob-s-684 Note: Enter the applicable active numbers associated with the documents below. Microsoft requires the associated active number be indicated here, or listed below as new. For the purposes of this form, "Customer" can mean the signing entity, Enrolled Affiliate, Government Partner, Institution, or other party entering into a volume licensing program agreement. This signature form and all contract documents identified in the table below are entered into between the Customer and the Microsoft Affiliate signing, as of the effective date identified below. Contract Document Number or Code <Choose Agreement> <Choose Agreement> <Choose Agreement> <Choose Agreement> <Choose Agreement> <Choose Enrollment/Registration> <Choose Enroliment/Registration> <Choose Enrollment/Registration> <Choose Enrollment/Registration> <Choose Enrollment/Registration> Discount Transparency Form X20-12769 EA Amendment M97 (6849237) EA Amendment M255 (6849237) By signing below, Customer and the Microsoft Affiliate agree that both parties (1) have received, read and understand the above contract documents, including any websites or documents incorporated by reference and any amendments and (2) agree to be bound by the terms of all such documents. Customer Name of Entity (must be legal entity name)* City of Palo Alto Signature* Printed First and Last Name* James Keene Printed Title City Manager Signature Date* Tax ID * indicates required field ProgramSignForm(MSSign)(NA,LatAm)ExBRA,MLI(ENG)(Aug2Q14) Page 1 of 2 Microsoft Affiliate Signature �tieros i �� �. Oft Corporation Printed First and Last Name Printed Title Signature Date (date Microsoft Affiliate countersigns i_0 0.49 201 Shirley Snyder Duly Authorized on behalf of Microsoft Corporation Agreement Effective Date (may be different than Microsoft's signature date) Optional 2"d Customer signature or Outsourcer signature (if applicable) Customer Name of Entity (must be legal entity name)* City of Palo Alto Signature* Printed First and Last Name* Printed Title Signature Date* * indicates required field Outsourcer Name of Entity (must be legal entity name)* Signature* Printed First and Last Name* Printed Title Signature Date* * indicates required field If Customer requires physical media, additional contacts, or is reporting multiple previous Enrollments, include the appropriate form(s) with this signature form. After this signature form is signed by the Customer, send it and the Contract Documents to Customer's channel partner or Microsoft account manager, who must submit them to the following address. When the signature form is fully executed by Microsoft, Customer will receive a confirmation copy. Microsoft Corporation Dept. 551, Volume Licensing 6100 Neil Road, Suite 210 Reno, Nevada 89511-1137 USA ProgramSignForm (MSS ign)(NA,LatAm)ExBRA,MLI(EN G)(Aug2pi4) Page 2 of 2 Microsoft Volume Licensing Enterprise Enrollment Discount Transparency Disclosure Form Enrollment Number Microsoft to complete forinitial term Reseller to complete for renewal 6849237 Discount Details Reseller will place an order on behalf of Enrolled Affiliate with the Total ERP Deal Value as listed below. The 'Total ERP Deal Value" is the sum of the Estimated Retail Price (ERP) for all products ordered, listed in the currency in which your Reseller transacts with Microsoft. Resellers pay a net price to purchase products from Microsoft; that price may be lower than ERP. For this Enrollment, Microsoft provided Enrolled Affiliate's Reseller an additional discount off the Reseller's net price, and that additional discount is shown in the "% Discount to Reseller Net Price Total Deal Value" column in the table below. Enrolled Affiliate's actual final price and currency will be established by a separate agreement between Enrolled Affiliate and its Reseller. Step 1. Complete all fields in the table below (required) Currency Total ERP Deal value % Discount to Reseller Net Price Total Deal Value US Dollar $146,575.00 7.5% This disclosure is valid only for the duration of the Enrollment. Reseller acknowledgement Name of Reseller CompuCom Systems Inc. Printed Name Bruce Valentin Printed Title Microsoft Licensing Specialist This form must be attached to a signature form to be valid. DiscountTransparencyDisclosureForm(WW)(ENG}(Oct2014) Page 1 of 1 Document X20-12769 Microsoft Enterprise Enrollment (Indirect) Invoice for Quoted Price Amendment ID M97 ©00-jorob-s-684 Volume Licensing This amendment ("Amendment") is entered into between the parties identified on the attached program signature form. It amends the Enrollment or Agreement identified above. All terms used but not defined in this Amendment will have the same meanings provided in that Enrollment or Agreement. Notwithstanding anything to the contrary or in addition to any terms in the Enrollment, the Enrollment 6849237 is hereby amended to add the following paragraph: The price quoted to Enrolled Affiliate's Reseller is a fixed price based on an estimated order submission date. Microsoft will invoice Enrolled Affiliate's Reseller based on this fixed price quote. If this order is submitted later than the estimated order submission date, Enrolled Affiliate's Reseller will be charged for net new Online Services subscriptions for the period during which these services were not provided. Pricing to Enrolled Affiliate is agreed between Enrolled Affiliate and Enrolled Affiliate's Reseller. Except for changes made by this Amendment, the Enrollment or Agreement identified above remains unchanged and in full force and effect. If there is any conflict between any provision in this Amendment and any provision in the Enrollment or Agreement identified above, this Amendment shall control. This Amendment must be attached to a signature form to be valid. -; diviiiptar4 r EnrAmend(Ind)(1W(ENG).(oct2011) Invoice for Quoted Price B M97 Page 1 of 1 111„ Microsoft Enterprise Enrollment (Indirect) Amendment ID M255 000-jorob-s-684 Volume Licensing This amendment ("Amendment") is entered into between the parties identified an the attached program signature form. It amends the Enrollment or Agreement identified above. All terms used but not defined in this Amendment will have the same meanings provided in that Enrollment or Agreement. For the purposes of this Amendment, "Entity" can mean the signing entity, Customer, Enrolled Affiliate, Government Partner, Institution, or other party entering into a volume licensing program agreement. Notwithstanding anything to the contrary or in addition to any terms in the Enrollment, the Enrollment is amended as follows: Office 365 for Government The following set of Terms applies to Entity when ordering Office 365 for Government Online Services. The parties agree to amend the Enrollment as follows: The following definition is added to the Enrollment: "Office 365 for Government" means. Microsoft's family of Office 365 Services that are offered as part of Office 365 Government Plans as described in this Amendment. When provisioned and delivered as part of Office 365 for Government, Exchange Online, Lync Online, SharePooint Online, and Exchange Online Archiving are provisioned in Microsoft's multi - tenant data centers for exclusive use by eligible US Federal, State, Local, and Tribal Government Customers only and offered in accordance with the National Institute of Standards and Technology (NIST) Special Publication 800-145. Microsoft refers to this offering as its Office 365 "Government Community Cloud." Other Online Services may be added to the Government Community Cloud as communicated by Microsoft. Other Office 365 -branded or separately branded Online Services that may be made available as part of or in addition to Office 365 for Government are not included in the Government Community Cloud. Additional services configuration information is available upon request. 2. Office 365 for Governments Terms Tables A and B, below, contain mappings for Office 365 for Government Online Services and their corresponding Office 365 for Enterprise Online Services ('Corresponding Online Services." Each Office 365 for Government Online Service shown below is subject to the same terms and conditions as its Corresponding Online Service, except as otherwise provided in the applicable Product List and this Amendment. Notwithstanding contrary language in the Enrollment, Reserved Licenses are not available for Office 365 for Government through the Volume Licensing Service Center but may be available through a manual request process using a License Reservation Form available from Microsoft upon request. Remainder of page intentionally left blank EnrAmend(GOV)(ENG)(Sept2014) 0365 Gov Comm Cloud B M255 Page 1 of 3 TABLE A: Office 365 for Government component Online Services- Corresponding Online Services Mapping Office 365 for Government Online Services Office 365 Equivalent Online Services Exchange Online Plan 1 forGov Exchange Online Plan 1 Exchange Online Plan 2 forGov Exchange Online Plan 2 Exchange Online Kiosk forGov Exchange Online Kiosk Exchange Online Archiving for Exchange Server forGov Exchange Online Archiving for Exchange Server Lync Online Plan 1 forGov Lync Online Plan 1 Lync Online Plan 2 forGov Lync Online Plan 2 Lync Online Plan 3 forGov Lync Online Plan 3 SharePoint Online Plan 1 forGov SharePoint Online Plan 1 SharePoint Online Plan 2 forGov SharePoint Online Plan 2 - Office 365 ProPius forGov Office 365 ProPlus TABLE B: Office 365 for Government Suites - Corresponding Enterprise Online Services Mapping Office 365 for Government - Equivalent "Enterprise Online Services" Suites Office 365 Government El former/ GI) Office 365 Government E3 (former! G3 Office 365 Government E4 former( G4 Office 365 Government K12 Office 365 Enterprise Online Services Office 365 Enter+rise El Office 365 Enter Prise E3 Office 365 Enter+rise E4 Office 365 Enter+rise K12 1 Office 365 for Government "Corresponding Online Services" Suite Orders (E1 -E4) will be captured on a separate Product Selection Form. 2 ff 365 K1 is a suite but is not an Enterprise Online Service. y � 3. Office 365 for Government Customer Requirements. Entity both (1) acknowledges that Office 365 for Government may only be used by United States Federal, State, Local or Tribal government entities, and (2) certifies that it qualifies as such and will use the Services accordingly. In the event that Entity is found not to qualify as a United States Federal, State, Local or Tribal government entity, Microsoft may terminate Entity's Office 365 for Government service. EnrArnend(GOV)(ENG)(Oct2014) 0365 Gov Comm Cloud B M255 Page 2 of 3 Enterprise and Enterprise Subscription Enrollment Product Selection Form — CTM Office 365 for Government Step 1. Select the Products and Quantities Enrolled Affiliate is adding to its Enrollment. Quantity may not include any Licenses which Enrolled Affiliate has selected for optional future use, or to which it is transitioning or stepping up within Enrollment term. Products for which the Enrolled Affiliate has an option to transition or step-up should be listed in Step 2. Products Quantity Office 365 Plans Office 365 Government El Office 365 Government E3 1,100 Office 365 Government E4 Windows Desktop Windows Intune Windows Intune Windows Intune Add-on3 Step 2. Indicate new Enterprise Products and Online Services Enrolled Affiliate has selected for optional future use where not selected on the initial enrollment order (above): Products 0 Office 365 ProPlus forGov ❑ Office 365 Government El Office 365 Government E3 ❑ Office 365 Government E4 7• Enterprise CAL (ECAL) Step-up, including Bridge CALs • Windows Intune 0 Windows Intune Add-on Except for changes made by this Amendment, the Enrollment or Agreement identified above remains unchanged and in full force and effect. If there is any conflict between any provision in this Amendment and any provision in the Enrollment or Agreement identified above, this Amendment shall control. This Amendment must be attached to a signature form to be valid. EnrAmend(GOV)(ENG)(Oct2014) 0365 Gov Comm Cloud 6 M255 Page 3 of 3 CITY OF PALO ALTO City of Palo Alto (ID # 5283) City Council Staff Report Report Type: Consent Calendar Meeting Date: 12/15/2014 Summary Title: 2755 El Camino Real (VTA Site) "Prescreening" Request Title: 2755 El Camino Real Prescreening Request: Request by Hayes Group Architects for Council Authorization to Schedule a City Council Preliminary Review ("Pre -Screening") of a proposed Rezoning from PF (Public Facility) to CC2 (Community Commercial) and amendment to the Comprehensive Plan land use designation for a vacant site at the corner of El Camino Real and Page Mill Road (the vacated VTA parking lot). From: City Manager Lead Department: Planning and Community Environment Recommendation Staff recommends that the City Council adopt a motion concurring with the request by the applicant to schedule a preliminary review of the proposed project at the corner of Page Mill Road and El Camino Real on February 2, 2015. Executive Summary The Palo Alto Municipal Code provides a process for "pre-screening" or preliminary review of proposed projects at the applicant's request with the City Council's concurrence (Section 18.79.030(c)). In this instance, the Hayes Group, acting on behalf of the property owner, has requested prescreening of a proposal to (1) rezone the former VTA parking lot at the corner of Page Mill Road and El Camino Real from PF (Public Facilities) to CC -2 (Community Commercial), (2) amend the site's Comprehensive Plan land use designation from Major institution/Special Facilities to Regional/Community Commercial, and (3) construct a four-story mixed -use project with two dwelling units, commercial space, and three levels of below grade parking facilities. The request was submitted November 4, 2014, along with "pre-screening" fees. No formal project application has been submitted for the proposed rezoning, Comprehensive Plan amendment, or architectural review, although the applicant previously (in 2013) submitted a request for rezoning to Planned Community (PC), and that application has not yet been withdrawn. (The PC project concept was a non-residential project comprised of four stories of City of Palo Alto Page 1 commercial space and three floors of below grade parking facilities.) The current conceptual project plans may be viewed at the following link: http://www.cityofpaloalto.org/gov/depts/pin/new projects/commercial and mixed use proj ects.asp. Despite the proposed rezoning to CC -2 instead of PC, the applicant intends to provide previously proposed "public benefits" as voluntary conditions of approval associated with the mixed -use project. These items include land dedications, subsurface rights, and curb gutter and sidewalk replacement, all of which will enable needed improvements to the intersection of Page Mill Road and El Camino Real. Since the applicant's PC application is on hold due to the "pause" on PC's, the applicant wishes to have the Council weigh in on an alternative proposal. If the Council is receptive to the alternative proposal for rezoning and land use designation, the applicant would withdraw the PC application and submit a formal application. Discussion The purposes of a preliminary review, as stated in PAMC Section 18.79.010, are: a. To maximize opportunities for meaningful public discussion of development projects, at the earliest feasible time, for the guidance of the public, project proponents, and City decision -makers; b. To focus public and environmental review of development projects on the issues of greatest significance to the community, including but not limited to: planning concerns, neighborhood compatibility, Comprehensive Plan consistency, economics, social costs and benefits, fiscal costs and benefits, technological factors, and legal issues. These procedures are not intended to permit or foreclose debate on the merits of approval or disapproval of any given development project; c. To provide members of the public with the opportunity to obtain early information about development projects in which they may have an interest; d. To provide project proponents with the opportunity to obtain early, non -binding preliminary comments on development projects to encourage sound and efficient private decisions about how to proceed; e. To encourage early communication between elected and appointed public officials and staff with respect to the implementation of City policies, standards, and regulations on particular development projects; and f. To facilitate orderly and consistent implementation of the City's Comprehensive Plan and development regulations. The Council is encouraged to concur with the request for Council -level prescreening but may, as an alternative and in accordance with Section 18.79.040(b), direct that the "prescreening" be conducted first or solely by the Planning and Transportation Commission, or in a joint meeting of the City Council and Planning and Transportation Commission and any other City boards City of Palo Alto Page 2 whose participation is deemed desirable. With the Council's concurrence, the prescreening will be noticed as a public study session on February 2, 2015. Resource Impact Applicants for any preliminary review submit a fee deposit, against which staff time expended to process the application is charged as a part of the City's cost recovery program. Policy Implications Policy implications of the project would be discussed during the preliminary review before Council. Environmental Review No environmental review is required for preliminary review and any comments provided to the applicant will be non -binding. However, environmental issues and the scope of environmental review required for subsequent applications could be discussed during the study session. Attachments: • Attachment A: Location Map(PDF) City of Palo Alto Page 3 Attachment A PC -2293 Legend abC Zone District Labels Zone Districts Assessment Parcel (AP) 2755 El Camino Real U JWOO 44 The C i t y f Palo Alto This map is a product of the City of Pato Alto GIS o' amtM 2013-.4417:4529 fycn19.941iVcmmn+F9mrd'Plarm9mitl "719,12-7999 ba 9dpac 54055,44059,01.14 d awllsum i15r Cty dcab Nb ammo. to RgcvwWlyWorry m55 0195904 291305 a, 959 um CITY OF PALO ALTO City of Palo Alto (ID # 5386) City Council Staff Report Report Type: Consent Calendar Meeting Date: 12/15/2014 Summary Title: Second Reading - RPP Ordinance Title: SECOND READING: Adoption of an Ordinance Establishing a Citywide Framework for Establishment of Neighborhood -Specific Residential Preferential Parking (RPP) Districts (First Reading: December 2, 2014 PASSED: 9-0) From: City Manager Lead Department: Planning and Community Environment Recommendation Staff recommends that Council adopt the proposed ordinance on second reading. Executive Summary The proposed ordinance would implement a citywide framework with the criteria and process for establishing residential preferential parking (RPP) programs in neighborhoods desiring such programs. The ordinance was unanimously approved (first reading) on December 1, 2014 after the City Council made some minor changes. These changes, which are shown in the attached version of the ordinance, are not sufficiently substantive to warrant re -review by the Planning and Transportation Commission or another first reading by Council. Attachments: • Attachment A: Ordinance (PDF) • Attachment B: Correspondence (PDF) City of Palo Alto Page 1 Attachment A - Not Yet Approved Ordinance No. Ordinance of the Council of the City of Palo Alto Amending Title 10 (Vehicles and Traffic) of the Palo Alto Municipal Code by Adding Chapter 10.50 (Residential Preferential Parking Districts) and Section 10.04.086 (Parking Enforcement Contractor) The City Council of the City of Palo Alto does ORDAIN as follows: Section 1. Chapter 10.50 (Residential Preferred Parking Districts) is hereby added to Title 10 (Vehicles and Traffic) of the Palo Alto Municipal Code to read as follows: RESIDENTIAL PREFERENTIAL PARKING DISTRICTS Sections: 10.50.010 Purpose 10.50.020 Definitions 10.50.030 RFP Designation Criteria 10.50.040 Initiation by City Council 10.50.050 Initiation by Neighborhood Petition 10.50.060 Establishment of Residential Preferential Parking Districts 10.50.070 Administration of Districts 10.50.080 Annexation of New Areas to Existing Districts 10.50.090 Modification or Termination of Districts 10.50.100 Violations and Penalties 10.50.010 Purpose. Residential preferential parking districts are intended to restore and enhance the quality of life in residential neighborhoods by reducing the impact of parking associated with nearby businesses and institutional uses. The procedures and standards in this chapter are intended to provide flexibility so that the city council may adopt, after consultation with residents and neighboring businesses and institutions, parking programs that appropriately address protect each neighborhood's unique characteristics. Residential preferential parking districts should be designed to accommodate non-residential parking when this can be done while meeting the parking availability standards determined by the city to be appropriate for the district in question. Residential preferential parking programs may be designed to reduce non-residential parking over time to give non-residential parkers time to find other modes of transportation or parking locations. 10.50.020 Definitions. The following words and phrases shall have the following meanings: 140826 jb 0131250B 1 December 9, 2014 Not Yet Approved a) "Director" shall mean the director of planning and community environment. b) "Dwelling unit" shall mean a self-contained house, apartment, stock cooperative unit, or condominium unit occupied by a single household exclusively for residential purposes. These residential purposes may include lawful home occupations. c) "Employee permit" shall mean a permit issued for to an employee working at a business located within an RPP District or as defined in an RPP district specific resolution. d) "Guest permit" shall mean a permit issued to a Resident on an annual basis for use by a person visiting a residence in an RPP District or for workers providing services such as caregiving, gardening, repair maintenance and construction, to the Resident. The number of Guest permits issued to Residents shall be specified in administrative regulations adopted by the Director. e) "Non-resident vehicle" shall mean a vehicle operated by a person whose destination is not to a residence within the Residential Preferential Parking District. f) "Resident" shall mean a natural person living in a dwelling unit in an RPP District. g) "Residential Preferential Parking District" or "RPP District" shall mean a geographical area in which the city council has established a preferential parking permit system pursuant to California Vehicle Code section 22507. h) "Visitor permit" shall mean a temporary 24 -hour permit issued to a Resident for use by a person visiting a residence in an RPP District. 10.50.030 RPP Designation Criteria The council may designate an area as a Residential Preferential Parking District based upon the following criteria: (1) That non-resident vehicles do, or may, substantially interfere with the use of on -street or alley parking spaces by neighborhood residents; (2) That the interference by the non-resident vehicles occurs at regular and frequent intervals, either daily or weekly; (3) That the non-resident vehicles parked in the area of the proposed district create traffic congestion, noise, or other disruption (including shortage of parking spaces for residents and their visitors) that disrupts neighborhood life; (4) Other alternative parking strategies are not feasible or practical. 10.50.040 Initiation by City Council The city council may, by motion or resolution, initiate consideration of a RPP District by directing staff to undertake the analysis and outreach process set forth in Section 10.50.050(d) and (e). 1030.050 Initiation by Neighborhood Petition Residents may request the formation of an RPRP District in their neighborhood. The request shall be made, and considered, in the following manner: (a) Form of Application. 140826 jb 0131250B 2 December 9, 2014 Not Yet Approved (1) The director shall establish a standard form for the application for the formation of a new RPP District, as well as a list of submittal requirements for use by interested residents. These requirements shall include a narrative describing the nature and perceived source of non-residential parking impact, as well as suggested district boundaries. The director shall also approve a standard form for use in demonstrating resident support for the application. (2) Residents shall initiate a request for establishment of an RPP District by neighborhood petition by completing the official application form. (3) Residents are encouraged to consult with the employers and employees thought to be the source of the parking impact as they develop their proposals. (b) Timing and Review of Applications. Each calendar year, the Director of Planning and Community Environment shall review all applications received prior to March 31st of that year to determine whether the RPP District criteria established in this Chapter are met. (c) Prioritization of Applications. Applications determined by the Director to meet the criteria in paragraph (b) above shall be presented to the Planning and Transportation Commission. The commission shall review the requests and recommend to the director which proposal or proposals should be given priority for review and possible implementation in the current calendar year. In making its recommendations, the commission shall consider the severity of non-residential parking impact, the demonstrated level of neighborhood support, and the staff resources needed to process requests. (d) Staff Review of Applications and Community Outreach. Once an application has been selected for council consideration during the current calendar year, staff shall promptly review the application, gather additional information and conduct a community outreach program. At a minimum the review process shall include the following: (1) The City shall complete parking occupancy studies to quantify the nature of the problem identified in the petition. Data shall be collected when schools in the Palo Alto Unified School District and Stanford University are in session, unless these institutions are irrelevant to the problem to be addressed. (2) Upon completion of the consultation and outreach process, the city attorney shall prepare a draft resolution containing the proposed boundaries and hours of enforcement. Staff shall undertake a survey of resident support within the RPP District. The results of this survey shall be included in and reported to the planning and transportation commission and the city council. (e) Planning and Transportation Commission Review. Staff shall bring the proposed RPP District to the planning & transportation commission no later than September of the calendar year in which consideration began. The commission shall review the draft resolution at a noticed public hearing and make a recommendation 140826 jb 0131250B 3 December 9, 2014 Not Yet Approved to the city council regarding the RPP District. This recommendation may include proposed modifications of the boundaries. The commission's recommendation shall be forwarded to the city council no later than September 30th. 10.50.060 Establishment of Residential Preferential Parking Districts (a) Adoption of Resolution Establishing District. Following the completion of the procedures described in Section 10.50.050, the City Council shall hold a public hearing on a proposed resolution to establish the residential preferential parking district. The resolution may specify a trial period of up to two years. Any such trial period shall begin running after the signs have been posted and permits issued. The council may adopt, modify, or reject the proposed resolution. (b) Resolution. The resolution shall specify: (1) The findings that the criteria set forth in Section 10.050.030 have been met. (2) The term of the trial period, if applicable. (3) The boundaries and name of the residential preferential parking district. The boundary map may also define areas which will become subject to the regulations of the residential preferential parking district in the future if the council approves a resident petition for annexation as provided in Section 10.50.080 below. (4) Hours and days of enforcement of parking regulations and other restrictions that shall be in effect for non -permit holders, such as two-hour parking limits, overnight parking limits, or "no re -parking" zones. (5) The number of permits, if any, to be issued to merchants or other non- residential users, which number may be scheduled to reduce over time. (6) Resident permit rates which are set by City Council policy will be uniform across each district. (7) Such other matters as the Council may deem necessary and desirable, including but not limited to fee rates and whether non-residential parking permits are allowed to be issued and transferred. (c) Permanent Adoption. Before the expiration of the trial period, if applicable, the city council shall hold a noticed public hearing and determine whether the RPP District should be made permanent as originally adopted, modified or terminated. The council's action shall be in the form of a resolution. 10.50.070 Administration of Districts (a) Issuance and Fees. (1) No permit will be issued to any applicant until that applicant has paid all of his or her outstanding parking citations, including all civil penalties and related fees. (2) A residential parking permit may be issued for a motor vehicle if the following requirements are met: A. The applicant demonstrates that he or she is currently a resident of the area for which the permit is to be issued. 140826 jb 0131250B 4 December 9, 2014 Not Yet Approved B. The applicant demonstrates that he or she has ownership or continuing custody of the motor vehicle for which the permit is to be issued. C. Any motor vehicle to be issued a permit must have a vehicle registration indicating registration within the area for which the permit is to be issued. (3) Visitor or guest parking permits may be issued for those vehicles or to those individuals or households that qualify for those permits under the resolution establishing the RPP-I4 District. (4) Employee parking permits may be issued to those individuals and for those vehicles that qualify for such permits under the resolution establishing the RPP District. (b) No Guarantee of Availability of Parking. A parking permit shall not guarantee or reserve to the permit holder an on -street parking space within the designated residential preferential parking zone. (c) Restrictions and Conditions. Each permit issued pursuant to this Section shall be subject to each and every condition and restriction set forth in this Chapter and as provided for in the resolution establishing the specific RPP District, as may be amended from time to time. The issuance of such permit shall not be construed to waive compliance with any other applicable parking law, regulation or ordinance. (d) Exemptions. The following vehicles are exempt from RPP District parking restrictions in this Chapter: (1) A vehicle owned or operated by a public or private utility, when used in the course of business. (2) A vehicle owned or operated by a governmental agency, when used in the course of official government business. (3) A vehicle for which an authorized emergency vehicle permit has been issued by the Commissioner of the California Highway Patrol, when used in the course of business. (4) A vehicle parked or standing while actively delivering materials or freight. (5) A vehicle displaying an authorized exemption permit issued by the City of Palo Alto. (6) A vehicle displaying a State of California or military -issued disabled person placard or license plates. (7) A vehicle parked for the purpose of attending or participating in an event taking place at a school within the Palo Alto Unified School District or another event venue within the RPP District, provided that the vehicle is parked within two blocks of the venueschool, the venue school has requested and received approval from the City at least fourteen days before the event date, and the venueschool distributes notices to all addresses within a two - block radius of the venueschool. The RPP District Resolution shall specify the covered venues and number of permitted events per year.Excmpt parking pursuant to this subsection is available for no more than five events per school year for each school. 140826 jb 0131250B 5 December 9, 2014 Not Yet Approved (8) All vehicles are exempt from parking restrictions pursuant to this Chapter on the following holidays: January 1, July 4, Thanksgiving Day, and December 25. (e) Authority of Staff a. The director is authorized to adopt administrative regulations that are consistent with the purposes of this Chapter. Prior to adoption the director shall conduct a noticed public meeting soliciting input on such guidelines. b. The Police Department or private parking enforcement contractor as approved by the Chief of Police shall have the authority to enforce the administrative regulations established pursuant to this Chapter. 10.50.080 Annexation of New Areas to Existing Districts Residents of any block may petition the director for annexation into a contiguous RPP District. The petition shall be on forms provided by the department. If the petition meets the criteria established in administrative regulations adopted by the director, a resolution annexing it to the RPP District shall be prepared by the city attorney and submitted to the city council, together with the director's recommendation on the proposed annexation. The city council may approve, deny, or modify the annexation. 10.50.090 Modification or Termination of Districts (a) Opting out. After final adoption of an RPP District, Residents may file an application with the director to opt out of the RPP District. The minimum number of blocks and percentage of units supporting the opt -out shall be specified by the director in the administrative guidelines. Applications for opting out shall be made in the form and manner prescribed by the director and shall be acted up on by the director. Any opt out application shall be filed within ninety (90) days after council adoption of the resolution establishing the RPP District. (b) Dissolution. The city council following a noticed public hearing may adopt a resolution dissolving the RPP District: (1) Upon receipt and verification of a petition signed by 50% or more of all the households within an approved RPP District boundary, or (2) Upon findings by the City Council that the criteria for designating the RPP District are no longer satisfied. 10.50.100 Violations and Penalties 1 (a) No person shall stop, stand or park a vehicle adjacent to any curb in a residential preferential parking zone in violation of any posted or noticed prohibition or restriction, unless the person has a valid and current residential preferential parking permit, visitor permit, guest permit or employee permit for that vehicle, or is otherwise exempt. Violations of this sub -section shall be punishable by a civil penalty under Chapter 10.60.010. 140826 jb 0131250B 6 December 9, 2014 Not Yet Approved (b) No person shall sell, rent, or lease, or cause to be sold, rented, or leased for any value or consideration any RPP District parking permit, visitor permit or guest permit. Upon violation of this subsection, all permits issued to for the benefit of the dwelling unit or business establishment for which the sold, rented, or leased permit was authorized shall be void. Violation of this sub -section (b) shall be punishable as an infraction misdemeanor. (c) No person shall buy or otherwise acquire for value or use any RPP District parking permit, guest permit or visitor permit except as provided for in this chapter. Violation of this sub -section (c) shall be punishable as an infraction misdemeanor. SECTION 2. Section 10.04.086 (Parking Enforcement Contractor) of Title 10 (Vehicles and Traffic) of the Palo Alto Municipal Code is hereby added to read as follows: 10.04.086 Parking Enforcement Contractor "Parking Enforcement Contractor" means any duly qualified company that the City has entered into a contract with and that has been approved by the Chief of Police to provide enforcement of Chapter 10.50 relating to Palo Alto Municipal Code infractions only in parking zones. Enforcement includes both the issuance and processing of citations for RPP District parking violations. SECTION 3. Section 10.08.015 (Authority of Parking Enforcement Contractor) of Title 10 (Vehicles and Traffic) of the Palo Alto Municipal Code is hereby added to read as follows: 10.08.015 Authority of Parking Enforcement Contractor The City may enter into a contract with a duly qualified company, approved by the Chief of Police, to provide enforcement of Chapter 10.50 relating to RPP District parking violations (as permissible by the Palo Alto Municipal Code). SECTION 4. Section 10.60.010 (Parking violations punishable as civil penalties) of Title 10 (Vehicles and Traffic) of the Palo Alto Municipal Code is amended to read as follows: 10.60.010 Parking Violations Punishable as Civil Penalties Except as otherwise provided, violations of any provision of Chapters 10.36, 10.40, 10.44, 10.46, and 10.47, and 10.50 of this Title 10 (hereinafter referred to as a "parking violation") shall be punishable by a civil penalty (hereinafter referred to as a "parking penalty"). These parking penalties, together with any late payment penalties, administrative fees, and other related charges shall be established by ordinance or resolution of the city council. 140826 jb 0131250B 7 December 9, 2014 Not Yet Approved SECTION 5. CEQA. This ordinance is exempt from the requirements of the California Environmental Quality Act (CEQA) pursuant to Section 15061(b)(3) of Title 14 of the California Code of Regulations since it can be seen with certainty that there is no possibility the adoption and implementation of this Ordinance may have a significant effect on the environment and Section 15301 in that this proposed ordinance will have a minor impact on existing facilities. SECTION 6. 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 7. This ordinance shall be effective on the thirty-first date after the date of its adoption. INTRODUCED: PASSED: AYES: NOES: ABSENT: ABSTENTIONS: NOT PARTICIPATING: ATTEST: Interim City Clerk Mayor APPROVED AS TO FORM: APPROVED: Senior Assistant City Attorney City Manager Director of Planning & Community Environment 140826 jb 0131250B 8 December 9, 2014 Attachment B - Carnahan, David CITY C1 YC CLERK'S S O OFFICE From: Minor, Beth 14 DEC -8 All 8:18 Sent: Thursday, December 04, 2014 10:35 AM To: Lunt, Kimberly; Carnahan, David Subject: FW: M.Hodos Comments @ Tuesday Night City Council Meeting Attachments: Comments to City Council Re RPP.pdf; ATT00001.htm For Doc Letters From: Michael Hodos [mailto:mehodos@mac.com] Sent: Thursday, December 04, 2014 10:19 AM To: Minor, Beth Subject: M.Hodos Comments @ Tuesday Night City Council Meeting Hi Beth: Attached is the verbatim statement I made to the City Council on Tuesday evening during the Public Comment portion of agenda item 14. It would be greatly appreciated if you would include it with the minutes for the record. Thanks! Michael mehodos@mac.com Comments to City Council Re: RPP Resolution December 2, 2014 Council Members: • My name is Michael Hodos. I've lived at same address in Professorville on Bryant Street between Addison and Channing since 1978. • I was one of six DTN and DTS resident representatives on the Stakeholder Group that met with five downtown business representatives to develop an RPP program that would improve the quality of life in the residential neighborhoods by reducing non-resident parking to an acceptable level. • Those hours -long meetings went on from March to October as we worked in good faith to develop the key elements of the resolution you now have before you. It's the result of an impressive number of compromises. • The resolution is not perfect! In fact, I think's safe to say that it was extremely rare that all of us agreed without reservation on any given decision. Nevertheless, an impressive majority now support what was ultimately submitted. • I'm here on behalf of my colleagues to say that it's time to put something in place to see what can be learned. We hope the 6 -month Phase 1 component will provide essential data that will in turn help ensure the success of Phase 2. • As my neighbor and fellow Stakeholder Richard Brand opined recently, this resolution is like an arch: an adjustment to any one component risks having the entire structure fall apart! Please don't let this happen! Michael Hodos 944 Bryant Street Carnahan, David CITY OF PALO ALTO, CA CITY CLERK'S OFFICE From: Laurie Phillips <lauriecdphillips@gmail.com> 114 DEC -8 AM 8: 12 Sent: Friday, December 05, 2014 9:28 AM To: Shepherd, Nancy (internal); Keene, James; jamie.rodriguez@cityofpaloalto.org; Gitelman, Hillary; Council, City Cc: Julie O'Grady Subject: Community Center Parking Hello, Thank you for your recent communications with several Community Center neighbors and myself. I understand that the city is addressing parking in several neighborhoods, and know that this is both a challenge and an opportunity to address the needs of residents, employees, and visitors to Palo Alto. I welcome the opportunity to be a contact person representing my neighborhood. Please let me know how I can become more involved. Thank you, • Laurie Phillips 1405 Hopkins Avenue 650-387-7013 Carnahan, David CITY OF PALO ALTO, CA r ITY (I A'RK'S (Warr' From: Sent: To: Subject: City Council Members, Elaine Uang <elaine.uang@gmail.com> Wednesday, December 03, 2014 3:39 PM Council, City Thank you! 14 DEC -8 AM 8: 15 A big belated THANK YOU for your leadership last night and taking a big step toward better parking management (and hopefully traffic reduction) in Palo Alto, and downtown. We all know it ain't perfect but thank you for getting this started. Look forward to seeing it happen and to continued progress and tweaks in the coming year. Best, Elaine CITY OF PALO ALTO City of Palo Alto (ID # 5361) City Council Staff Report Report Type: Consent Calendar Meeting Date: 12/15/2014 Summary Title: Review of City Owned and Donated Properties and Leased Use of City land Title: Recommendation from Policy and Services Committee: (a) Review and Accept Inventory of Donated City Owned Properties; (b) Review and Make No Changes to Policy and Procedure 1-11 (Leased Use of City Land/Facilities) From: City Manager Lead Department: Administrative Services RECOMMENDATION The Policy and Services Committee and Staff recommend that the Council review and approve the following recommendation: 1. Review and accept the attached Inventory of Donated City -Owned Properties, which will be posted on the City's website as directed by Council 2. Review and make no changes to Policy and Procedure 1-11/ASD (Leased Use of City Land/Facilities) BACKGROUND AND DISCUSSION On November 13, 2014 the Policy and Services Committee passed by a vote of 3 to 0 the above recommendations. The Committee reviewed, accepted and purposed the following modifications: 1. Modification to City — Owned Properties Table a. Remove the "Acquired by" column b. Create a new column to display the name of the donor and the date donated c. Remove the columns for comprehensive Plan and zoning in the table d. Use a hyperlink to connect the properties to maps e. Add a footnote on rows 9 and 10 stating that to state that the bulk of Foothill Park area was purchased by the City City of Palo Alto Page 1 The committee instructed staff not to order additional title reports to review the deeds for other city owned properties. The information including the inventory of Donated City -Owned Properties presented to Policy and Services Committee that evening may be found in Attachment A of the November 13, 2014 (5228) staff report. Please note the following corrections and additions to Attachment A of CMR #5228 as requested by the Committee and initiated by staff. The Committee also reviewed Policy and Procedure 1-11 (Leased Use of City Land/Facilities) and discussed whether amendments were needed. The Committee voted unanimously to recommend that Council make no changes to Policy and Procedure 1-11. Corrections: cell in table located in Row 6, Column 6 "Land Size should be replaced with the correct footage, and the comment in Row 6 column 13 should be deleted. Attachments: • ATTACHMENT A: CMR 5228 (PDF) • ATTACHMENT B: 11-13-14 PS Final Minutes(DOCX) City of Palo Alto Page 2 ATTACHMENT A CITY OF PALO ALTO City of Palo Alto (ID # 5228) Policy and Services Committee Staff Report Report Type: Agenda Items Meeting Date: 11/13/2014 Summary Title: Review of City Owned Surplus Properties Disposition and Lease Procedures Title: Referrals from Council Related to City Real Property Matters: (a) Review and Accept Inventory of Donated City Owned Properties; (b) Review and Recommend Revisions to Policy and Procedure 1-48 (Sale/Transfer of Surplus City Owned Real Property), Including Development of Procedures for Addressing Unsolicited Offers to Lease or Purchase City Land; and (c) Review and Recommend Revisions to Policy and Procedure 1-11 (Leased Use of City Land/Facilities) From: City Manager Lead Department: Administrative Services RECOMMENDATION: Staff recommends that the Policy and Service Committee: 1. Review and accept the attached Inventory of Donated City -Owned Properties, which will be posted on the City's website as directed by Council; 2. Review and Consider Potential Revision to Policy and Procedures 1-48/ASD (Procedure for Sale/Transfer of Surplus City —Owned Real Property); 3. Consider recommending an amendment to Policy and Procedure 1-48 to specifically address unsolicited offers to lease or purchase City owned properties; 4. Review policy and Procedure 1-11/ASD (Leased Use of City Land/Facilities) and consider whether amendments are needed. EXECUTIVE SUMMARY The Palo Alto Municipal Code and Palo Alto's administrative Policies and Procedures manual contain sections regarding the sale of City owned surplus property and leasing procedures. The procedures will be discussed and reviewed in order to assure that they provide the appropriate guidelines to dispose of surplus property or execute leases of City property. BACKGROUND On September 8 and 15, 2014, the Council reviewed and discussed the Santa Clara County Civil Grand Jury Report "Reduced Transparency and Inhibited Public Input and Scrutiny on Important City of Palo Alto Page 1 1 ATTACHMENT A Land Use Issues." On the 15th, the Council approved the City's response to that report. In addition, the Council referred certain matters relating to real property to the Policy and Services Committee for further review and recommendations, including receipt of an inventory of donated lands and a review of Policy & Procedures 1-11 and 1-48. DISCUSSION Land Inventories Inventory of Lands Donated to City Using on -site or easily accessible records, Staff has developed a list of real properties that have been donated to the City (Attachment A). This list is reasonably complete to our knowledge, but there remains a possibility that it omits some properties that may have come into City ownership over time through donation. To establish a comprehensive and definitive list, Staff would need to purchase and review title reports and recorded deeds on each and every City - owned property to establish its ownership history and the manner of initial conveyance to the City. Staff estimates this effort would cost $500 and $750 per property report (for more than 100 plus properties), plus extensive staff time for research and analysis. Inventory of Purchased and Donated City Owned Real Property It is staff's goal to include the information on donated properties within a public database that will include the majority of City owned real property, both donated and purchased. (Certain security -sensitive information will not be included, as discussed below.) Many cities post and maintain an inventory of city owned properties on their websites. The Real Estate Division of ASD has been working on developing a database of City owned real property for public use that will be posted and maintained on the City's website. The property database will show the current real estate assets that are held by the City in addition to other pertinent information. The majority of the City owned properties are open and available for public use, including parks, libraries, museums, community centers, parking areas and publicly -accessible administrative offices. These lands will appear on the posted inventory. There are other City lands and facilities that support and serve the public but are not generally open for public use. These include lands containing utility infrastructure and equipment, fire stations and police stations. In some cases — such as facilities housing gas, electric and water infrastructure — disclosing details regarding location and use of facilities may expose the City and its residents to security risks. The Real Estate Division is working with the Utilities Department to determine which properties can or should be included in the proposed database. The draft proposed database to be posted on City's website may include information regarding Assessor's Parcel Number, address, size, use, zoning, tenants, and links to parcel maps as shown City of Palo Alto Page 2 2 ATTACHMENT A on the draft table (illustration only) below. The property database will need to be updated periodically to ensure the accuracy of the disclosed information. # APN ADDRESS DESCRIPTION TYPE LAND SIZE BUILDING SIZE ZONING ACQUIRED BY LEASED Parcel Map COMMENTS 26 120-03-084 520 Cowper and Webster/ b/n University and Hamilton Parking Lot "J" Parking Structure 1.38 ac 209,118 sf PC3499 Purchase No new last partition of APN - former 034 27 120-06-039 1130 Middlefield Residential Lot Residential Lot 0.13 ac N/A R-1 Purchase No 28 120-06-076 1142 Middlefield Residential Lot Residential Lot 0.13 ac N/A R-1 Purchase No 29 120-14-016 251 Waverly Street Johnson Park Park 2.06 ac N/A PF Purchase No 30 120-14-088 351 Lytton Parking Lot Parking Lot 0.48 ac N/A PF Purchase No 31 120-14-095 Bryant and Lytton Portion of Parking Lot Parking Lot 0.08 ac N/A PF Purchase No 32 120-15-073 Cowper and Hamilton Parking Lot "H" Parking Lot 0.07 ac N/A PF Purchase No Sale of City Land Policy and Procedure (P&P) 1-48/ASD (Procedure for Sale/Transfer of Surplus City —Owned Real Property' The City has a Policy and Procedure addressing the sale of surplus city -owned real property (P&P 1-48/ASD), (Attachment B). The P&P specifies two methods by which potentially -surplus properties are identified: (a) periodic inventory review by the City's Real Property Manager (RPM) , and (b) notification from City departments to the Real Property Manager that a property is no longer of use. The P&P establishes procedures for considering such properties. The Real Property Manager notifies all City departments that the property may be available for other department use, and notifies public agencies that it may be available for sale. The property(ies) question is brought to Council for a determination whether to retain the property or dispose of it using "an open and competitive bid process," including an independent appraisal and formal Bid Proposal Package. Council approves the Bid Proposal Package and later, after bids are received and evaluated, either rejects all bids or accepts a bid that best serves the public interest. Unsolicited offers to lease or purchase City owned properties The majority of City owned land and properties are in use as public parks, open space, public facilities, parking lots and structures, and sites that are used by Utilities Department. City of Palo Alto Page 3 3 ATTACHMENT A Presently, there is not a specific, written policy regarding the process for considering and resolving unsolicited, outside offers to lease or purchase City owned properties. While it is not common for the City to receive such offers, it does occur from time to time. When inquiries or proposals concerning the lease or purchase of City owned property are received by staff, it is staff's practice to refer them to the Real Estate Division for review. Any inquiries about dedicated parkland, open space or utility sites are rejected immediately. Other proposals, if credible and warranting further evaluation and discussion, are forwarded to the City Manager, City Attorney and ultimately Council for further review. If such a review suggested that it may be in the public's interest to designate a property as surplus and consider it for sale, the property would be processed through the steps in P&P 1-48, including an independent appraisal, notifying other public agencies and initiating an "open and competitive bid process" to consider the property for sale. The Committee may wish to recommend that the Council amend P&P 1-48 to acknowledge the potential for an unsolicited offer and clarify procedures that staff should use to address and resolve such offers. Lease of City Land The City Charter and Municipal Code The Palo Alto Charter provides that the Council may lease or sub -lease lands owned or leased by the City, for terms up to a maximum of fifty years. (Charter, Article VII, Sec. 7.) By ordinance, the Council has delegated to the City Manager authority to rent or lease City real property for any amount for up to three years. (Municipal Code section 2.30.210(h).) The Manager may rent or lease property at Cubberley Community Center for up to five years. (Municipal Code section 2.30.210(h).) Review policy and Procedure 1-11/ASD (Leased Use of City Land/Facilities) Policy and Procedure 1-11/ASD (Attachment C) establishes procedures for the lease of City real property and facilities. P&P 1-11 establishes procedures for leasing City property. It specifies that use of City property by profit and/or non-profit entities is appropriate only when such development and operation will further public use or provide a public benefit. The policy calls for consistency with existing City policies, plans, services and/or procedures, and requires open competitive and/or bid processes that will be used to solicit proposals or provide opportunities to others prior to awarding an option or lease. The policy does not apply to short-term interim leases where no significant change in use is proposed. Policy and Procedure 1-11/ASD provides a detailed guideline and process to execute options to lease or lease City owned properties. The RFP process in the Public Notification section calls for announcement in the local newspaper of general circulation. The City can advertise its available real estate inventory through direct marketing techniques such as request for proposals (RFPs), advertising, exposure through real estate commercial websites such as Costar and LoopNet, City of Palo Alto Page 4 4 ATTACHMENT A and multiple listing services. In addition, listings can be posted on the City's website for a certain time period to gain maximum marketing exposure. Survey of Other Jurisdictions A review of the policies and procedures covering surplus disposition and leasing of real assets owned by government and public agencies reveals many similarities and consistencies (Attachment D). Properties owned by public agencies that are not utilized and needed in daily operations are given consideration to be used for park, recreational, educational, and affordable or public housing. They are offered to other public agencies and if there no takers, they are placed for sale in the market place to the highest bidders. In regards to leasing City owned properties or renting space from other landlords, the authority given to City Managers without council authorization ranges from one to three years. Long term lease agreements (more than three years) are typically approved by majority vote of the elected officials. TIMELINE Staff will continue to work on the property database table and report the results back to the Policy & Services Committee in the early part of 2015. RESOURCE IMPACT Depending on the direction given, there will be a cost to acquire title reports for the City owned properties. The staff time to develop the database and conduct additional research has been budgeted. POLICY IMPLICATIONS Review of the existing City's Policy and Procedures regarding the surplus property and leasing process is consistent with policies and programs in the Comprehensive Plan promoting value enhancement of City's assets for the purpose of public benefits. ENVIRONMENTAL REVIEW A review of the existing City Policies and Procedures regarding surplus real property and leasing does not constitute a project for purposes of the California Environmental Quality Act (CEQA). Attachments: • Attachment A - Gifted City Properties Table (DOCX) • Attachment B - Procedure for Sale/Transfer of Surplus City Owned Real Property (PDF) • Attachment C - Leased Use of City Land/Facilities (PDF) • Exhibit D - Property Use Policies Government Agencies (DOCX) City of Palo Alto Page 5 5 ATTACHMENT A Attachment A Inventory of Donated City Lands NO # ASSESSOR PARCEL NUMBER ADDRESS DESCRIPTION TYPE LAND SIZE BUILDING SIZE COMP PLAN ZONING ACQUIRED BY LEASED PARCEL MAP LINK COMMENTS 003-28-044 851 Center Drive, at Channing Avenue Eleanor Pardee Park Park 9.6 ac+/- N/A PF Gift No 2 003-46-001 1120 Hopkins (777 Embarcadero Road/1276 Harriett Ave./1305 Middlefield/1451 Middlefield) Rinconada Park/Lucie Stern Community Center/Children's Library/Theatre, Zoo, Boy Scouts/1305 Middlefield City Facility 18.45 ac 1,907 sf + 2,433 sf decking 3,360 sf Children's library; 710 Melville 17,748 sf; LS Wing 13,865 sf; Children's Museum 11,922 sf PF Gift Community Services, Children's Library, Boy Scouts 3 003-46-006 799 Embarcadero Road Palo Alto, CA 94303 Fire Station #3 City Facility 0.085 acres 3,506 sf+216 sf storage bldg. = 3,722 sf PF Gift PAFD, Sprint 4 003-47-020 1213 Newell Rd./1313 Newell Cultural/Art Center/Main Library City Facility 5.17 acres 26,582 sf library; CC - 29,994 sf PF Gift Community Services, Library 5 120-16-099 351 Horner Rhona Williams Property Lease -Long Term 0.60ac 5,596sf PF Gift Museum of American Heritage 6 120-17-088 915 Scott Ave. Scott Mini -park Park 0.26 ac per GIS (0.04 ac per PA web site) 1,257,652 sf PF Gift No sf from GIS unrealistic - lot beside the Post Office 7 124-07-032 474 Embarcadero Lawn Bowling Green Club Park Park 1.62 ac (0.12 ac per GIS, (-)Seale addition) 1,950 sf PF Gift PALBC, Inc. 8 124-07-040 1431 Waverley St. Gamble Garden Center Lease -Long Term 2.38 ac 7,662sf PF Gift Elizabeth F. Gamble Garden non-profit Horticultural Foundation 9 182-46-006 Foothill Park Foothills Park- Reservation Parcel (1996) Park/Foothills 7.70 ac N/A Gift PF Gift No Deed restriction Conservation use 10 182-27-003 Foothills Park Foothills Park at Moody Rd. and Central Dr. Park/Foothills 28 ac+/- N/A PF Gift Nt, 1 6 AttachmeA1CHMENT A POLICY AND PROCEDURES 1-48/ASD Effective: October 2006 PROCEDURE FOR SALE/TRANSFER OF SURPLUS CITY -OWNED REAL PROPERTY POLICY STATEMENT It is the policy of the City of Palo Alto that the disposal of City real property be accomplished through a public bid process. The process involves notification of City departments and public agencies prior to the City Council declaring any property to be surplus. To assure the highest return for sale of its assets, the process involves an appraisal of fair market value and an open and competitive bid process. The City Council may reject any or all bids and accept that bid which will, in its opinion, best serve the public interest. PROCEDURE A. The Real Property Manager shall identify potential surplus City real property by: 1) Conducting periodic reviews of the Real Property Inventory; and/or 2) Notification from City departments which no longer have use for a particular property. B. Upon identifying a potential surplus real property, the Real Property Manager shall: 1. Notify City departments that the property may be available for their use, subject to Council approval as outlined below. 2. In accordance with Government Code Section 54222, notify public agencies of the property's availability for sale. C. The Real Property Manager shall forward information about the property together with the responses from other departments and the public agencies referred to in #B2 above to the Council with a staff recommendation to: 1. Formally declare the real property surplus and instruct the Real Estate Division to dispose of the property using open bid procedures; or 2. Transfer control of the property to one or more other City departments; or 3. Negotiate an agreement with one of the public agencies referred to in #B2 above. 7 ATTACHMENT A POLICY AND PROCEDURES 1-48/ASD Effective: October 2006 D. Should the decision be to declare the property surplus and sell it by bid: 1. The Real Estate Division shall appraise (or have appraised) the property to determine a minimum bid. 2. The Real Estate Division shall prepare a "Bid Proposal Package" to be placed on the Council Consent Calendar for approval. 3. Upon approval by the Council, the Real Estate Division shall: a. Place an ad in the Real Estate Section of the local newspapers. b. Send flyers advising of the offering to all interested parties and persons on the Real Estate Division "Surplus Property Mailing List." c. Send the Proposal Package to persons expressing further interest in the offering. 4. The bid opening shall be scheduled by the Real Property Manager and the Manager, Purchasing and Contract Administration. At the bid opening the Purchasing Division shall: b. Open Sealed Bids c. Accept oral bidding beginning at 5% above the highest written bid. 5. The Real Estate Division shall forward the results of the bidding to the Council with staff recommendation regarding an award of deed. 6. The City Council may reject any or all bids and accept that bid which will, in its opinion, best serve the public interest. Note: Questions and/or clarifications of this policy should be directed to the Administrative Services Department. 8 AttaChmItieHMENT A POLICY AND PROCEDURES 1-11/ASD Revised: October 2006 LEASED USE OF CITY LAND/FACILITIES POLICY STATEMENT The purpose of this policy is to ensure that decisions regarding use of City real property are made in the best interests of the citizens and taxpayers of Palo Alto. The development and operation of facilities by others (profit and/or non-profit entities) on City - owned property is appropriate only when such development and operation will further public use or provide a public benefit. Such facilities and operations must be consistent with existing City policies, plans, services and/or procedures. Open competitive and/or bid processes will be used to solicit proposals or provide opportunities to others prior to awarding an Option to Lease. This policy shall not apply to short-term interim leases where no significant change in use is proposed PROCEDURE A. Criteria for Permitting Leased Use of City Property by Others The proposed leased use must be compatible with, incidental to, and/or supportive of, the primary public use of the City -owned property, e.g. a snack stand in a district park, or the pro shop and coffee shop at the Golf Course. In the event of park dedicated land, the proposed use shall be consistent with the provisions set forth in the Charter of the City of Palo Alto, Article VIII, and the Palo Alto Municipal Code (PAMC), Sections 22.04 and 22.08 et. seq., which require that uses of park dedicated land be park, playground, recreation or conservation related uses. B. Option to Lease In all cases where there are significant approval requirements (significant tenant construction and/or rehabilitation), financing requirements (fundraising drives, obtaining financing from lending institutions, etc.), or other tenant pre -operation conditions, the Council shall award an Option to Lease setting forth all pre-construction/operation conditions as conditions to the tenant's obtaining the lease. The option term shall be for a reasonable period of time consistent with the nature of the conditions of the option. Prior to awarding an Option to Lease for a specific use, consideration shall be given to particular information. (Specific application and the relative importance of each of the following considerations will vary from site to site and by specific uses proposed.) Applications for leased use shall provide the following information: 1. The extent to which the proposed leased use satisfies a public need (e.g., by a significant number of Palo Alto residents and taxpayers) for the proposed services and/or uses. Page 1 of 4 9 ATTACHMENT A POLICY AND PROCEDURES 1-11 /ASD Revised: October 2006 2. Consistency of the proposed use with existing City goals and objectives (set forth in the Comprehensive Plan, Zoning Ordinance, Municipal Code, and general municipal services objectives). 3. Consistency of the proposed use with existing plans for the property or facility (e.g., an approved Master Plan). 4. The impact of the proposed use (compatible services and uses, traffic impacts, noise impacts, energy conservation, etc.) upon: a. the immediate neighborhood; b. the community generally; and c. the environment (The proposed tenant shall, during the Option period, satisfy the City's environmental review process.) 5. The degree of public access, including City shared use of the facility or co- sponsorship of programs and/or services, i.e. the numbers of people, especially Palo Alto residents and taxpayers, that will be served by the proposed use and/or service. (It is the general intent of the City to maximize public access to its facilities and services, especially if park land is involved.) 6. The fees that will be charged to Palo Alto citizens. (It is the intent of the City to provide public access to its facilities at prices and/or fees that are fair and reasonable to the public. In the case of parklands, any fees and charges should be minimum and consistent with the fees and charges of comparable City -provided services.) 7. The monetary consideration to be provided to the City. 8. The history and assessment of the proposed group's ability to carry out the construction, if any, and operation of the facility and services as proposed. 9. A five-year pro -forma financial analysis of the proposed use, setting forth the project revenues and expenses for this period of time. Page 2 of 4 10 ATTACHMENT A POLICY AND PROCEDURES 11 1/ASD Revised: October 2006 C. Public Notification 1. Prior to awarding an Option to -Lease (or Lease if there are no pre -construction or pre -operation conditions), the City shall provide a reasonable and appropriate opportunity to other groups or entities to respond to possible use of City facilities. Such reasonable and appropriate opportunities shall take one of the following forms: a. A Notice of Intent to Award an Option to Lease (or Lease if there are no pre -construction or pre -operation conditions) generally outlining the conditions of the Option and Lease, shall be published twice in a local newspaper of general circulation. The Notice shall provide at least 30 days notice to the public prior to a public hearing for Council action to award the Option to Lease. In addition, copies of the notice shall be mailed to property owners and tenants within 300 feet of the subject property in accordance with Section 18.77.080(d) of the Palo Alto Municipal Code (PAMC). b. A Request for Proposals will be sent to groups or entities likely to have an interest in submitting a proposal, subsequent to a public hearing and Notice of Intent to Request Proposals being published in the appropriate media. At a minimum, the Notice of Request for Proposals shall be announced in a local newspaper of general circulation and copies of the notice mailed to property owners and tenants within 300 feet of the subject property in accordance with PAMC Section 18.77.080(d). The Notice shall provide at least 30 days notice to the public prior to the public hearing. 2. The City's Real Estate Division shall be responsible for the public notification by mail and newspaper in accordance with either C(1)(a) or (b) above. D. Tenant Improvements 1. Construction of tenant improvements shall take place only after Council approval (as well as Planning Commission and Architectural Review Board approval when otherwise required by City procedures) of plans for such tenant proposed construction is obtained. In the event of park dedicated lands, Council approval shall be obtained by ordinance subject to referendum (PAMC Sections 22.08.005 and 22.08.006). 2. Generally, improvements to the real property shall become the property of the City upon termination of the Lease. Tenant -provided fixtures shall remain the property of the tenant. Page 3 of 4 11 ATTACHMENT A POLICY AND PROCEDURES 1-11/ASD Revised: October 2006 E. Terms of the Lease 1. Tenant shall be required to provide the City with adequate compensation for the rights granted by the City to the Tenant. Determination of appropriate consideration shall begin with the estimated -fair market rental value of the lease premises for the use proposed. Consideration shall, however, be given to non - monetary benefits to be provided by the tenant. These proposed non -monetary public benefits must be clearly articulated and must provide an actual benefit to a significant portion of the citizens and taxpayers of Palo Alto. 2. The lease term shall be the minimum period of the time required to: a. amortize tenant's investment in any permitted and approved tenant construction; and b. be consistent with the nature of the proposed tenant operation. NOTE: Questions and/or clarification of this policy should be directed to the Administrative Services Department Page 4 of 4 12 ATTACHMENT A Exhibit D Federal: Federal Real Estate properties that are no longer needed by the federal government may be made available for public uses to state and local governments, regional agencies, or non-profit organizations. Public uses for properties are those that are accessible to and can be shared by all members of a community, and include community centers, schools and colleges, parks, municipal buildings and many more. GSA's Office of property Disposal notifies state and local agencies of the availability of any surplus federal real property that may be eligible to acquire under certain laws. These laws allow property to be transferred to public agencies and institutions at a discount up to 100 percent of the fair market value for: • Public health or educational uses • Public Parks and Public Recreational Areas • Historic monuments • Homeless assistance • Correctional institutions • Port facilities • Highways • Wildlife Conservation • Self-help housing • Law Enforcement and Emergency Management Response (PDC) • Negotiated Sales to Public Agencies • Federal agencies must obtain prior approval from the GSA regional office having jurisdiction for the proposed leasing action, before initiating a leasing action involving 2,500 or more square feet of such special purpose space. GSA's approval must be based upon a finding that there is no vacant Government -owned or leased space available that will meet the agency's requirements. Various Federal Departments are authorized to enter into leases for up to 5 yrs. http://www.gsa.gov/portal/content/102015 http://leginfo.legislature.ca.gov/faces/codes displayText.xhtml?lawCode=GOV&division=2.&tit le=5.&part=1.&chapter=5.&article=6. State of California: 13 ATTACHMENT A The Legislature has set forth its belief that there is an identifiable deficiency in the amount of land available for recreational purposes and that surplus land, prior to disposition, should be made available for park and recreation purposes or for open -space purposes. (a) A written offer to sell or lease for the purpose of developing low- and moderate -income housing shall be sent to any local public entity, as defined in Section 50079 of the Health and Safety Code, within whose jurisdiction the surplus land is located. Housing sponsors, as defined by Section 50074 of the Health and Safety Code, shall be sent, upon written request, a written offer to sell or lease surplus land for the purpose of developing low- and moderate -income housing. All notices shall be sent by first-class mail and shall include the location and a description of the property. With respect to any offer to purchase or lease pursuant to this subdivision, priority shall be given to development of the land to provide affordable housing for lower income elderly or disabled persons or households, and other lower income households. http://leginfo.legislature.ca.gov/faces/codes displaySection.xhtml?lawCode=GOV§ionNum=11011.2 http://leginfo.legislature.ca.gov/faces/codes displayText.xhtml?lawCode=GOV&division=2.&title=5.&p art=1. &chapter=5 . &article=8. For Council's information, below are some other jurisdictional treatments of city owned land and facilities: Oakland: The City Manager or his designee can authorize lease, license or rent for up to one (1) year on city owned or other properties. Where the rental rate is more than 25% below the appraised market value of the property, City Council approval will be needed. No lease of real property shall be per term in excess of 66 yrs. In the disposition process regarding surplus properties, first, City's Planning Commission will verify zoning. If properties are not needed for city functions and use, then they will be offered to other public agencies. If no interest is shown, properties can be declared as surplus by the City Council and offered for sale through a public auction or a negotiated sale process. The City Manager is authorized to dispose or acquire any property interest that does not exceed $25,000. http://clerkwebsvrl.oaklandnet.com/attachments/15495.pdf http://clerkwebsvrl.oaklandnet.com/attachments/13954.pdf San Jose: Real estate staff conducts an internal review to explore if a property can be used by the city's various departments. If no city use is identified, notification to other public agencies is issued to use the property for: public housing, open space, and educational use. If no interest is shown, the property may be offered for surplus sales by the City Manager if it has a market value of less than $500,000 and it is not independently developable. If the property is not declared surplus by action of City Manager, the City Council will make an alternative decision for the use of the property. The City Manager is authorized to enter into and execute for and on behalf of the City of San Jose, without the prior approval of the city council leases, licenses or other agreements for use of property where the city is a lessee/user or lessor/grantor, where the 14 ATTACHMENT A rental payments or other fixed consideration do/does not exceed a cumulative total of two hundred fifty thousand dollars $250,000. http://www.sanjoseca.gov/documentcenter/view/15177 http://sanjose.amlegal.com/nxt/gateway.dll/California/sanjose ca/sanjosemunicipalcode?f=templ ates$fn=default.htm$3.0$vid=amlegal:sanjose ca San Diego: San Diego has developed a comprehensive policy for City -owned properties. The real estate asset management staff prepare a comprehensive portfolio management plan on an annual basis, with periodic review and an as needed update to the Council. The Mayor reviews real estate assets not used for municipal purposes and determine the appropriate use of the property. The properties not needed for City and Public use may be available for lease or sale. The City will optimize the sale price or rent based on current market value, prevailing economic conditions, market trends, and any special benefits from sale or lease. San Diego's real estate policy allows for exclusive negotiated sales under certain conditions such as a landlocked parcel, sale to a contiguous owner to correct the site deficiency, offers from other government agencies, and qualified nonprofit organizations. The Mayor is authorized to enter into lease contract for a period up to three years. Leases in excess of three (3) years are approved by a majority vote of the Council. http://docs.sandiego.gov/councilpolicies/cpd 700-10.pdf Sunnyvale: The City Council awards all purchases, sales or leases of real property for the city where the purchase or sales price or lease cost exceeds $75,000. The City Manager awards all purchases, sales or leases of real property for the city where the purchase or sales price or lease cost is $75,000 or less, or where the lease results in revenue to the city and is for a period less than or equal to fifty-five years. The City Council may enter into a lease of city property for a term in excess of fifty-five years. https://sunnyvaleca.legistar.com/LegislationDetail.aspx?ID=1737410&GUID=F4637E44-5AFB-41 AB - 851 C-C61F4C9ACBF5&FullText=1 Dublin: If the City Manager determines that a City owned property with the value of more than $5,000 is not required by any other public use, he or she may dispose the property as surplus and authorize a public sale. If the surplus property has an estimated market value of five thousand ($5,000) or more, City manager shall dispose the property with Council approval. Htthttp://www.codepublishing.com/ca/dublin/Dublin02/Dublin0238.html p://www.codepublishing.com/ca/dublin/Dublin02/Dublin0236.html Mountain View 15 ATTACHMENT A City Council Policy A-10 spells out the delegated contracting authority for the Department Heads, the City Manager and the Council. The City Council has sole authority for any lease or sale of real property where the value exceeds $100,000. The $100,000 threshold for leases is the cumulative rent for the base term, i.e., if there is a five-year lease where the annual rent is $20,000 or more, the lease would have to go to the Council for approval in Regular session. There is no term -of -years threshold where a lease exceeding a certain term has to go to the Council; again, it is driven by value. Any lease that is within the Council's authority first goes to the City Council in closed Session for direction on price and terms of rental payment and the authority to negotiate a lease. If Staff is successful in negotiating a lease that is consistent with Council direction on price and terms, the lease is then brought before the Council in regular session for approval, either as a Consent item (non -controversial) or New Business (if potentially controversial). The City of Mountain View does not have an adopted and published set of processes and procedures. With that said, the City follows the State laws governing the process for selling public lands, including making the property available to local school districts, park authorities and affordable housing providers. 16 ATTACHMENT B Special Meeting Thursday, November 13, 2014 Chairperson Price called the meeting to order at 6:04 P.M. in the Council Conference Room, 250 Hamilton Avenue, Palo Alto, California. Present: Klein, Price (Chair), Schmid Absent: Scharff ORAL COMMUNICATIONS None AGENDA ITEMS 1. Review and Discussion of the Inventory of Donated City Owned Properties, Policy and Procedure 1-48 Sale & Transfer of Surplus City Owned Properties, Developing Guidance and Clarification Regarding Unsolicited Offers to Lease or Purchase City Land, and Policy and Procedure 1-11 Leased Use of City Land and Facilities. Lalo Perez, Chief Financial Officer, stated the item was referred to the Policy and Services Committee (Committee) by the City Council meetings of September 8th and 15th because of the Santa Clara Civil Grand Jury finding. He asked the Committee for directions on how they preferred to proceed; splitting the items or responding as a whole. Chair Price stated her preference was to hear the items one by one. Mr. Perez provided a list of City owned properties and restrictions included within any one donation. The listing was reflective of the 10 properties donated that the current Staff was aware of. In order to gain more detailed information on other donations the Staff would need to request a conveyance which could cost between $500 and $750 per property report from the county. He made a correction on property Item Number 6; 915 Scott Avenue, the Staff comments were not related to the specific property and should be omitted. Under the column "Leased" it should read "Used by or Leased" because some of the properties were being used by City functions. Staff proposed posting the list on the City's website for citizen review; the list would be updated as future donations or change of use occurred. 1 DRAFT MINUTES Council Member Klein asked for another column to identity the donor of property and a footnote on Item Numbers 9 and 10. He did not favor spending additional funds on conveyance reports; the City owned over 100 properties and that would be a large sum with an uncertain gain. Council Member Schmid suggested a general idea of when a property or land was donated would be nice information. He was concerned with the listed size of the 915 Scott Avenue site; it appeared to be 1.2 million square feet. Hamid Ghaemmaghami, Manager of Real Property, stated that was not the correct size; although, Staff was unable to verify the correct size at the present time. Council Member Schmid noted there was a segment on the table of land, he asked if the list was available or would be to the community. Mr. Ghaemmaghami stated the City had 140 property parcels; consisting of land and buildings. The reason for the list was to show the Committee an up to date listing; the concern of uploading the entire list on the website was for security purposes. The Utilities Department was uneasy revealing certain locations. Mr. Perez mentioned the intent of the list began with the Infrastructure Blue Ribbon Commission (IBRC) who needed a listing of City properties for determining the infrastructure needs. Having the Committee review the complete list and request suggestions for a clearer understanding prior to uploading the information onto the website would be helpful. Council Member Schmid understood there was sensitive data on a list such as this. The reason behind the discussion was public land being fenced off from the public. There was a second property in a similar situation in the center of the Baylands. He asked whether the telegraph building was City property. Mr. Perez asked if that was the ITT property. Council Member Schmid stated yes. Mr. Ghaemmaghami stated the ITT property; land, was owned by the City with an easement granted to ITT. Mr. Perez stated the condition of the easement was the facility would continue to be used for radar purposes. Staff had been in contact with the holder of the easement to inquire whether or not they were ready to release Page 2 of 17 Policy and Services Committee Regular Meeting Final Minutes 11/13/14 DRAFT MINUTES or sell back the easement. As of yet, the party was not ready to move forward with the release or sale of the easement and they maintain the conditional use remains the same. Council Member Schmid had heard informally that that site had not been in use for many years. It was important from a park perspective to have the easement eradicated although the site was important for the history of Palo Alto. His question was whether the site would be on the list as a City owned property. Mr. Ghaemmaghami stated yes, it was City owned property and would be on the list. Mr. Perez mentioned the completed list would contain the properties owned or leased by the City and the conditions or restrictions attached to said properties. Chair Price asked why there was a need for a Comprehensive Plan column on the listing of property. Mr. Perez stated Staff would review the item and see whether it was a necessity. Chair Price understood the Assessor's Parcel Number (APN) was a standard manner in which to identify properties but she asked whether there was a need for a parcel map link for the public. Mr. Perez said that question was brought up amongst Staff and the discussion of a Google Map that showed the property. The idea behind the parcel map was if the community desired to check with the county that would have the necessary information. Council Member Klein suggested doing away with the column of "Acquired By" because it was an inventory of City donated lands which meant they were acquired by gift. There were a lot of columns and he desired to reduce the unnecessary ones. Chair Price clarified Staff was requesting the Committee to review and accept the listing. Mr. Perez agreed and noted the Committee had provided ample recommendations which would allow Staff to continue to improve the list prior to uploading to the website. Page 3 of 17 Policy and Services Committee Regular Meeting Final Minutes 11/13/14 DRAFT MINUTES Chair Price asked if Staff required a separate Motion per item. Mr. Perez left the decision to the Committee. James Keene, City Manager, stated Motioning individual items appeared simple enough without being time consuming. MOTION: Council Member Schmid moved, seconded by Council Member Klein that the Policy & Services Committee accept the attached Inventory of Donated City Owned Properties, which will be posted on the City's website as directed by Council. MOTION PASSED: 3-0 Scharff absent Mr. Perez explained Staff was interested in any suggested revisions in the procedure of the sale/transfer of City owned real property which was located in Policy and Procedures 1-48/ASD. Mr. Ghaemmaghami and his staff performed periodic reviews of the City owned properties to determine the need. There were incidents where a department would approach the Real Estate division to inform them they no longer had a need for their specific facility. He provided the example of the Middlefield Well Sites; the Utilities department and the Water Fund no longer had a need for the wells located on the site. They have removed the property from their inventory of use and returned it to the General Fund. The next step would be for Staff to determine whether the property was surplus. If so, there was a process of competitive bid for Council approval. The other options were the City received an unsolicited offer to lease/purchase the property. The second option did happen frequently but most recently Staff was approached with regard to the Los Altos Treatment Plant. Typically those types of discussions would begin with the Real Property area, if the probability warranted discussion the City Manager and City Attorney would be approached and the final step would be Council for further review. Council Member Klein believed Items 2: Review and Consider Potential Revision to Policy and Procedures 1-48/ASD (Procedure for Sale/Transfer of Surplus City Owned Real Property), and 3: Consider recommending an amendment to Policy and Procedure 1-48 to specifically address unsolicited offers to lease or purchase City owned properties, and 4: Review policy and Procedure 1-11/ASD (Leased Use of City Land/Facilities) and consider whether amendments are needed; were similar enough and should be linked together for discussion and change. Mr. Perez noted Staff had not made significant recommendations because it was not common to receive unsolicited offers. Page 4 of 17 Policy and Services Committee Regular Meeting Final Minutes 11/13/14 DRAFT MINUTES Mr. Ghaemmaghami stated the last surplus property the City sold was in 2006; 2460 High Street at $450,000. In the past 20 years there had been no more than three properties sold. Council Member Schmid asked if that location was the electric station. Mr. Perez believed it was a pump or well site. Molly Stump, City Attorney, mentioned when the Grand Jury addressed the preliminary work the Staff did with the Council to consider an unsolicited offer on the 7.7 acres of Foothills Park, they reviewed City Policy 1-48 and did not see a specific type of circumstance described in the policy. She acknowledged it may happen from time to time when a circumstance may arise that was not spelled out in a specific policy. A policy was a general statement looking forward; but when you have professional staff they were relied upon to use their judgment when particular or specific circumstances arise that were not spelled out. The genesis of the Grand Jury's specific referral was it was not Staffs' view that more detail was needed, but rather it was Council's wish to focus on that specific question in response to the Grand Jury's struggle. Chair Price asked Staff how they wished for the Committee to reply, making a short statement or not. Mr. Keene stated he had a recommendation. Typically, Staff would be approached in some fashion for an unsolicited sale; at that point the matter could end with Staff's determination. The question he asked himself was whether or not Council wanted to be apprised of an inquiry even if it was not substantiated. In the case of an unsolicited offer that Staff felt required Council's attention, such as the 7.7 acres, Staff scheduled a Closed Session with the Council for discussion for exploration. He asked whether the Committee believed the Council would prefer to have preliminary Open Session process to identify in a little more detail what was occurring with an unsolicited offer. He believed it would be a worthwhile policy to put into place with the flexibility to schedule a Closed Session or a public discussion. The discussion within Staff had been whether more information was hurtful to the City; in the 7.7 acre situation there was a significant amount of misinformation in the public which was not released by the City. Council Member Klein favored an additional sentence or two in the policy effectively stating, "An unsolicited offer would be considered the same as a recommendation from a Department Head to the Real Estate Manager as to the consideration of what should happen to the said property". He did not Page 5 of 17 Policy and Services Committee Regular Meeting Final Minutes 11/13/14 DRAFT MINUTES feel every offer should automatically go to Council. The Real Estate Manager and the City Manager should be able to decide the significance of a property offer. Council Member Schmid felt Policy 1-48 was outdated and should be reviewed and updated. The policy stated there should be an open and competitive bid process, yet the procedures were to notify the departments for discussion, notify other public agencies, then if there was an unsolicited bid the process was to place an ad in the paper, and send flyers. He felt there should be a more efficient process of notification. Council Member Klein clarified if a citizen approached the City to purchase property and the City Manager stated no; the matter would be closed. If the City Manager agreed; his thought was to add a sentence clarifying the beginning of the process. Ms. Stump clarified if the City Manager agreed to sell or lease a property the procedures for that process would begin in Section D: Should the decision be to declare the property surplus and sell it by bid. At that point the material would be packaged and submitted to the Council for review and decision. Council Member Schmid clarified when the City Manager agreed to sell or lease a property it would become an item on the City Council Agenda. Ms. Stump stated yes. Council Member Schmid asked if the listing of property was available for the public prior to the 7.7 acre matter. Mr. Perez stated the information may have been available through a staff report or on the website indirectly at one point but not currently. Mr. Keene clarified if there came a time in the process of selling or leasing a City owned property there would be public notice and transparency. Ms. Stump acknowledged the City website did not have a database of properties readily available as was available today. That type of modern information came about because of the Grand Jury process. Once the 7.7 acre matter was researched Staff found it had been brought to Council a number of times in the 1980's and 1990's. Current Staff and leadership had not reviewed or received data. Council Member Schmid stated his concern was when the current Council received the information it was under the guise of a Closed Session where Page 6 of 17 Policy and Services Committee Regular Meeting Final Minutes 11/13/14 DRAFT MINUTES they operated under the rules of inability to publicly state what occurred during the discussion. At that point the options for the public to become involved were severely limited. Mr. Keene understood Council Member Schmid's concern but reiterated in the event the Closed Session produced a decision to sell or lease the property the open process would have begun as stated in Section D. With the existing process and policy the City could not have disposed of the property without public input, process, and involvement. Council Member Klein noted Exhibit A; the listing of City owned property was by no means a list of properties that were for sale or available for lease. The listing was a historic document that simply recorded the property owned by the City. He expressed the current process was very public and the addition of the sentences discussed earlier improved the procedures. Mr. Perez stated once a property was declared surplus all of the steps thereafter would have been followed and were in Open Session. Ms. Stump mentioned if there was a Motion at the Closed Session on the 7.7 acres, at the most it would have been to place the item on the Open Session City Council agenda to begin the process. Council Member Schmid proposed to have the process as outlined when it reached Section D to not say to go to the Consent Calendar or place an ad in the real estate section. Council Member Klein stated if there were other ways to publicize the availability of a property he was open to suggestions and change to policy verbiage. Mr. Ghaemmaghami agreed to update the policy to incorporate the City website and add language that property could be advertised on other websites. Council Member Schmid agreed. Mr. Keene recommended adding an all -encompassing small "d" to Section D clarifying the utilization of the City's availability of outreach ranges. Council Member Klein agreed and suggested reference to electronic media. Herb Borock read a section from the Grand Jury report. The issue was the current Council and Staff reviewed and understood the consequences but he Page 7 of 17 Policy and Services Committee Regular Meeting Final Minutes 11/13/14 DRAFT MINUTES suggested for future members and Staff there be language added; pursuant to Government Code Section 54220, Policy 1-48/ASD and in addition, add another sentence that no discussion of the potential sale of City owned property shall be held in a Closed Session unless the property had been declared surplus. Ms. Stump clarified the Grand Jury did not find there was a violation of the Brown Act. The Surplus Property Act was a state requirement that the City had stated it would comply with. It was important to note whether it was a mandatory process for a Charter City was something courts had not found and maybe a future Council would choose to dispose of property in a public way that did not comply with the state law requirements. Council Member Schmid mentioned Section C, Item 1 read: Formally declare the real property surplus and instruct the Real Estate Division to dispose of the property using open bid procedures. Ms. Stump agreed the process had to be done in Open Session although it did not have to be done before a Closed Session. Council Member Klein believed the current policy and procedures were accurate and would cover the majority of property transactions the City might have. MOTION: Council Member Klein moved, seconded by Chair Price that the Policy & Services Committee direct Staff to bring to the Council the section of the procedure modified in 2 respects; 1) to cover an unsolicited offer and only go to Council if the City Manager recommends and 2) to update the procedures to include electronic media and exposure to the public. Mr. Keene suggested placing the Motion changes under Section D, Item 3 subsection d as: utilize modes of advertisement including electronic media. Council Member Klein agreed. INCORPORATED INTO THE MOTION WITH THE CONSENT OF THE MAKER AND SECONDER to place the Motion changes under Section D, Item 3 subsection d as: utilize modes of advertisement including electronic media. Council Member Schmid asked if Section A, Items 1 and 2 could be performed without public knowledge. Page 8 of 17 Policy and Services Committee Regular Meeting Final Minutes 11/13/14 DRAFT MINUTES Ms. Stump clarified up to that point it could be. Once Staff completed Section A, Items 1 and 2, the next step was to go before Council where the Council could decide the property was or was not be declared surplus. Council Member Schmid stated if the property was public there should be an opportunity for the public to be engaged. Ms. Stump disagreed in that the Staff packaged the materials and brought it before Council in an Open Session for the Council to decide whether to dispose of the property or not, therefore the public could be involved. MOTION AS AMENDED PASSED: 2-1-0 Schmid no, Scharff absent Council Member Klein asked Council Member Schmid to clarify his no vote. Council Member Schmid shared his concern with the way the policy read with respect to Sections A, B, and C which implied clearly that the public would be involved through the Council Open Session. The issue with the 7.7 acres was it was deeply involved in a Council discussion without public knowledge or input. Council Member Klein asked what Council Member Schmid was suggesting. Council Member Schmid asked Staff to review Sections A, B, and C under the terms of an open and competitive bid process. He asked for language to ensure there would be a public process. Mr. Keene was trying to differentiate this specific process against any other multi -stage City procedure that Staff handled up to a point prior to Council involvement. He understood the 7.7 acre matter was not dealt with in a normal fashion although it was handled within the policy and procedures. He noted there was action from a prior Committee meeting going before Council relating to the question "what will automatically be placed on a City Council agenda; a vote in public to go into a Closed Session." He believed that process, if enacted, would allow Council to make the determination on what would be in Closed or Open Session. Council Member Schmid stated that was a future step not in the current policy. Mr. Keene understood the Committee suggested that step would be for the future; however, that future step would be added to the current policy and therefore would allow Council to approve or determine any scheduling of a Closed Session. Page 9 of 17 Policy and Services Committee Regular Meeting Final Minutes 11/13/14 DRAFT MINUTES Chair Price agreed. Council Member Klein explained the split vote on that item from Committee came about because that situation was already present. Any Council Member could move a Closed Session item into an Open Session by Motion. Chair Price asked in a situation where we have a parcel of land and we want to swap it with a public or private entity; was there language in an existing policy or procedures to allow Staff to pursue that. Mr. Perez stated the property in question would need to be declared surplus because it would not be used for its intended purpose. Ms. Stump agreed with Mr. Perez; the title of the process being discussed was Sale or Transfer. Mr. Perez clarified the last Section 1-11/ASD the City could lease a property for a term of up to 50 years under the current Charter, and by Ordinance the Council has delegated to the City Manager the authority to lease any City owned property for up to 3 years. The City Manager also has the authority to rent or lease property at the Cubberley Community center for up to 5 years. In review of other cities similar policy's Staff was not proposing any changes to the current policy. Chair Price asked if the current policy did not state a designated amount simply a designated year. Mr. Perez stated yes. The majority of the property leased was to non-profit so the amount would be insignificant. Council Member Klein asked if Staff was planning on requesting title reports for City owned property at a cost of $500 to $750 each. Mr. Perez clarified that suggestion was intended for the first part of the discussion and Staff was directed against the suggestion by the Committee. MOTION: Council Member Klein moved, seconded by Chair Price that the Policy & Services Committee recommend no changes to Policy and Procedure 1-11/ASD (Leased Use of City Land/Facilities). Council Member Schmid asked for clarification on 1-11/ASD under Procedures Section A, Paragraph 2. He asked for clarification on Section B, Item 5, the last sentence. Both sections refer to park lands open to public, Page 10 of 17 Policy and Services Committee Regular Meeting Final Minutes 11/13/14 DRAFT MINUTES although there were large gates and no trespassing signs on the parkland area because there may be a lease involved. There seemed to be a disconnect. Ms. Stump asked for clarification on what property. Council Member Schmid was speaking to the lease on the Acterra site of 7.7 acres. Ms. Stump explained the property was not safe for open public use at the present time. There was an open culvert on the property and the Parks and Recreation Department was currently looking into developing the property for open and active public use. She clarified the property was currently dedicated park land. Council Member Klein believed the City had fuel stored on the property. Mr. Perez noted there was fuel stored on the boarder of the property. He stated he and his Staff had visited the property and vouched it was not safe for public access. There would be a Capital Improvement Project coming to the Council once it was determined what was necessary to complete safety issues. Mr. Keene noted the general intent of the land was to get it to public accessibility and Staff relied on the Policy and Procedures language to make the changes. Ms. Stump mentioned there were areas within City dedicated parkland where there were areas fenced off from public access because the City Manager or the City Council had made a policy decision for a limited area and limited purpose because it served the larger public purpose such as working materials were prepared, equipment or fuel storage. MOTION PASSED: 3-0 Scharff absent Mr. Perez asked how the Committee wished for Staff to proceed with the items moving forward to Council since there was not a consistent vote. Chair Price recommended Items 2: Review and consider potential revision to policy and procedures 1-48/ASD (procedure for Sale/Transfer of surplus City owned real property) and 3: Consider recommending an amendment to Policy and Procedure 1-48 to specifically address unsolicited offers to lease or purchase City owned properties, would move forward to the Council as Action Items and Item 1: Review and accept the inventory of donated City Page 11 of 17 Policy and Services Committee Regular Meeting Final Minutes 11/13/14 DRAFT MINUTES owned properties, which will be posted on the City's website and 4: Review Policy 1-11/ASD (Leased use of City Land/Facilities) and consider whether amendments were needed, would be Consent Items. 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 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 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 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 accomplish for the community. Chair Price asked if Staff was requesting the discussion of sorting out the initiates begin at the Committee level. She noted the list presented was un- weighted and not organized by category. Mr. Keene suggested the Committee determine whether they wished to begin the process of selecting their priorities prior to recommending to Council. The legislative season was quickly approaching and usually due date was set in the third week in January. Herb Borock suggested when the list went before the Council who recommended the item should be noted; whether by Staff or the Committee. He believed the listing order should be 1) City priority, 2) Committee proposed, and 3) Staff recommendation. Page 12 of 17 Policy and Services Committee Regular Meeting Final Minutes 11/13/14 DRAFT MINUTES 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 sentences in Item 4: Ensurc that legislation, policies and budgcts retain or increase, but generally did not decrease, the amount of local discretion held by thc 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 thc right to exceed State goals, standards or targets. Mr. Keene clarified the recommendation was to strike the first sentence beginning with 'Ensure that Legislative' and strike the last sentence beginning with 'The City retains'. Portion omitted due to audio difficulties. 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 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 Page 13 of 17 Policy and Services Committee Regular Meeting Final Minutes 11/13/14 DRAFT MINUTES Council Member Schmid stated there were 18 items to select from and he suggested the Committee vote 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 as 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. He believed the legislative analyst would inform the Council or Staff when an item on the list but not prioritized was upcoming. Mr. Keene noted the Committee had the ability to inject an item to the list once it was reviewed. Chair Price asked if there was a history of the number of priorities allotted each Council Member. Council Member Klein stated yes, it was 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 CaIPERS, 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 CaIPERS, 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 Page 14 of 17 Policy and Services Committee Regular Meeting Final Minutes 11/13/14 DRAFT MINUTES California High Speed Rail project, and 6) Advocate for environmental initiatives that promote the use of alternative energy sources. Chair Price listed her 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 energy sources, 4) Advocate for policies that promote the long-term stability of CaIPERS, 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 in 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 CaIPERS, 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 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 FUTURE MEETINGS AND AGENDAS December 9th and 16th, 2014. Khashayar "Cash" Alaee, Senior Management Analyst, presented the Policy & Services Committee (Committee) members with the list of upcoming meeting topics. Chair Price stated the items listed for the 16th of December did not appear to be substantial enough. Page 15 of 17 Policy and Services Committee Regular Meeting Final Minutes 11/13/14 DRAFT MINUTES Mr. Alaee stated he could check with Staff on the possibility of moving the airport item up to that date. Chair Price believed the airport item was important but she was interested in core City issues. Mr. Alaee noted the Stanford Funds were possible to be moved but he needed to have a discussion with the City Manager; the City Auditor had requested more time on their items. He suggested moving the items from the 9th of December onto the 16th of December and shifting items from the 16th therefore eliminating one meeting. He noted after speaking with Staff members the more significant items needed more work and could not be presented prior to 2015. Council Member Schmid said the 9th as it was with the five items appeared to be a long night. He suggested moving one of the items to the 16th and keeping both meetings. Chair Price suggested moving the Amendment of the Municipal Percent for Art Policy from the 9th to the 16th Mr. Alaee agreed to move the item and suggested adding the airport. Chair Price understood Staff requested more time before returning with the Project Safety Net but she asked for an update. Mr. Keene agreed to speak to Staff but felt an information update report could be possible. Council Member Klein did not feel the Percent for Art item was difficult or long. He believed the Health and Safety issue would be significant. Chair Price agreed to move forward with the next steps on Project Safety Net. Council Member Klein stated he was uncertain what the discussion would be surrounding the airport. Chair Price clarified the title for the airport items appeared to be misleading. She felt the title should be rewritten for a better understanding of what needed to be done. Mr. Keene noted the issue was with the San Francisco airport routing and noise level along with the seat on the Round Table in San Mateo County. Page 16 of 17 Policy and Services Committee Regular Meeting Final Minutes 11/13/14 DRAFT MINUTES ADJOURNMENT: Meeting was adjourned at 8:09 P.M. Page 17 of 17 Policy and Services Committee Regular Meeting Final Minutes 11/13/14 CITY OF PALO ALTO City of Palo Alto (ID # 5333) City Council Staff Report Report Type: Consent Calendar Meeting Date: 12/15/2014 Summary Title: CUP and ARB Appeal for Verizon Facility at Palo Alto Ball Field 3672 Middlefield Road Title: Review of a Proposed Conditional Use Permit (CUP) for a Verizon Wireless Telecommunication Facility at the Palo Alto Little League Ball Field, Zoned R-1 (8000), and an Appeal of the Director's Architectural Review Approval of the Facility, an 18 -inch Diameter, 65 -foot tall Monopole/Light Pole Replacing a 12 -inch Diameter, 60 -foot Tall Light Pole, and Associated At - Grade Equipment Enclosure at 3672 Middlefield Road and Approval of CEQA Exemption From: City Manager Lead Department: Planning and Community Environment Recommendation Staff recommends that the City Council: 1. Approve the Conditional Use Permit (CUP) application for the project, based upon the findings and subject to approval conditions contained in the Record of Land Use Action (Attachment A); and 2. Deny the Appeal of the Director's Decision on the Architectural Review (AR) application based upon the ARB approval findings and conditions of approval provided in the Record of Land Use Action (Attachment A). Note: If the City Council removes this item from the Consent agenda, staff recommends that it be scheduled for hearing on February 9, 2015. Executive Summary The Director of Planning and Community Environment tentatively approved the Conditional Use Permit (CUP) and the Architectural Review Board (ARB) application for the Verizon Wireless telecommunication facility (WCF) at the Palo Alto Ball Field, owned by the Palo Alto Little League. The Director's approval letter is provided as Attachment B. The project is the installation of one 18 inch diameter "stealth" cell tower monopole (with three antennas on top City of Palo Alto Page 1 within a radome) replacing one existing ball field light tower in the same location, with associated enclosed WCF equipment at grade. A CUP is needed to locate a WCF on a residentially zoned property and for stand-alone WCFs. Staff received the attached hearing request (Attachment C) and ARB appeal (Attachment D) prior to the CUP and ARB entitlements becoming effective. The Planning and Transportation Commission conducted a public hearing on the CUP on December 3, 2014. Verbatim minutes are provided as Attachment F. The Council may act on the CUP application on the consent calendar, or decide to pull the item off the consent calendar to conduct a public hearing. The Council may also consider, on consent calendar, the appeal of the Director's approval of the ARB component of the application. A minimum of three City Council members is required to pull either or both items off the Consent Calendar. If pulled, a public hearing would likely be scheduled for February 9, 2015. Opponents have raised a number of concerns regarding the granting of the subject CUP and ARB approvals. These concerns are discussed further in the Discussion section of this report. Background Verizon seeks to improve its coverage in the vicinity of the Palo Alto Little League ball park and proposes to install one 65 -foot tall, 18 -inch diameter monopole with attached ball field lights and associated ground level equipment enclosure at the Palo Alto Little League Ball Field. The new monopole would replace an existing 60 foot tall field light standard and the existing ball field lighting would be reinstalled in its original orientation and height. The radome at the top, containing three antennas, is a "stealth" design intended to minimize the visibility of the antennas from offsite locations, in accordance with Palo Alto's Municipal Code (PAMC) Section 18.42.110. A radome is a cylindrical drum -like feature that encapsulates the antennas to hide any visual clutter of the antennas, their wires, and attachments. The monopole would be six inches thicker and five feet taller than the existing 12 -inch diameter, 60 -foot -tall light pole it would replace. The new monopole would be the same metal color as the other existing light poles, and the radome would be painted to match. A new equipment enclosure (442 square feet of floor area) would house the ground mounted equipment and the backup hydrogen fuel cell emergency power generator. The enclosure would be located between the existing storage sheds and containers. The cables between the pole and the equipment shed would be located underground. None of the existing trees would be impacted by the proposal. Site The 2.74 acre project site is located on the southwest side of Middlefield Road just south of the City of Palo Alto Page 2 intersection of East Meadow Drive and Middlefield Road. The site, owned by the Palo Alto Little League, includes the ball field, parking areas, bleacher seating, four field light towers, a snack shack/office building, two dugouts, batting cages, storage structures, a picnic area, flag poles, and landscaping. To the rear of the site is a parking lot for Mitchell Park and the Covenant Presbyterian Church. Fire Station #4 is located north of the site, along with an electrical substation. Bordering the site's south side property line is the Mitchell Park library, and across the street (Middlefield Road) to the east, are single family homes. There is also a Wireless Facility mounted on a flagpole at the Fire Station adjacent to the site. Verizon had investigated other sites in the area in an effort to improve their cellular communication network. In this area of town, there are very few tall buildings or other structures that provide the height needed for cellular antennas. Verizon has looked at other existing sites in an effort to 'co -locate' antennas, such that a new cell tower would not be needed. The other sites in the area did not provide the opportunity necessary to meet Verizon's needs. Over the past several years NSA, working on behalf of Verizon Wireless, has presented the City various design proposals for cellular antennas at the Palo Alto Little League ball park. Wireless Communication Facilities The City of Palo Alto has approved many Wireless Community Facilities (WCFs), including two "stealth" WCFs near the site (a flagpole WCF monopole at Fire Station #4, and a fake WCF tree at the Achieve site). In May 2011, during the time the City was considering AT&T's Distributed Antenna System (DAS) proposal, the City published a Frequently Asked Questions (FAQ) document on the City's website, to help the community learn about Radio Frequency exposure and other concerns related to WCF technology. The FAQs are found here: http://www.cityofpaloalto.org/civicax/filebank/documents/27109. On July 2, 2012, City Council directed staff to issue a request for proposal for a consultant/vendor to prepare a citywide wireless communications facilities plan. The RFP was released on October 2, 2012. Staff interviewed four firms for the study, and awarded a contract in April 2014 to Anthem Telecom, LLC. While that master plan is being developed, the City is obligated to accept and process applications for WCF installations to meet the cellular industry needs. Application and Public Hearings Several years ago, Verizon had submitted an application for a wireless facility at the subject site. The project design evolved from the initial fake tree concept, to the addition of two new "stealth" cell towers with cellular antennas on top, to the current monopole design with this CUP application, tentatively approved by the Director of Planning and Community Environment following two public hearings before the ARB. There were four community meetings to solicit public input. Staff discouraged previous proposals for the site, given the concerns of staff and the community; instead, staff advised the City of Palo Alto Page 3 applicant to find a solution introducing less visual impact to the site and neighborhood. Architectural Review Board Recommendation The ARB conducted two public hearings, allowing members of the community to voice concerns regarding all aspects of the project. The ARB questioned the design of the equipment enclosure. They stated that the equipment shed needed further design consideration and that the exterior finish materials should match those of the adjacent structures. The ARB also wanted more information on the proposed details, colors and materials for the replacement pole and the equipment enclosure. The ARB continued the item to October 16, 2014 where they recommended approval of the project. The ARB verbatim excerpt minutes are available at: https://www.cityofpaloalto.org/civicax/filebank/documents/44234. The Historic Resources Board conducted a public hearing on a proposal for designation of the Palo Alto Little League site to the City's Local Inventory of Historic Resources. The application was filed by the same person who requested the CUP hearing. The Council voted to disapprove the designation on November 10, 2014. The HRB verbatim excerpt minutes were attached to the City Manager's Report, found at https://www.cityofpaloalto.org/civicax/filebank/documents/44614 Planning and Transportation Commission Recommendation The Planning and Transportation Commission conducted a hearing on the CUP aspect of the project on December 3, 2014. The Commission heard testimony on both side of the issue. Some topics of discussion included the CUP process, the implications of Federal regulations supporting future co -location, and the status of the Comprehensive Wireless Plan. The Commission voted 6-0-1, (Commissioner Rosenblum absent) recommending City Council approval of the CUP. Discussion The two ARB staff reports from October 16, 2014 and September 18, 2014 are available on the City's website at http://www.cityofpaloalto.org/civicax/filebank/documents/44232, http://www.cityofpaloalto.org/civicax/filebank/documents/43875. The excerpt verbatim minutes from the October 16, 2014 ARB meeting are attached as Attachment E. Many concerns regarding the project were captured in the ARB report and meeting, and are reflected in the meeting minutes. Neighbors and other citizens from elsewhere in Palo Alto submitted a number of letters and email messages; these were provided with the two ARB staff reports. Some of these letters voiced concerns about the proposed wireless antenna facility, and many voiced support for better coverage in the area. Some of the concerns raised were related to noise, odors, lightning strikes, earthquakes, health impacts from Radio Frequency (RF) exposure, toxic emissions, loss of property values, and concern that the proposal would be aesthetically destructive and negatively impact a historic resource. The City Council will address the appeal of the ARB action and has already acted on the historic resource action (not listing the site as a resource). City of Palo Alto Page 4 Conditional Use Permit Requirements Section 18.42.110 governs the review of WCFs. Under this Code, WCFs located in single family residential zones must obtain a Conditional Use Permit. To qualify for a Conditional Use Permit, the City must make two findings: (1) The use is not detrimental or injurious to property or improvements in the vicinity, and will not be detrimental to the public health, safety, general welfare, or convenience; (2) The use will be located and conducted in a manner in accord with the Palo Alto Comprehensive Plan and the purposes of this title (Zoning). (Palo Alto Municipal Code Section 18.76.010.) The Director reviewed the application and determined that the findings required by the City's CUP ordinance could be made. (See Attachment A for Director's findings.) Request for Commission Hearing on CUP On November 10, 2014, Jason Yotopoulos sent an email to City staff, Council and the PTC. The email, Attachment C to this report, included photos and a link to a 70 page report prepared by a consultant for the hearing requester and others. Below are staff's summaries of the reasons stated in the email for the hearing request and appeal (of the Director's decision) and staff's responses to each of the items: • Resident frustration with lack of transparency in the City of Palo Alto planning process; This application has been processed in accordance with the rules and procedures set forth in the municipal code, notices have been properly distributed and the members of the public, including the hearing requester, has been present at public meetings regarding this project. Staff is unable to substantiate claims of a lack of transparency regarding this case. Moreover, the Planning and Transportation in its review of the administrative record, and as evidenced by the number of people that came to speak on the matter, remarked that the project has been processed in a transparent manner. • Due process concern, given the FCC "shot clock" pressure, decision under duress; The City's decision making process has not been compromised by pressure from the applicant. All applicants have the desire to see their applications processed in a timely manner. The applicant has extended the shot clock deadline multiple times to allow the City process to take its course. There are no relevant details that remain unaddressed. Construction documents will follow in the building permit process that takes place after the Planning Entitlement is complete. The ARB and CUP process do not consider construction documents and the appropriate City Departments, including Fire, have reviewed the proposal. • Unaddressed details and inconsistencies in Verizon's plan, including: City of Palo Alto Page 5 o existing building specifications not meeting outdoor equipment standards, nor the requirements for separation of incompatible materials or clearance, o unclear emergency temporary generator operation, o no construction detail, o versions of plans changed during the review process; As stated previously, building permit review and compliance with building code will be addressed during the building permit process. The ARB approval has given the applicant the choice of using hydrogen fuel cell or a diesel generator for backup power supply. The fire department is satisfied with either option. Staff does not find the backup power source to be an issue. The City has diesel generators all over town without incident and the Fire Department has reviewed the hydrogen fuel cell proposal and has approved this option as well. Neither system represents the issues that are claimed by the hearing requestor. The fact that the plans have changed through the process was raised as an issue. It is common in most development applications for the plans to evolve during the review process. It is an important part of the review process allowing the applicant the ability to revise the plans in response to comments from the public, the staff, and the various Boards and Commissions • Claim that the primary CUP for the site needs to be amended to address compliance for existing lighting, pole height, three buildings, fence height, structures within R-1 encroachment area, easement, glare from field lights; Staff finds the site to be in conformance with the prior CUPs for the use of the site as a baseball field and with the CUP for the ball field lighting. The City finds nothing wrong with the current use of the property and has no recommendations for changes to the existing site beyond what is proposed in this application. The lighting was previously approved through a variance and CUP application and the ball park is in full compliance with those approvals. However, it was mentioned during the public testimony, that light from the light pole(s) was spilling over into the residential neighborhood. Verizon will provide light shields on the lights placed on the new monopole, but existing light standards remain unshielded. The attorney representing Verizon was unwilling to voluntarily accept a condition to remedy those concerns and staff was unable to find a nexus between that concern and the subject application. Nevertheless, the City will follow up through a code enforcement effort to ensure the lights are in compliance with applicable municipal codes. • WCF incompatible with residential use in an R-1 8000 zone and concern about potential for changing use from ball field to a residential use in the future; The City has permitted many wireless telecommunications facilities in R-1 zoned areas of the City. They are located at fire stations, churches, and private schools, all within R-1 zone districts. The subject use is compatible at the subject location based on the manner that it has been proposed. The proposal is a reasonable distance from any residential property and has a minimal visual impact. The assertion that the property could not be used for residential use if a City of Palo Alto Page 6 cell tower is established is not accurate. This is private property and the cell tower would only exist at the discretion of the property owner through a lease agreement. • Concern that cell towers, hazardous materials, and third party access easements traversing the only property ingress/egress area, consist of a de -facto zoning change, but without the proper City process or community oversight; As evidenced by the administrative record for this project, there has been and continues to be a considerable amount of community oversight. The monopole and related equipment is a conditionally permitted use of the property specifically anticipated in the zoning code. Accordingly, there is no de -facto zone change. • Effect of the Middle Class Tax Relief & Job Creation Act of 2012; The referenced Act includes provisions related to public safety and wireless communication facilities. The FCC is also in the process of adopting implementing regulations. The law provides that local governments approve eligible facilities requests for a modification of any existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station. Collocation of new transmission equipment is a qualifying eligible facility under the law. Residents have expressed concerned about future collocation applications at the subject site. Any future collocation requests, if received, would be subject to the same local review process as the subject application, but would be approved if it did not substantially change the physical dimensions of the tower. There appears in the administrative record images of large antenna structures and the suggestion that if this subject item is approved, a facility as illustrated in the images would necessarily follow. This graphic illustration is misleading and cannot reasonably be construed to be permissible under the Middle Class Tax Relief & Job Creation Act of 2012. Moreover, the applicant has agreed to a condition that requires any future co -location request to be subject to a CUP. • Alternate cell tower sites located in the vicinity (60 -foot tall buildings within 1/2 mile) o Loral on Fabian, o Cubberley site at 2500 ft. away, o Middlefield/Charleston Shopping Plaza at 1500 ft away, o Mitchell Library roof, o East Meadow Utilities Substation 60 feet away; and There are no other structures in close proximity to the little League ball park that would provide enough height in the appropriate location to meet Verizon's coverage needs. Loral, Cubberley, Charleston Shopping Center, and the Mitchel Park Library are not tall enough. There are no fitting alternate sites. This part of town has very few tall buildings and none are close by. • Preemption of the City's Comprehensive Wireless Plan with Anthem Telecom to decide City of Palo Alto Page 7 the appropriate siting for towers and any potential colocation. The City's Draft Comprehensive Wireless Plan is still in the early stages of development. It would be some time before this Plan could become a reality. The City is obligated to process other wireless applications that may be submitted in the meantime. ARB Appeal On November 10, 2014, Charlene Liao submitted an appeal of the Director's approval of the ARB aspect of the application. The ARB conducted two lengthy hearings on this applications and recommended approval to the Director. The Director's Decision containing the required ARB findings is included as Attachment B. The appeal, Attachment D to this report, included a letter outlining her reasons for appealing the approval. Below are staff's summaries of the reasons stated in the letter for appeal (of the Director's decision) and staff's responses to each of the items: • The ARB approved a building not ready for decision. The appellant believes that the grade level equipment building represents a hazard and does not meet required codes and would be incompatible with the proposed fuel cell backup power supply system. The ARB approval is for the design of the building. The review for compliance with building codes comes at the building permit plan check stage of the process which follows the approval of the planning entitlement. If the building must be significantly altered to achieve compliance it would be required to go back to the ARB. The Fire Department has reviewed the proposal and has no objection at this time. The approval of the equipment building does not represent a hazard. • Significant safety risk and attractive nuisance for neighborhood children. The appellant has asserted that the building is dangerous because children may climb upon it and because Verizon would have access to the building with trucks and cranes for maintenance and repairs that would somehow put children in harm's way. They also assert that the tower would be a danger because it may fall upon children and other on - site elements such as cars and batting cages. Also mentioned is the towers proximity to trees presenting a fire hazard. There is nothing notable about the proposed building that would induce children to climb upon it or result in a particularly dangerous situation. Access and maintenance of the site is very infrequent and would not be done when the field is in use. These equipment facilities are common to most wireless facilities and don't result in harm to the public. The new tower will meet the states seismic and structure safety requirements. The city's arborist explained at the ARB hearing that the species of eucalyptus trees in proximity to the cell tower are actually less likely than most to be a fire risk. The trees are also located more than 20 feet away from the cell tower. City of Palo Alto Page 8 • Painfully obvious visual nuisance. The appellant asserts that the approval would be a defining feature that would be visible from the new library, would set a dangerous precedent for cell towers in the R-1 zone district, and that it would be fundamentally incompatible with the immediate environment. Staff finds that the additional five feet of height added to an existing tower would have a minimal visual impact to the site. It's clear that the radome would be visible and there will be a change to what people are used to seeing at the ballfield, but the proposal is unlikely to result in a visual nuisance. The existing site has four 60 foot tall light towers already. The proposal adds no new towers to the site and has designed a solution that accommodates the antennas needed for improved coverage while proposing a very minimal visual change to the property. Staff finds the proposal to be compatible with the site and notes that other R-1 zoned properties developed with fire stations and churches similarly have wireless facilities . • City's risk management issue: Loss of oversight and control. Given the new FCC law, the ARB design review must take into account the reasonably foreseeable cumulative impacts of additional carriers. The appellant raises the issue of a federal law that was designed to facilitate the co -location of other wireless carries on existing cell tower sites. They assert that because the law makes co -location easier for cell companies, that it is a given that more companies will try to locate on top of the proposed cell tower. The FCC Report & Order clarifies the collocation issue which limits "substantial change in physical dimensions" where "it would defeat the existing concealment elements of the tower or base station." The order clarifies and establishes greater guidance for when co -location could be imposed by the Federal Law. If the co -location would defeat the concealment efforts the City would have authority to say no. The Palo Alto Little League is a longstanding member of the community. They have stated their intention of not allowing additional carriers to locate on top of the proposed cell tower. As the property owner, they control if and where any future wireless facility could occur on their property in conjunction with City review. There is also a condition of approval that requires a Conditional Use Permit for any future wireless facility at the site. The images provided by the opposition as to what the federal law would allow are not realistic. While the City would typically support co -location, it is not supported here because it would not likely be achievable without negatively impacting the visual aesthetic of the proposed cell tower. The ARB findings for approval are included in the Record of Land Use Action (Attachment A). Timeline The applicant has extended the Shot Clock to allow the City process to proceed unimpeded. Resource Impact As a Cost Recovery application, staff time expended in the processing of this application is born City of Palo Alto Page 9 by the applicant. Policy Implications The approval of the Cell tower proposal does not represent a change to current City Policy. Environmental Review The application is categorically exempt from the provisions of the California Environmental Quality Act (CEQA) per CEQA Guideline Sections 15301, 15302, 15303, and 15061(b)(3). Staff was able to make this "exemption" determination based upon the reports submitted by the applicant referred to in this report and available in the City's file for the project. The applicant's submittal included the Noise Report, the RF Analysis, and the Historic Report. Courtesy Copies Applicant: Charnel James Appellants: Jason Yotopoulos Charlene Liao Attachments: • Attachment A: Record of Land Use Action (DOCX) • Attachment B: Director's Approval Letter (PDF) • Attachment C: Request for Hearing (PDF) • Attachment D: Appeal of ARB(PDF) • Attachment E: Architectural Review Board Verbatim Minutes of October 16, 2014 (PDF) • Attachment F: Planning & Transportation Commission Draft Excerpt Verbatim Minutes of December 3, 2014 (DOC) • Attachment G: Appellant's Information (PDF) • Attachment H: Public Correspondence (PDF) • Attachement I: Items submitted at the December 3, 2014 PT&C Hearing (PDF) • Attachment J: Applicant's Submittal and Project Plans (hardcopies to Council and Libraries only) (PDF) City of Palo Alto Page 10 Attachment A ATTACHMENT A ACTION NO. 2014-06 RECORD OF THE COUNCIL OF THE CITY OF PALO ALTO LAND USE APPROVAL FOR 3672 MIDDLEFIELD ROAD: ARCHITECTURAL REVIEW AND CONDITIONAL USE PERMIT (14PLN-00071) On December 15, 2014, the Council of the City of Palo Alto approved the Architectural Review Board and Conditional Use Permit applications for a wireless telecommunications facility (cell tower) in the R-1 zone district. SECTION 1. Background. The City Council of the City of Palo Alto ("City Council") finds, determines, and declares as follows: A. Verizon Wireless, on behalf of Palo Alto Little League has requested the City's approval for the following items: (1)Architectural Review for the addition of three panel antennas, concealed within a radome, on a 65 foot tall light pole and associated ground mounted equipment concealed within an enclosure; (2) Conditional Use Permit to allow a standalone mono pole wireless antenna facility within a residential zone district. The property is designated on the Comprehensive Plan land use map as Single Family Residential, and is located within the Single Family Residential (R-1) zone district. B. The Planning and Transportation Commission (Commission) reviewed the Conditional Use Permit on December 3, 2014, and recommended approval. C. The Architectural Review Board (ARB) reviewed the application for Architectural Review on September 18, 2014, and again on October 16, 2014 where they recommended approval. SECTION 2. Environmental Review. The City, as the lead agency for the Project, has determined that the application is categorically exempt from the provisions 1 of the California Environmental Quality Act (CEQA) per CEQA Guideline Sections 15301, 15302, 15303, and 15061(b)(3). SECTION 3. Architectural Review Findings (1) The design is consistent and compatible with applicable elements of the Palo Alto Comprehensive Plan. This finding can be made in the affirmative in that the project complies with the policies of the Comprehensive plan as outlined in Attachment C. Specifically the proposal complies with Policy B-13, this policy states "Support the development of technologically -advanced communication infrastructure and other improvements that will facilitate the growth of emerging telecommunications industries. (2) The design is compatible with the immediate environment of the site. This finding can be made in the affirmative in that the project is designed to take advantage of existing site features, the four 60 foot tall ball field light towers. The new cell tower would replace one of the existing light towers such that there would not be an additional tower structure added to the site. The new tower would only be slightly taller at 65 feet and the antennas would be encapsulated within a radome to further reduce the visual impact to the site. The ground mounted structure would also be blended into the site by placing it between existing storage structures and painted the same color. (3) The design is appropriate to the function of the project. This finding can be made in the affirmative in that the tower and the ground mounted equipment are designed to integrate into the site and serve the function of providing better cellular service to the community while not impacting the existing use of the property. (4) In areas considered by the board as having a unified design character or historical character, the design is compatible with such character. This finding can be made in the affirmative. The property is not historic but the site does contain the unified characteristics of a baseball field. There is an ongoing effort to designate the property as a historic resource. This effort is not supported by the property owner (Palo Alto Little League). The proposal was analyzed for compliance with the Secretary of the Interior Standards for Rehabilitation to understand the projects possible impact to the 2 property if it should be found to be a historic resource. The analysis determined that the project would have no impact on the resource. The design of the cell tower and the associated equipment has been purposefully considered to have the least visual impact to the site. While the pole would be thicker than the other light poles, and it will have the five foot radome on top, these features will not degrade the character of the baseball field. By using the light pole for the cell tower, it helps to integrate the cell tower proposal with the site in such a way that results in a minimal visual change. The design alternative would entail the introduction of a new pole structure on the property that would result in a greater visual intrusion. (5) The design promotes harmonious transitions in scale and character in areas between different designated land uses. This finding can be made in the affirmative in that the light/cell tower would be only five feet taller than the existing light tower. The plan to replace an existing light tower with the new light/cell tower that is slightly taller, does promote the harmonious transition in scale and character between the existing ball field and the neighboring properties. The introduction of a new tower would have a greater visual impact than the current proposal. (6) The design is compatible with approved improvements both on and off the site. This finding can be made in the affirmative in that the project would not introduce any features (structure or uses) that would interfere with existing uses both on and off the site. The existing use and physical improvements on the little league site would not be impacted by the project. The project would also not result in negative impacts to properties in the area. (7) The planning and siting of the various functions and buildings on the site create an internal sense of order and provide a desirable environment for occupants, visitors and the general community. This finding can be made in the affirmative in that the new tower and the ground mounted equipment cabinet have been designed and sited to blend into the existing site with the least visual impact. The new light/cell tower would be in the same location as the existing light tower and the ground mounted equipment would be located in between existing storage 3 structures such that no existing on site functions such as the batting cages, the ball field, or the parking would be impacted. (8) The amount and arrangement of open space are appropriate to the design and the function of the structures. This finding can be made in the affirmative in that the proposal allows the property to continue to provide an ample amount of open space. (9) Sufficient ancillary functions are provided to support the main functions of the project and the same are compatible with the project's design concept. This finding can be made in the affirmative in that the new equipment shelter will sufficiently support the new light/cell tower and will maintain the design concept of the site. (10) Access to the property and circulation thereon are safe and convenient for pedestrians, cyclists and vehicles. This finding can be made in the affirmative in that the proposal maintains the existing safe and convenient circulation for pedestrians, cyclists and vehicles. (11) Natural features are appropriately preserved and integrated with the project. This finding can be made in the affirmative in that none of the existing trees would be impacted by the project (12) The materials, textures, colors and details of construction and plant material are appropriate expression to the design and function. This finding can be made in the affirmative in that proposal includes colors and materials to match those currently existing on site. For example the pole will be the same color and material as the existing poles on site and the equipment shelter will be painted the same dark green color as the existing storage sheds. (13) The landscape design concept for the site, as shown by the relationship of plant masses, open space, scale, plant forms 4 and foliage textures and colors create a desirable and functional environment. This finding is not applicable as there are no landscape elements included in the proposal. All existing landscaping remains as is. (14) Plant material is suitable and adaptable to the site, capable of being properly maintained on the site, and is of a variety which would tend to be drought -resistant to reduce consumption of water in its installation and maintenance. This finding is not applicable due to the fact that no landscaping is proposed as part of this application. (15) The project exhibits green building and sustainable design that is energy efficient, water conserving, durable and nontoxic, with high -quality spaces and high recycled content materials. The following considerations should be included in site and building design: Optimize building orientation for heat gain, shading, daylighting, and natural ventilation; Design landscaping to create comfortable micro -climates and reduce heat island effects; Design for easy pedestrian, bicycle and transit access; Maximize on site stormwater management through landscaping and permeable paving; • Use sustainable building materials; • Design lighting, plumbing and equipment for efficient energy and water use; • Create healthy indoor environments; and • Use creativity and innovation to build more sustainable environments. This finding can be made in the affirmative in that the proposal uses a hydrogen fuel cell backup generator that burns cleanly resulting in no air emissions. The wireless equipment is also designed to minimize power consumption and space requirements, minimizing the overall scale and materials needed. 5 (16) The design is consistent and compatible with the purpose of architectural review as set forth in subsection 18.76.020(a). This finding can be made in the affirmative in that the project design promotes visual environments that are of high aesthetic quality and variety. SECTION 4. Conditional Use Permit Findings 1. The proposed use, at the proposed location, will not be detrimental or injurious to property or improvements in the vicinity, and will not be detrimental to the public health, safety, general welfare, or convenience. The proposed telecommunications facility will be located in conjunction with an existing land use (Palo Alto Little League Baseball Field) and will not be detrimental or injurious to property or improvements in the area or to the public health, safety, general welfare or convenience. The project would not impact the current use of the site. The Wireless antenna facility is an unmanned facility that is serviced infrequently so there will be no traffic or parking impacts associated with the use. The antennas will be located on a replacement light pole with a radome to conceal the antennas from view resulting in a minimal visual impact. The ground mounted equipment is designed to blend in with the other structures on site and does create a safety hazard to on site or off site users. The structure would be painted to match the other onsite buildings to further ensure its visual compatibility. The equipment within the enclosure structure will not be accessible to the public. Appropriate conditions of approval have been added to regulate the use. 2. The proposed use will be located and conducted in a manner in accord with the Palo Alto Comprehensive Plan and the purposes of the Zoning Ordinance. Wireless Communication Facilities are allowed with Architectural Review and Conditional Use Permits as detailed in PAMC Section 18.42.110. The telecommunications facility will be located at an existing site developed as a baseball field and will be used in accordance with prescribed conditions of approval. The facility will not pose a health risk and will not interfere with the existing use or other surrounding properties. Verizon will be providing a desirable, upgraded service to Palo Alto residents and businesses, and the proposed facility will improve service in the coverage area. The proposal is consistent with the City of Palo Alto Comprehensive Plan as detailed in Comprehensive 6 Plan Compliance Table (Attachment C). Most importantly the proposal supports Comprehensive Plan Policy B-13 to support the development of advanced communication infrastructure and Policies L-7 and L-12 to evaluate changes in land use in the context of regional needs, overall City Welfare and objective as well as desires of neighbors and the preservation of neighborhood character. This proposal would serve the greater community by improving cell phone coverage in the area while also preserving the neighborhood character by having the least visual impact to the site and no impact to the current use of the property. SECTION 5. Architectural Review Approval and Conditional Use Permit Granted. Architectural Review, and Conditional Use Permit are granted by the City Council under Palo Alto Municipal Code Section 18.30(G).070, and Section 18.76.010 for application 14PLN-00071, subject to the conditions of approval in Section seven of the Record of Land Use. SECTION 6. Plan Approval. The plans submitted for Building Permit shall be in substantial conformance with those plans prepared by Stoecker and Northway Architects, consisting of 34 pages, dated July 21, 2014, and received July 29, 2014, except as modified to incorporate the conditions of approval in Section Eight. A copy of these plans is on file in the Department of Planning and Community Environment. This document, including the conditions of approval in Section eight, shall be printed on the cover sheet of the plan set submitted with the Building Permit application. SECTION 7. Conditions of Approval. Planning Division 1. The project shall be constructed in substantial conformance with the plans dated received on October 3, 2014, that are on file in planning application no. 14PLN-00071, except as modified by these conditions of approval. 2. The ARB approval letter shall be printed on the plans submitted for building permit. 3. All noise producing equipment shall not exceed the allowances specified in Section 9.10 Noise of the Palo Alto Municipal Code. 7 4. Water all active construction areas at least twice daily and more often during windy periods to prevent visible dust from leaving the site; active areas adjacent to windy periods; active areas adjacent to existing land uses shall be kept damp at all times, or shall be treated with non-toxic stabilizers or dust palliatives. 5. Cover all trucks hauling soil, sand, and other loose materials or require all trucks to maintain at least 2 feet of freeboard; 6. Pave, apply water at least three times daily, or apply (non-toxic) soil stabilizers on all unpaved access roads, parking areas and staging areas at construction sites. 7. Sweep daily (or more often if necessary) to prevent visible dust from leaving the site (preferably with water sweepers) all paved access roads, parking areas, and staging areas at construction sites; water sweepers shall vacuum up excess water to avoid runoff -related impacts to water quality. 8. Sweep streets daily, or more often if necessary (preferably with water sweepers) if visible soil material is carried onto adjacent public streets. 9. In the event that human skeletal remains are encountered, the applicant is required by County Ordinance No. B6-18 to immediately notify the County Coroner and the Director of Planning and Community Environment. Upon determination by the County Coroner that the remains are Native American, the Coroner shall contact the California Native American Heritage Commission, pursuant to subdivision (c) of Section 7050.5 of the Health and Safety Code and the County Coordinator of Indian Affairs. No further disturbance of the site may be made except as authorized by the County Coordinator of Indian Affairs in accordance with the provisions of State law and the Health and Safety Code. 10. State of California Government Code Section 66020 provides that a project applicant who desires to protest the fees, dedications, reservations, or other exactions imposed on a development project must initiate the protest at the time the development project is approved or conditionally approved or within ninety (90) days after the date that fees, dedications, reservations or exactions are imposed on the Project. Additionally, procedural requirements for protesting these development fees, dedications, reservations and exactions are set forth in Government Code Section 66020. IF YOU FAIL TO 8 INITIATE A PROTEST WITHIN THE 90 -DAY PERIOD OR FOLLOW THE PROTEST PROCEDURES DESCRIBED IN GOVERNMENT CODE SECTION 66020, YOU WILL BE BARRED FROM CHALLENGING THE VALIDITY OR REASONABLENESS OF THE FEES, DEDICATIONS, RESERVATIONS, AND EXACTIONS. If these requirements constitute fees, taxes, assessments, dedications, reservations, or other exactions as specified in Government Code Sections 66020(a) or 66021, this is to provide notification that, as of the date of this notice, the 90 -day period has begun in which you may protest these requirements. 11. This matter is subject to the California Code of Civil Procedures (CCP) Section 1094.5; the time by which judicial review must be sought is governed by CCP Section 1094.6. 12. To the extent permitted by law, the Applicant shall indemnify and hold harmless the City, its City Council, its officers, employees and agents (the "indemnified parties") from and against any claim, action, or proceeding brought by a third party against the indemnified parties and the applicant to attack, set aside or void, any permit or approval authorized hereby for the Project, including (without limitation) reimbursing the City for its actual attorneys' fees and costs incurred in defense of the litigation. The City may, in its sole discretion, elect to defend any such action with attorneys of its own choice. 13. The Applicant shall identify the Best Management Practices (BMP's) to be incorporated into a Storm Water Pollution Prevention Plan (SWPPP) for the project. The SWPPP shall include both temporary BMP's to be implemented during demolition and construction. 14. Construction hours shall be limited to 8:00am to 6:00pm Monday through Friday and 9:00am to 6:00pm on Saturdays. No construction is allowed on Sundays or Holidays as specified in Title 9 of the Municipal Code. 15. No individual piece of construction equipment shall produce a noise level exceeding one hundred ten dBA at a distance of twenty-five feet. 16. The construction noise level at any point outside of the property plane of the project shall not exceed 90 dBA. 17. Rules and regulation pertaining to all construction activities and limitations identified in this permit, along with the name and telephone number of a developer appointed disturbance coordinator, shall be posted in a prominent location 9 at the entrance to the job site. 18. If required by Public Works the applicant shall work with the Public Works Department to create a logistics plan to manage construction activities prior to building permit issuance. 19. The pole structure shall be the same color and material as the existing light poles. This includes an acid wash treatment to have the new pole look like the existing poles. 20. The radome shall be painted gray color to match the pole structure. 21. No existing parking spaces shall be eliminated as a result of this project. 22. The ground mounted equipment enclosure shall be painted the same color as the existing storage buildings located on the project site. 23. The cell tower shall not exceed 65 feet in height. 24. Any co -location of an additional wireless facility shall be subject to a Conditional Use Permit. 25. Any cables and wires associated with this application shall be located inside the cell tower pole and/or underground such that they are not visible. 26. The Radio Frequency (RF) Emissions shall not exceed Federal Standards. 27. The applicant shall have the option to select either a diesel fueled backup generator or a hydrogen fuel cell back up power supply system. 28. The plans submitted for building permit shall be amended to specify the Hardie Plank siding material rather than wood siding for the equipment enclosure siding material. Urban Forestry 29. Red Gum Eucalyptus trees at Mitchel Park to achieve perpetual 25 foot foliage clearance with strategic structural pruning through the following measures: a. The entire row of historic Red Gum Eucalyptus trees along Michel Park property line shall be perpetually maintained in a 10 consistent line with 25 foot clearance from the antennas for the life of the project. b. Each pruning event shall be approved subject to a public Tree Care Pruning Permit from Urban Forestry. Fire Department 30. The applicant shall submit a completed copy the document entitled "Optional Checklist for Local Government to Determine Whether a Facility is Categorically Excluded". If the applicant is required to submit an Environmental Assessment (EA) to the FCC, please indicate if it has been submitted and the date submitted. 31. A Fire Department key Knox Box is required if the building or site does not have 24 -hour key availability. 32. The site shall have at least one sign per owner/service provider that indicates the company's name, site # and 24 emergency number as a minimum. This labeling shall be readable from a distance not less than 25 feet. Safety labeling (in addition to any required FCC labeling) may be required if there is the ability of anyone fitting the FCC definition of "general population" who may unknowingly come within the FCC prescribed Maximum Permissible Exposure (MPE) safety range of the RF emitting device. 33. A Hazardous Materials Registration Form is required to be submitted and approved prior to bringing any hazardous materials on site. Forms also available at http://www.unidocs.org 34. A Hazardous Materials Business Plan (HMBP) is required to be submitted and approved prior to bringing any hazardous materials on site. (PAMC17.16.010). Forms are available at http://www.unidocs.org. Note: The site chemical list may be below the state Hazardous Materials Business Plan reporting thresholds but the site is not exempted from PAMC 17 hazardous materials regulations (i.e. Hazardous Materials Registration, double containment, labeling, etc.) 35. Hydrogen fuel cell power plant shall be reviewed by the Building Division for compliance with the Mechanical Code and for proper seismic anchorage of equipment and fuel containers. Hydrogen Storage shall be reviewed by the Fire Department's Hazardous Materials Bureau for approved, compatible and properly labelled containers and piping. 36. Hazardous Materials Closure (Fire Dept. Closure Permit) is 11 required prior to vacating any site which contained hazardous materials. 37. A fire extinguisher with a minimum of 2A10BC rating shall be installed. 38. A valid Use and Occupancy Permit is required. Public Works Engineering Department 39. Associated with proposed equipment installation on the private property, if any work is required that impacts the public right-of-way (construction activities in sidewalk or street area), a Street Work Permit and/or an Encroachment Permit must first be obtained from Public Works Engineering in Development Services. Urban Forestry Department 40. No trenching or excavation work will occur within the dripline (10x diameter R) of any tree. 41. If any revision or field changes occur in a tree dripline, then prior to site work preceding a tree preservation report (Tree Technical Manual, Section 2.10) shall be submitted for review/approval by Urban Forestry. Any such revision will be submitted at Development Center for routing and tracking. 42. SITE PLAN REQUIREMENTS. The final Plans submitted for building permit shall include the following information and notes on the relevant plan sheets: a. SHEET T-1, BUILDING PERMIT. The building permit plan set will include the City's full-sized, Sheet T-1 (Tree Protection -it's Part of the Plan!), available on the Development Center website at http://www.cityofpaloalto.org/civicax/filebank/documents/31783. The Applicant shall complete and sign the Tree Disclosure Statement. No tree related inspections are required unless revision or site changes require a tree preservation report, in which case Tree Activity Inspections will apply to this project. b. Add a note that states: "Contractor parking, staging and activities shall not occur in the tree root area or dripline of any tree on the project parcel, subject to $500 penalty". Additional Planning Conditions 12 43. Upon any such time the wireless communication facility or any portion thereof, is no longer being used for the approved purpose, the abandoned equipment/facility shall be removed by the applicant or property owner. 44. Revocation or Modification of Conditional Use Permit (CUP) Approval: The director may issue a notice of noncompliance for any failure to comply with any condition of this permit approval, or when a use conducted pursuant to a conditional use permit is being conducted in a manner detrimental to the public health, safety and welfare. After due process, the director may revoke or modify the original conditions of approval (PAMC 18.77.110) . SECTION 8. Term of Approval. Architectural Review and Conditional Use Permit Approval. In the event actual construction of the project is not commenced within one year of the date of council approval, the approval shall expire and be of no further force or effect, pursuant to Palo Alto Municipal Code Section 18.30(G).080. SECTION 9. Standard Conditions A. Except as expressly specified herein, the site plan, floor plans, building elevations and any additional information or representations, submitted by the Applicant during the Staff review and public hearing process leading to the approval of this entitlement, whether oral or written, which indicated the proposed structure or manner of operation, are deemed conditions of approval. B. The approved use and/or construction are subject to, and shall comply with, all applicable City ordinances and laws and regulations of other governmental agencies. PASSED: AYES: NOES: ABSENT: ABSTENTIONS: ATTEST: APPROVED: City Clerk Director of Planning and Community Environment 13 APPROVED AS TO FORM: Senior Asst. City Attorney PLANS AND DRAWINGS REFERENCED: 1. Those plans prepared by HMH Design Group entitled "Verizon Wireless Meadow Middlefield", consisting of 1 pages, dated October 2, 2014, and received on November 25, 2014. 14 Attachment B CITY OF PLANNING & COMMUNITY ENVIRONMENT • 250 Hamilton Avenue, 5th Floor Palo Alto, CA 94301 650.329.2441 Charnel James Verizon Wireless 2010 Crow Canyon Place, Suite 355 San Ramon, CA 94583 October 23, 2014 Subject: 3672 Middlefield Road 14PLN-00071, ARB and CUP Approval Dear Ms. James: On October 16, 2014, the Architectural Review Board recommended approval of the application referenced above and as described further below. The Director °of Planning and Community Environment (Director) considered the ARB's recommendation, the Board's minority opinion, public comments, and project modifications as described in attachment D and approved the project on October 22, 2014, based on Findings of Approval (Attachment A and E) and Conditions of Approval (Attachment B). The application approval also includes the Conditional Use Permit for a wireless antenna facility as proposed in the approved project plans and as described below, pursuant to the Palo Alto Municipal Code (PAMC) Sections 18.76.010(c). The Conditional Use Permit findings are included in Attachment E andthe conditions of approval are provided in Attachment B. The approval will become effective 14 days from the postmark date of this letter, unless an appeal is filed in accordance with Title 18 of the Palo Alto Municipal Code. In accordance with California Government Code Section 66.020, this is to provide you with notice of the amount of development fees and a description of the dedications, reservations, or other exactions imposed by the City of Palo Alto in connection with the project, described as follows: 3672 Middlefield Road 14PLN-000071: Request by Verizon Wireless for Architectural Review and a Conditional Use Permit (CUP) application for the addition of 3 panel antennas on a 65 foot tall light pole at the Palo Alto Little League Field, and associated ground mounted equipment concealed within an enclosure. Zone District. R-1(8000). C:I£y®{PaIoAitoonrg Printed with soy -based inks on 100% recycled paper processed without chlorine. Environmental Assessment: Categorically exempt from the provisions of the California Environmental Quality Act (CEQA) per the following CEQA Guideline Sections: • 15061(b)(3) CEQA General Rule - CEQA only applies to projects which have the potential for causing a significant effect on the environment. The analysis of this project has determined that it does not have the potential to cause a significant effect on the environment and is therefore exempt from CEQA. • 15301 Existing Facilities — Minor alterations to existing facilities are exempted from CEQA. The proposed wireless antennas facility is a minor alteration to the existing ball park facility and is therefore exempt from CEQA. • 15302 Replacement and Reconstruction — The replacement or reconstruction of existing facilities are exempt from CEQA. The replacement of the light pole with a new light pole that is substantially the same is therefore exempt from CEQA, • 15303 New Construction or Conversion of Small Structures — The construction of new small structures is exempt from CEQA. The proposal includes the construction of a small structure to house the ground mounted equipment and is therefore exempt from CEQA. The fees, dedications, reservations or other exactions imposed by the City in connection with your development project are described in your conditions of approval and included by reference in the approved development plans. Government Code Section 66020 provides that project applicant who desires to protest the fees, dedications, reservations, or other exactions imposed on a development project must initiate the protest at the time the development project is approved or conditionally approved or within ninety (90) days after the datethatfees, dedications, reservations or exactions are imposed on the project. Any protest regarding the amount of the development fees or the nature of the dedications, reservations or exactions imposed in connection with your project must be initiated not later than ninety (90) calendar days following the date of this letter. Additionally procedural requirements for protesting these development fees, dedications, reservations and exactions are set forth in Government Code Section 66020. IF YOU FAIL TO INITIATE A PROTEST WITHIN THE 90 -DAY PERIOD OR TO FOLLOW THE PROTEST PROCEDURES DESCRIBED IN GOVERNMENT CODE SECTION 66020, YOU WILL BE BARRED FROM CHALLENGING THE VALIDITY OR REASONABLENESS OF THE FEES, DEDICATIONS, RESERVATIONS, AND EXACTIONS DESCRIBED ABOVE. If you have any questions regarding the amount of the development fees or the nature of the dedications, reservations or exactions imposed in connection with your project, please contact me at the email address below. Unless an appeal is filed, this project approval shall be effective for one year from November 5, 2014, within which time construction of the project shall have commenced. Application for extension may be made prior to the expiration on November 5, 2015. The time period for a project may be extended once for an additional year by the Director of Planning and shall be open to appeal at that time. In the event the building permit is not secured for the project within the time limits specified above, the Architectural Review Board approval shall expire and be of no further force or effect. The CUP permit is granted in accordance with and subject to the provisions of PAMC Chapter 18,76.010 and 18,76.020. In accordance with the provisions of PAMC Chapter 18.77.060 (c), any person may request a hearing of conditional use permit before the planning and Transportation Commission or the architectural review before the Architectural Review Board. Such request must be made in writing to the Planning Division within 14 calendar days of the publication of this decision. This conditional use permit and architectural review approval will become effective on the 15th day. In the event that a hearing is requested, an additional letter will be mailed with information regarding the scheduled hearing dates before the Planning and Transportation Commission and the City Council. The project approval shall be effective for one year from November 5, 2014, within which time construction ofthe project shall have commenced. Application for extension may be made prior to the expiration on November 5, 2015. Should you have any questions regarding this ARB action, please do not hesitate to contact the Project Planner, Russ Reich, by email at russ.reich@citvofpaloalto.org or by phone at (650) 617_ 3119. Sincere y, HiII. ry G' elman Direct +r of Planning and Community Environment Attachments: A: ARB Findings B: Conditions of Approval C: Comprehensive Plan Conformance Table D: Project Approval Summary ATTACHMENT A FINDINGS FOR APPROVAL ARCHITECTURAL REVIEW BOARD STANDARDS FOR REVIEW 3672 Middlefield Road / File No. 14PLN-00071 The design and architecture of the proposed project, as conditioned, complies with the Findings for Architectural Review as required in PAMC Chapter 18.76. (1) The design is consistent and compatible with applicable elements of the Palo Alto Comprehensive Plan. This finding can be made in the affirmative in that the project complies with the policies of the Comprehensive plan as outlined in Attachment C. Specifically the proposal complies with Policy 13-13, this policy states "Support the development of technologically -advanced communication infrastructure and other improvements that will facilitate the growth of emerging telecommunications industries, (2) The design is compatible with the immediate environment of the site. This finding can be made in the affirmative in that the project is designed to take advantage of existing site features, the four 60 foot tall ball field light towers. The new cell tower would replace one of the existing light towers such that there would not be an additional tower structure added to the site. The new tower would only be slightly taller at 65 feet and the antennas would be encapsulated within a radome to further reduce the visual impact to the site. The ground mounted structure would also be blended into the site by placing it between existing storage structures and painted the same color. (3) The design is appropriate to the function of the project. This finding can be made in the affirmative in that the tower and the ground mounted equipment are designed to integrate into the site and serve the function of providing better cellular service to the community while not impacting the existing use of the property. (4) In areas considered by the board as having a unified design character or historical character, the design is compatible with such character. This finding can be made in the affirmative. The property is not historic but the site does contain the unified characteristics of a baseball field. There is an ongoing effort to designate the property as a historic resource. This effort is not supported by the property owner (Palo Alto Little League). The proposal was analyzed for compliance with the Secretary of the Interior Standards for Rehabilitation to understand the projects possible impact to the property if it should be found to be a historic resouree. The analysis determined that the project would have no impact on the resource. The design of the cell tower and the associated equipment has been purposefully considered to have the least visual impact to the site. While the pole would be thicker than the other light poles, and it will have the five foot radome on top, these features will not degrade the character of the baseball field. By using the light pole for the cell tower, it helps to integrate the cell tower proposal with the site in such a way that results in a minimal visual change. The design alternative would entail the introduction of a new pole structure on the property that would result in a greater visual intrusion. (5) The design promotes harmonious transitions in scale and character in areas between different designated land uses. This finding can be made in the affirmative in that the light/cell tower would be only five feet taller than the existing light tower. The plan to replace an existing light tower with the new lighticell tower that is slightly taller, does promote the harmonious transition in scale and character between the existing ball field and the neighboring properties. The introduction of a new tower would have a greater visual impact than the current proposal. (6) The design is compatible with approved improvements both on and off the site. This finding can be made in the affirmative in that the project would not introduce any features (structure or uses) that would interfere with existing uses both on and off the site. The existing use and physical improvements on the little league site would not be impacted by the project. The project would also not result in negative impacts to properties in the area. (7) The planning and siting of the various functions and buildings on the site create an internal sense of order and provide a desirable environment for occupants, .visitors and the general community. This finding can be made in the affirmative in that the new tower and the ground mounted equipment cabinet have been designed and sited to blend into the existing site with the least visual impact. The new lighticell tower would be in the same location as the existing light tower and the ground mounted equipment would be located in between existing storage structures such that no existing on site functions such as the batting cages, the ball field, or the parking would be impacted. (8) The amount and arrangement of open space are appropriate to the design and the function of the structures. This finding can be made in the affirmative in that the proposal allows the -property to continue to provide an ample amount of open space. Sufficient ancillary functions are provided to support the main functions of the project and the same are compatible with the project's design concept. This finding can be made in the affirmative in that the new equipment shelter will sufficiently support the new light/cell tower and will maintain the design concept of the site. (10) Access to the property and circulation thereon are safe and convenient for pedestrians, cyclists and vehicles. This finding can be made in the affirmative in that the proposal maintains the existing safe and convenient circulation for pedestrians, cyclists and vehicles. (9) (11) Natural features are appropriately preserved and integrated with the project. This finding can be made in the affirmative in that none of the existing trees would be impacted by the project (12) The materials, textures, colors and details of construction and plant material are appropriate expression to the design and function. This finding can be made in the affirmative in that proposal includes colors and materials to match those currently existing on site. For example the pole will be the same color and material as the existing poles on site and the equipment shelter will be painted the same dark green color as the existing storage sheds. (13) The landscape design concept for the site, as shown by the relationship of plant masses, open space, scale, plant forms and foliage textures and colors create a desirable and functional environment. This finding is not applicable as there are no landscape elements included in the proposal. All existing landscaping remains as is. (14) Plant material is suitable and adaptable to the site, capable of being properly maintained on the site, and is of a variety which would tend to be drought -resistant to reduce consumption of water in its installation and maintenance. This finding is not applicable due to the fact that no landscaping is proposed as part of this application. (15) The project exhibits green building and sustainable design that is energy efficient, water conserving, durable and nontoxic, with high -quality spaces and high recycled content materials. The following considerations should be included in site and building design: • Optimize building orientation for heat gain, shading, daylighting, and natural ventilation; • Design landscaping to create comfortable micro -climates and reduce heat island effects; • Design for easy pedestrian, bicycle and transit access; • Maximize on site stormwater management through landscaping and permeable paving; • Use sustainable building materials; • Design lighting, plumbing and equipment for efficient energy and water use; • Create healthy indoor environments; and • Use creativity and innovation to build more sustainable environments. This finding can be made in the affirmative in that the proposal uses a hydrogen fuel cell backup generator that burns cleanly resulting in no air emissions. The wireless equipment is also designed to minimize power consumption and space requirements, minimizing the overall scale and materials needed. (16) The design is consistent and compatible with the purpose of architectural review as set forth in subsection 18.76.020(a). This finding can be made in the affirmative in that the project design promotes visual environments that are of high aesthetic quality and variety. ATTACHMENT B CONDITIONS OF APPROVAL 3672 Middlefield Road/ File No. 14PLN-00071 Planning Division 1. The project shall be constructed in substantial conformance with the plans dated received on October 3, 2014, that are on file in planning application no. 14PLN-00071, except as modified by these conditions of approval. 2. The ARB approval letter shall be printed on the plans submitted for building permit. 3. All noise producing equipment shall not exceed the allowances specified in Section 9.10 Noise of the Palo Alto Municipal Code. 4. Water all active construction areas at least twice dailyand more often during windy periods to prevent visible dust from leaving the site; active areas adjacent to windy periods; active areas adjacent to existing land uses shall be kept damp at all times, or shall be treated with non-toxic stabilizers or dust palliatives. 5. Cover all trucks hauling soil, sand, and other loose materials or require all trucks to maintain at least 2 feet of freeboard; 6. Pave, apply water at least three times daily, or apply (non-toxic) soil stabilizers on all unpaved access roads, parking areas and staging areas at construction sites. 7. Sweep daily (or more often if necessary) to prevent visible dust from leaving the site (preferably with water sweepers) all paved access roads, parking areas, and staging areas at construction sites; water sweepers shall vacuum up excess water to avoid runoff -related impacts to water quality. 8. Sweep streets daily, or more often if necessary (preferably with water sweepers) if visible soil material is carried onto adjacent public streets. 9. In the event that human skeletal remains are encountered, the applicant is required by County Ordinance No. B5-18 to immediately notify the County Coroner and the Director of Planning and Community Environment. Upon determination by the County Coroner that the remains are Native American, the Coroner shall contact the California Native American Heritage Commission, pursuant to subdivision (c) of Section 7050.5 of the Health and Safety Code and the County Coordinator of Indian Affairs. No further disturbance of the site may be made except as authorized by the County Coordinator of Indian Affairs in accordance with the provisions of State law and the Health and Safety Code. 3672 Middlefield Road 14PLN-00071 Page 2 10. State of California Government Code Section 66020 provides that a project applicant Who desires to protest the fees, dedications, reservations, or other exactions imposed on a development project must initiate the protest at the time the development project is approved or conditionally approved or within ninety (90) days after the date that fees, dedications, reservations or exactions are imposed on the Project. Additionally, procedural requirements for protesting these development fees, dedications, reservations and exactions are set forth in Government Code Section 66020. IF YOU FAIL TO INITIATE A PROTEST WITHIN THE 90 -DAY PERIOD OR FOLLOW THE PROTEST PROCEDURES DESCRIBED IN GOVERNMENT CODE SECTION 66020, YOU WILL BE BARRED FROM CHALLENGING THE VALIDITY OR REASONABLENESS OF THE FEES, DEDICATIONS, RESERVATIONS, AND EXACTIONS. If these requirements constitute fees, taxes, assessments, dedications, reservations, or other exactions as specified in Government Code Sections 66020(a) or 66021, this is to provide notification that, as of the date of this notice, the 90 -day period has begun in which you may protest these requirements. 11. This matter is subject to the California Code of Civil Procedures (CCP) Section 1094.5; the time by which judicial review must be sought is governed by CCP Section 1094.6. 12. To the extent permitted bylaw, the Applicant shall indemnify and hold harmless the City, its City Council, its officers, employees and agents (the "indemnified parties") from and against any claim, action, or proceeding brought by a third party against the indemnified parties and the applicant to attack, set aside or void, any permit or approval authorized hereby for the Project, including (without limitation) reimbursing the City for its actual attorneys' fees and costs incurred in defense of the litigation. The City may, in its sole discretion, elect to defend any such action with attorneys of its own choice. 13. The Applicant shall identify the Best Management Practices (BMP's) to be incorporated into a Storm Water Pollution Prevention Plan (SWPPP) for the project. The SWPPP shall include both temporary BMP's to be implemented during demolition and construction. 14. Construction hours shall be limited to 8:00am to 6:00pm Monday through Friday and 9:00am to 6:00pm on Saturdays. No construction is allowed on Sundays or Holidays as specified in Title 9 of the Municipal Code. 15. No individual piece of construction equipment shall produce a noise level exceeding one hundred ten dBA at a distance of twenty-five feet. 16. The construction noise level at any point outside of the property plane of the project shall not exceed 90 dBA. 17. Rules and regulation pertaining to all construction activities and limitations identified in this permit, along with the name and telephone number of a developer appointed disturbance coordinator, shall be posted in a prominent location at the entrance to the job site. 3672 Middiefieid Road 14PLN-00071 Page 3 18. If required by Public Works the applicant shall work with the Public Works Department to create a logistics plan to manage construction activities prior to building permit issuance. 19. The pole structure shall be the same color and material as the existing light poles. This includes an acid wash treatment to have the new pole look like the existing poles. 20. The radome shall be painted gray color to match the pole structure. 21, No existing parking spaces shall be eliminated as a result of this project. 22. The ground mounted equipment enclosure shall be painted the same color as the existing storage buildings located on the project site. 23. The cell tower shall not exceed 65 feet in height. 24. Any co -location of an additional wireless facility shall be subject to a Conditional Use Permit. 25. Any cables and wires associated with this application shall be located inside the cell tower pole and/or underground such that they are not visible. 26. The Radio Frequency (RF) Emissions shall not exceed Federal Standards. 27. The applicant shall have the option to select either a diesel fueled backup generator or a hydrogen fuel cell back up power supply system. 28. The plans submitted for building permit shall be amended to specify the Hardie Plank siding material rather than wood siding for the equipment enclosure siding material. Urban Forestry 29. Red Gum Eucalyptus trees at Mitchel Park to achieve perpetual 25 foot foliage clearance with strategic structural pruning through the following measures: a. The entire row of historic Red Gum Eucalyptus trees along Michel Park property line shall be perpetually maintained in a consistent line with 25 foot clearance from the antennas for the life of the project. b. Each pruning event shall be approved subject to a public Tree Care Pruning Permit from Urban Forestry. Fire Department 30. The applicant shall submit a completed copy the document entitled "Optional Checklist for Local Government to Determine Whether a Facility is Categorically Excluded". If the 3672 Middlefield Road 14PLN-00071 Page 4 applicant is required to submit an Environmental Assessment (EA) to the FCC, please indicate if it has been submitted and the date submitted. 31. A Fire Department key Knox Box is required if the building or site does not have 24 -hour key availability. 32. The site shall have at least one sign per owner/service provider that indicates the company's name, site # and 24 emergency number as a minimum. This labeling shall be readable from a distance not less than 25 feet. Safety labeling (in addition to any required FCC labeling) may be required if there is the ability of anyone fitting the FCC definition of "general population" who may unknowingly come within the FCC prescribed Maximum Permissible Exposure (MPE) safety range of the RF emitting device. 33. A Hazardous Materials Registration Form is required to be submitted and approved prior to bringing any hazardous materials on site. Forms also available at http://www.unidocs.org 34. A Hazardous Materials Business Plan (HMBP) is required to be submitted and approved prior to bringing any hazardous materials on site. (PAMC17.16.010). Forms are available at http://www.unidocs.org. Note: The site chemical list may be below the state Hazardous Materials Business Plan reporting thresholds but the site is not exempted from PAMC 17 hazardous materials regulations (i.e. Hazardous Materials Registration, double containment labeling, etc.) 35. Hydrogen fuel cell power plant shall be reviewed by the Building Division for compliance with the Mechanical Code and for proper seismic anchorage of equipment and fuel containers. Hydrogen Storage shall be reviewed by the Fire Department's Hazardous Materials Bureau for approved, compatible and properly labelled containers and piping. 36. Hazardous Materials Closure (Fire Dept. Closure Permit) is required prior to vacating any site which contained hazardous materials. 37. A fire extinguisher with a minimum of 2A10BC rating shall be installed. 38. A valid Use and Occupancy Permit is required. Public Works Engineering Department 39. Associated with proposed equipment installation on the private property, if any work is required that impacts the public right-of-way (construction activities in sidewalk or street area), a Street Work Permit and/or an Encroachment Permit must first be obtained from Public Works Engineering in Development Services. Urban Forestry Department 3672 Middlefield Road 14PLN-00071 Page 5 40 No trenching or excavation work will occur within the dripline (10x diameter R) of any tree. 41. If any revision or field changes occur in a tree dripline, then prior to site work preceding a tree preservation report (Tree Technical Manual, Section 2.10) shall be submitted for review/approval by Urban Forestry. Any such revision will be submitted at Development Center for routing and tracking. 42. SITE PLAN REQUIREMENTS. The final Plans submitted for building permit shall include the following information and notes on the relevant plan sheets: a. SHEET T-1, BUILDING PERMIT. The building permit plan set will include the City's full-sized, Sheet T-1 (Tree Protection -it's Part of the Plan!), available on the Development Center website at http://www.cityofpaloalto.org/civicax/filebank/documents/31783. The Applicant shall complete and sign the Tree Disclosure Statement. No tree related inspections are required unless revision or site changes require a tree preservation report, in which case Tree Activity Inspections will apply to this project. b. Add a note that states: "Contractor parking, staging and activities shall not occur in the tree root area or dripline of any tree on the project parcel, subject to $500 penalty". Additional Planning Conditions 43. Upon any such time the wireless communication facility or any portion thereof, is no longer being used for theapproved purpose, the abandoned equipment/facility shall be removed by the applicant or property owner. 44. Revocation or Modification of Conditional Use Permit (CUP) Approval: The director may issue a notice of noncompliance for any failure to comply with any condition of this permit approval, or when a use conducted pursuant to a conditional use permit is being conducted in a manner detrimental to the public health, safety and welfare. After due process, the director may revoke or modify the original conditions of approval (PAMC 18.77.110). ATTACHMENT C COMPREHENSIVE PLAN TABLE 3672 Middlefield Road / File No. 14PLN-00071 Policy L-7: Evaluate changes in land use in the context of regional needs, overall City welfare and objectives, as well as the desires of surrounding neighborhoods. The addition of the cell tower use to the site improves wireless coverage for the area while having a very minimal visual impact to the site. It also has no impact on the existing use of the property. Some in the surrounding neighborhood oppose the tower for various reasons but others have expressed the desire to have the tower to improve their cell service. This cell tower design, a 65 foot tall pole now reduced to an 18 inch, diameter to support antennas at the top and lighting at 60 feet, would not be incompatible with adjacent structures (particularly, the 60 foot tall light poles) nor with the residential neighborhood located across Middlefield Road. Some neighbors have made statements that the placement of a cell tower in a residential neighborhood should not be allowed and that they should be limited to commercial areas of town only. For residents to have good cellular phone service, cell towers are necessary in one form or another within residential neighborhoods. Placing them only in commercial areas would be inadequate to provide service to the neighborhoods, unless they were much taller, which could cause significant visual impact to the community. There are already several existing cell tower facilities in close proximity to the project site within the neighborhood. This application preserves the neighborhood by proposing a tower that would have a minimal visual impact to the neighborhood. The four 60 foot ball park light towers are already a part of the neighborhood fabric. The addition of 5 feet in height for the new antennas is a very minor change. Policy L-12: Preserve the character of residential neighborhoods by encouraging new structures or remodel structures to be compatible with the neighborhood and adjacent structures. Policy L-48: Promote high quality, creative design and site planning that is compatible with surrounding development and public spaces Theproposed facility would be compatible with surrounding development and public spaces, since the proposed design is a stealth facility tower that also functions as one of four ball field light towers on the site. It would be five feet taller and Policy L-51: Encourage public ,and private upkeep and preservation of resources that have historic merit, including residences listed in the historic inventory. would have a thicker pole structure (by six inches), but the visual impact of these modifications are very minor in comparison to other possible alternatives such as adding additional height to other cell towers on nearby Middlefield Road properties (specifically, the "flagpole" at Station 4 or the "tree" at Acheive. The design of the tower and its equipment shelter purposefully integrate with the existing ballpark property. The height of existing trees as well as the other light towers, help to minimize the visual impact of the proposed tower. While the subject property is not a designated historic resource, there are some members of the community that have begun an effort to have the property designated as a historic resource. The proposed cell tower application has been analyzed by a qualified outside consultant to determine if the project would negatively impact the property, if it was in fact found to be a historic resource. The analysis concluded that the project would not impact the resource. Income from the project may help the property owner to preserve, maintain, and rehabilitate the remaining historic structures on the site, and continue to use the site as a ballfield.. While the proposed Verizon facility is not a piece of the public utility infrastructure, it is a private component of the utility infrastructure within the City. The communications network is a vital service for the community that is proposed to be improved by this application. This improvement is proposed in such a way that is does meet high quality urban design standards as it is designed to have the least visual impact and' fits into the site and neighborhood.' Art was not used in this installation as it would potentially call greater attention in an instance that less visual impact is desired. One does not need to look very far to see our utility infrastructure. It is everywhere we look. Large transformers and unattractive utility poles are a common part of the neighborhood fabric. This application has proposed a utility facility that would present a kinder and gentler Policy L-79: Design public infrastructure including paving, signs, utility structures, parking garages and parking lots to meet high quality urban design standards. Look for opportunities to use art and artists in the design of public infrastructure. Remove or mitigate elements of existing infrastructure that are unsightly or visually disruptive. design aesthetic than that which already exists. This is the goal of the design review process and this application represents a good example of how an otherwise unattractive utility feature (a cell tower) has been thoughtfully designed such that it is well integrated into the built environment. Goal H-1: Ensure the preservation of the unique character of the city's residential neighborhoods. And Goal 11-2: Support the construction of housing near schools, transit, parks, shopping, employment, and cultural institutions. Policy N-17: Preserve and protect heritage trees, including native oaks and other significant trees, on public and private property. N-27: Reduce emission of particulates from wood burning stoves, construction activity, and automobiles, and other sources. Policy N-30: Minimize the use of toxic and hazardous materials. Encourage the use of alternative materials and practices that are environmentally benign. Some members of the community have commented that the approval of the cell tower at the ball park site would violate the City's Comprehensive Plan related to the preservation of residential uses and the preservation of residential neighborhoods. This is not accurate. The approval of the cell tower application would not convert a residentially zoned property to a commercial use. The current use is not residential. The primary use of the site would remain a private recreational facility, the same use that has existed on the site for over 60 years. The cell tower would not impact the existing use or the neighborhood nor would it prevent the property from being developed for single family housing in the future. The cell tower proposal does not represent the redevelopment of the site for a new use; the existing use will remain. The proposal preserves all the significant trees on the property. No trees would be impacted by the proposed development. The proposal includes a hydrogen fuel cell backup power supply that has no emission of particulates'or toxic s rather than the typical diesel generator. The hydrogen fuel cell system is a superior environmentally friendly alternative to diesel. It is quieter, has no toxic air emissions and eliminates the, need for the storage of gallons of diesel fuel on site. Policy N-39: Encourage the location of land uses in areas the compatible noise environments. Use the guidelines in the table "Land Use Compatibility for Community Noise Environment" to determine compatibility. Policy N-40: Evaluate the potential for noise pollution and ways to reduce noise The proposed facility would not generate noise that would exceed these guidelines nor would it generate any noise that would impact adjacent uses or residences. A noise study has been conducted to ensure that any noise source will comply with the City's noise ordinance and these Comprehensive Plan Policies. impacts when reviewing development and activities in Palo Alto and surrounding communities. Policy B-13: Support the development of technologically -advanced communication infrastructure and other improvements that will facilitate the growth of emerging telecommunications industries. Policy B-14: Work with electronic information network providers to maximize potential benefits for Palo Alto businesses, schools, residences, and other potential users. Approval of the wireless cell tower application would support this advanced communication technology (wireless communication) improve service to the community. and Attachment D Project Approval summary 3672 Middlefield Road 14PLN-00071 The director of Planning and community Environment carefully considered the ARB recommendation for this project as well the ARB's minority opinion, public comments, and other evidence presented during the review process. The project is in proximity of a residential neighborhood and staff and the Director viewed the project's compatibility with the nearby residential uses as a primary issue about which reasonable people can disagree. In such instances, it is natural to give weight to the ARB's formal recommendation and the project modifications that have been incorporated (along with conditions of approval) to address stated concerns. The following summary describes the concerns raised by the public, the Architectural Review Board (ARB), and City Staff and describes how the project changed through the review process to address those concerns. Project Goal The intent of the project is to provide better cell phone service for Verizon's customers in the south Palo Alto area. Currently the cell phone coverage in that area for Verizon customers is poor as we have heard from many neighbors that have submitted comments in support of the application. Project History The initial project concept was submitted to the City over four years ago. Since that time, staff has worked with the applicant and the community to reach a design solution that was satisfactory to everyone. The initial concept was a tree pole. The neighbors expressed concerns over the visual impact of the fake tree and the equipment enclosure due to the close proximity to Middlefield Road. Staff also highlighted issues related to the proposed height of the tree pole exceeding the allowable height limitas well as its close proximity to the street. Staff was also concerned that theAree design would have stood out due to the fact that the tree pole would have stood alone and was not surrounded by other trees of a similar species or height. The applicant revised the proposal and moved the antenna/tree pole and the equipment enclosure further back on the site. They also reduced the height of the tree pole to meet the 65 foot height limit for cell towers. The neighbors still did not like the visual impact of the tree pole and staff was concerned that this revised plan included the removal of several mature trees. Around this same time, AT&T had withdrawn their prior request to locate new antennas on two of the ball field light poles. Staff suggested that Verizon revise their application to locate their antennas on the light poles to reduce the visual impact to the site by not adding any new poles but to use the existing ball field light poles instead. Staff felt this would solution would minimize the visual impact of the antennas instalation. Verizon revised their application to eliminate the fake tree pole design and add two new light poles at the rear of the property with antennas on one of the new light poles. This was partially motivated by the ball park's desire to create a separate use area at the rear of the property and use the Verizon application as an opportunity to pay for the new lighting of that area. The neighbors expressed concern over new lighting being added to the site. Due to the fact that the new lighting, at the proposed 60 foot height, would require a variance approval, it was recommended that the applicant not proceed with this proposal and instead locate on the existing light towers. The applicant withdrew the application and filed a new application on February 27, 2014. This new proposal included six new antennas to be located on two of the existing light poles. The equipment enclosure was relocated to be further back on the site. After neighborhood meetings, the applicant revised the proposal to eliminate three of the proposed antennas. The resulting application impacted only one of the four existing light poles on the site rather than two as initially proposed. Staff was satisfied that the applicant had now proposed a design concept that had the least visual impact to the property and the application was advanced forward to the Architectural Review Board for review and recommendation to the Director. Additional Neighbor Concerns With the new application came a new series of opposition from the small group of nearby neighbors. One individual has submitted a nomination to have the Little League ball park designated as a local historic resource. The applicant provided a historic analysis that found the property is not eligible for State or National Historic Registers. The City hired an independent historic consultant to conduct a peer review of the applicant's historic analysis and they concurred with the Historic analysis finding that the property is not eligible for listing as a historic resource. The City's consultant went further and analyzed if the property was eligible for listing on the City's local historic inventory and they found that it was also ineligible for local listing as well. The City's consultant was also directed to analyze the Verizon proposal as if the property were historic under the Secretary of the Interiors Standards for Reliabilitation to ensure that if the property was found to be a historic resource, that the proposal would have no impact on the resource. The Analysis determined that the Verizon proposal would not impact the existing use or the existing structures and would not have a detrimental impact to the property even in the event that it was found to be historic. The Historic Resources Board voted to not recommend the property's nomination for listing on the City's local Historic Inventory. Two days prior to the ARB hearing the opposition submitted a large 69 page document that has challenged the process and the Little League's existing Conditional Use Permit for the Ball field and the ball field lighting. There are no current or active code enforcement issues with the Ball field's CUP for the lighting or for the ball field itself. Staff finds the items stated in the document to be inaccurate, baseless and irrelevant to the Verizon cell tower application. ARB Changes The ARB heard the item on September 18, 2014. The ARB questioned a few items such as the thickness of the replacement pole, the color of the replacement pole, and the architectural details of the ground mounted equipment enclosure. The applicant returned to the ARB on October 16, 2014 providing several revisions in response to the ARB's comments. This included clarification of the proposed replacement pole thickness as being 18 inches, options for the color of the replacement pole, and revisions to the equipment enclosure to make if fit in better architecturally with the other structures on the site. The ARB appreciated the changes to the project and moved to approve it. Board Member Lee recommended a friendly amendment to the approval motion that the radome be painted a sky blue color, with the intention of having the radome be less visible if it was able to blend into the sky color. The amendment was not accepted and the ARB approved the project on a 3-1-01 vote. Board member Popp was recused due to his professional involvement with the project. ATTACHMENT E CONDITIONAL USE PERMIT FINDINGS 3672 Middlefield Road / File No. 14PLN-00071 Conditional Use Permit approval is based on the findings indicated under PAMC Section 18.76.010 and is subject to the Conditions of Approval provided in Attachment B: 1. The proposed use, at the proposed location, will not be detrimental or injurious to property or improvements in the vicinity, and will not be detrimental to the public health, safety, general welfare, or convenience. The proposed telecommunications facility will be located in conjunction with an existing land use (Palo Alto Little League Baseball Field) and will not be detrimental or injurious to property or improvements in the area or to the public health, safety, general welfare or convenience. The project would not impact the current use of the site. The Wireless antenna facility is an unmanned facility that is serviced infrequently so there will be no traffic or parking impacts associated with the use. The antennas will be located on a replacement light pole with a radome to conceal the antennas from view resulting in a minimal visual impact. The ground mounted equipment is designed to blend in with the other structures on site and does create a safety haze d to on site or off site users. The structure would be painted to match the other onsite buildings to further ensure its visual compatibility. The equipment within the enclosure structure will not be accessible to the public. Appropriate conditions of approval have been added to regulate the use. 2. The proposed use will be located and conducted in a manner in accord with the Palo Alto Comprehensive Plan and the purposes of the Zoning Ordinance. Wireless Communication Facilities are allowed with Architectural Review and Conditional Use Permits as detailed in PAMC Section 18.42.110. The telecommunications facility will be located at an existing site developed as a baseball field and will be used in accordance with prescribed conditions pf approval. The facility will not pose a health risk and will not interfere with the existing use or other surrounding properties. Verizon will be providing a desirable, upgraded service to Palo Alto residents and businesses, and the proposed facility will improve service in the coverage area. The proposal is consistent with the City of Palo Alto Comprehensive Plan as detailed in Comprehensive Plan Compliance Table (Attachment C). Most importantly the proposal supports Comprehensive Plan Policy B-13 to support the development of advanced communication infrastructure and Policies L-7 and L-12 to evaluate changes in land use in the context of regional needs, overall City Welfare and objective as well as desires of neighbors and the preservation of neighborhood character. This proposal would serve the greater community by improving cell phone coverage in the area while also preserving the neighborhood character by having the least visual impact to the site and no impact to the current use of the property. Attachment C From: Jason Yotopoulos To: Gitelman. Hillary' French. Amy Cc: Sootwood. Alicia' Reich, Russ Su bj ect: Appeal of Directors Tentative Celitower CUP Decision Date: Monday, November 10, 2014 2:17:27 PM Attachments: imaoe003.onq image004.pnq Director Gitelman, Planning & Transportation Commission, City Council, On October 23rd, the Palo Alto Director of Planning & Community Environment tentatively approved the largest cellphone tower ever in a residential area in all of Palo Alto. The proposed tower would be 65 feet high and located in the Palo Alto Little League field on Middlefield Road. This tower has been a lightning rod for our neighborhood and residents, as the NBC Bay Area TV coverage from that Thursday afternoon highlighted. Dozens of residents have presented their case against the tower on behalf of approximately a hundred households that oppose the Ballpark cell tower. Pa loAltoCellTower.mp4 Many residents are frustrated with the lack of transparency in the City of Palo Alto planning process. Residents therefore hired a professional planner and wireless expert to independently review the Verizon proposal. This analysis has validated a significant set of concerns and violations regarding the proposed cell tower in the more than 70 pages of substantial documentation produced by the consultant, which is attached for your review. https//www.dropbox.com/s/yauwhoezvd9yfxr/3672%20Middlefield%20Road%20Kreines%20Report.pdf?d1=0 This letter is to appeal the Director's decision for a number of reasons which can be found in the report with detailed substantiation, including the following: • Decision Under Duress, Compromising Due Process: Verizon is threatening legal action, using the FCC "shot clock" to force a quick decision, yet important details remain unaddressed in this proposal. In addition, a set of inconsistencies exist in Verizon's plan (existing building specifications do not meet requirements of equipment designed for outdoors which it encloses or the requirement for separation of incompatible materials or the clearance requirements, unclear emergency temporary generator operation, no construction detail, application was never frozen so departments are approving old versions on an application that is a moving target weekly, etc.) • Inconsistent CUP History, Target Site Is Out of Compliance Today: The proposed expansion in building size of an existing conditional use requires the amendment of an existing CUP per City ordinance (per Title 18 Zoning 18.76.010.b2). With at least four existing CUPs in violation and numerous unpermitted additions, this project cannot be approved without amending the site's primary CUP, which will require dealing with the site's non-compliance of all of its current CUPs (lighting, pole height, 3 new unpermitted buildings, fence height, structures within R-1 encroachment area, no permit for easement, lights shining in neighbor windows, etc.). And the property's permitting history is significantly inconsistent, as can be seen below and found in the report. History of Permitting at 3672 Middlefield 2014_ OA bowl cup??? 2008:08P1k- 00028 instil Posts 1965=2008- A new CUP can notbeissueeduntil atleast theniostrecent CUP and no —compliant additionsare brought into comp iaice OR PALL remains non -compliant w ith no CUP Zizzonsed as • Residential Community: Not only is the project incompatible with a residential neighborhood, the property is zoned as R1 in the City's Comprehensive Plan and the new lease, use and easement rights compromise this planned use by the city. Should the property owner, a California corporation with a continually changing managing board, decide to sell the property for the significant profit it could offer, the property would no longer be viable under its current zoning, R1-8000. Allowing cell towers, hazardous materials, and third party access easements traversing the only property ingress/egress area, all protected under Federal law is akin to a de -facto zoning change, but without the proper City process or community oversight. • Loss of City Oversight and Control: Given a new Federal law signed by President Obama in 2012 and ratified by the FCC Friday October 17th, 2014 (Middle Class Tax Relief & Job Creation Act of 2012), once a cell tower is constructed, "a State or local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station"with the term substantial defined as tower size increases to 20 feet in height and 20 feet in diameter, per upgrade, with no maximum height specified. This means that the City may not deny any request to add additional carriers who wish to collocate at this address (either on the same tower or on a new tower) and may not deny any application for the existing carrier (in this case Verizon Wireless) to upgrade or improve their existing equipment. Federal law has jurisdiction wherever it is defined, state law follows where Federal law is left undefined, and local ordinance follows where no Federal or state jurisdiction exists. As of October 17th for the first time, this Federal law trumps our City ordinance of a 65' height limit, any local "requirement" for a new CUP, or any other locally imposed requirement meant to govern the proliferation, sizing, or appearance of cell towers on existing locations. This site has been called the "crown jewel" of Palo Alto by wireless companies and is now at risk of quickly turning into a cell tower farm. Therefore the reasonably foreseeable cumulative impacts of multiple carriers and monopoles must be well understood now. As indicated at the ARB meeting on September 18th, if another carrier wanted to co -locate at the Little League Ball field and increase the tower height, the City would "have a problem." This seriously disturbs residents, and ARB Chairman Lippert foresees a potential "Federal -City estoppel" in which the City may need to "cede all local control" with a Federal law that gives no local standing. Council needs to be forward thinking and can hope for the best but needs to plan for the worst. This is not something that yet another CUP on this property can solve and reauires definitive legal interpretation before approval. -See Middle Class Tax Relief & Job Creation Act of 2012, Section 6409 page 78 at http://www.gpo.gov/fdsys/pkg/PLAW-112pub196/pdf/PLAW-112pub196.pdf -See FCC Notice of Proposed Rulemaking 13-222, release date September 26, 2013 paragraphs 90-134 at https://apps.fcc.gov/edocs public/attachmatch/FCC-13-122A1.pdf • Alternate Location Options Exist: Verizon has not made a reasonable attempt to exhaust other options for cell tower sites nearby. Other 60 -foot tall buildings and industrial parks and manufacturing/warehousing locations exist within half a mile where Verizon could collocate without the degradation of a residential neighborhood (Loral on Fabian or old Cubberley site at 2500 ft away, Middlefield/Charleston Shopping Plaza at 1500 ft away, Mitchell Library roof or East Meadow Utilities Substation 60 feet away) • Pre-empts the City's Own Wireless Plan: The City is in the midst of completing our Comprehensive Wireless Plan with Anthem Telecom in work that was commenced a year ago to decide the appropriate siting for towers and any potential colocation. These are important, permanent city infrastructure decisions whereby they city establishes guidelines and makes decisions based on those standards. Moreover, the City Council is currently evaluating locating cell towers at local power utility stations (60 ft away). It only makes sense to wait until this city-wide planning has been completed before making an ad hoc decision on a new, record - breaking cell tower in a residential area. Thank you for your consideration. Jason Yotopoulos and over 100 very concerned neighbors of the Little League Ball field Attachment D CITY OF PALO ALTO AT of PALO AL] il. CA Office of the City Clerk (fl'( CLERK'S Oly '�tet APPEAL FROM THE DECISION OF DIRECTOR OF PLANNING AND COMMUNITY ENVIRONMENT* 14 NOV 10 ?M 3+ 19 For appeals of final decisions on Architectural Review Board and Home Improvement Exception applications (rendered after public hearing), this appeal form shall be completed and submitted by appellant within fourteen days from date of the Director's decision. Appeals of final decisions on Individual Review applications (rendered after public hearing) must be submitted within ten days of the Director's decision. Complete form, the current fee and a letter stating reasons for the appeal shall be submitted to front desk staff of the Planning Division, 5th floor, City Hall, 250 Hamilton Avenue, except for 980 Fridays when City Hall is closed, when these items shall be submitted to Planning staff at the Development Center, 265 Hamilton Avenue (glass storefront across from City Hall on the corner of Bryant and Hamilton). ' Director of Planning includes his designees, which are Planning Managers or the Chief Planning Official Appeal Application No. , Name of Appellant C %10- r Li" a a Address '7 757 /I-it'd' Street Receipt No. Phone (y 14.ts‘34,L City •.ZIP LOCATION OF PROPERTY SUBJECT TO APPEAL: Street Address 3(o 3-Z AC e ale .� e 1 �. (2_ }mow to A- l)0) (A 4i L(303 Name of Property Owner (if other than appellant) 1-i le- 1_(f .- & St ho\- 1l 1--)( to A- ITe Property Owner's Address{ C. &T) k%54SS) ?C' 50 X Q S1 -Palo'' \ ) (A 'IL/ 3O -Z Street City ZIP The decision of the Director of Planning and Community Environment dated D (_4 2 3 , 20 whereby the application )LjFLN 0°74i 'Jef 7—t'\ tV;ft lc .3 (original project applicant) was Date: (file number) a PPaVtill- (approved/denied) f , is hereby appealed for the reasons stated in the attached letter (in duplicate) Signature of Appellant PLANNING COMMISSION RECOMMENDATION TO THE CITY COUNCIL (TO BE FILLED OUT BY STAFF): Date Approved Remarks and/or Conditions: Denied CITY COUNCIL DECISION (TO BE FILLED OUT BY STAFF): Date Remarks and/or Conditions: Approved Denied SUBMITTAL REQUIREMENTS SATISFIED: 1. Letter stating reasons for appeal Received by: 2. Fee (currently $406.00) Received by: City of Palo Alto Revenue Collections Received From. In Payment Of Date: By. ITEM ( ) Certified Mail Fee 40050009 18990 $ ( ) False Alarm Late Fee 70020002 13110 $ ( ) Miscellaneous Revenue 10200000 18990 $ ( ) Transient Occupancy Tax 10200000 11850 $ ( ) Sales Tax 10200000 60050 $ ( ) Utility User Tax 10300000 11870 $ ( ) ZoneMapSales 60020201 17030 $ ( ) Univ Ave Parking 23600000 14510 $ ( ) Calif Ave Parking 23700000. 14520 $ ( ) Lot S Parking 2360.0000 14500 $ (' .) Other $ Total $ Copies to: 22-37 REV 10/03 Cash ( ) Check ( ) 1---1 1---1 D' CDT rN -mss I n * O 3 f CD CD C) O MOD O CD --Is Cu H W CD M O y 0 0 --s n * * J T -I O C h r'h 0 O -" CCD C * CD ^ 3 h CS CD CD O-- CD * Z �+ *x C7 � co w � b I N v r- Q_ .x. c< �* w -o , r -a .. C-3 CD 03 -- + ,, w we CD n j O, I C J O C) * n O- CO D' �• co r+• 73 W Z 23 O 0 r - ��' p0ao a CO .A CD O 0 -' �C)Ci3C) moo O o C i 0 NJ Tm1 C) r0Z j 3O o J IW C Z o {* Off] H O D -J I-- w o: CO z *- 73 b b * o0o m Cl) * * H i(-* CD 0 o 4> 0 " CD `C CO M h O W O O CD -h < I 73 f CD -h c) J J0 -J j J. N C) O O 11/7/14 City Council, The October le ARB meeting approved the largest cellphone tower ever in a residential area in all of Palo Alto. The proposed tower would be 65 feet high and located in the Palo Alto Little League field on Middlefield Road. This tower has been a lightning rod for our neighborhood and residents, as the NBC Bay Area TV coverage from that Thursday afternoon highlighted. A dozen residents presented their case against the tower at the ARB on behalf of approximately a hundred households that oppose the Ballpark cell tower. Many residents are frustrated with the lack of transparency in the City of Palo Alto planning process. Residents therefore hired a professional planner and wireless expert to independently review the Verizon proposal. This analysis has validated a significant set of concerns and violations regarding the proposed cell tower in the more than 70 pages of substantial documentation produced by the consultant, which is attached for your review. This letter is to appeal the ARB decision for a number of reasons, not limited to the following, with detailed substantiation which can be found in the report: • The ARB Approved a Building Not Ready for Decision: The building approved is incompatible with the Verizon-represented equipment per manufacturer's specifications (which require the Relion high pressure storage units containing 9,180 standard cubic feet of class 4 flammability hazardous hydrogen hazardous gas to be outdoor -only units). Moreover, the building does not meet the City of Palo Alto's requirement for separation of incompatible materials or clearance requirements per manufacturer's specifications. Therefore, the building design as approved by the ARB represents a significant hazard on a site which is ground zero for our neighborhood children, where thousands of children play baseball every year immediately adjacent to Mitchell Park, Covenant Children's Center, the new Mitchell Park Library, and the power substation. • Significant Safety Risk and Attractive Nuisance for Neighborhood Children: More than 1000 kids are in the league and tens of thousands play at this sith, tens of thousands more within 600- 1000 feet on a daily basis at Fairmeadow, JLS, Challenger, Hoover, AbilitiesUnited, and AchieveKids schools. The proposed 9+foot tall, 440 square foot unfenced equipment building would be an attractive nuisance for kids to climb and play on, as they do on the existing structures today. Moreover, there is two foot spacing between this building and the next, another temptation for playing children. Verizon would have 7x24 365 days a year of industrial truck/crane maintenance access to adjust electrical wires, run the emergency temporary generator, and transport, refuel, and store hazardous chemical materials (none adequately documented by Verizon yet for a complete risk assessment by the fire department)...all within feet of the heavily used pitcher warmup area, batting cages. When•there is an accident of any kind, who will bear the liability: the City, Verizon, or Little League? • The tower itself hovers over the children at just 2 feet from the playing field, 10 feet from the pitchers warmup area, 15 feet from parked cars, and 60 feet from the batting cages and has a fall zone (in the case of earthquake or otherwise) of approximately 2/3 of the area of the playing field • The top of the tower (where the electrical equipment sits) is 2 feet from the Eucalyptus grove and could present a fire hazard, despite the trimming which the ARB proposed • One chemical spill or leak into groundwater from the portable emergency diesel generator or one child death or injury inside the building and this property will be shut down forever, as no party involved with the tower can bear this liability • Painfully Obvious Visual Nuisance: Council needs to be very clear as to what is being proposed for this property privately owned by a corporation with rotating Boardmembers who don't live nearby, yet impose a 65 foot tall structure on the neighbors' residential community which sits at 1%2 feet wide with a 3 foot x 5 foot bulb on top hovering over the trees. • Would constitute the defining feature visible from our new Mitchell Park Library's panoramic bay windows, outdoor patios, Community Center, and parking lot • The new Library was not open at the time of the ARB approval...but it is now and is worth a closer inspection by Council • Dangerous Precedent for Celltower in R-1 Zoned Area: the proposal is for the largest celltower ever to be constructed in a residentially zoned area in all of Palo Alto and as a result must have an extremely high aesthetic bar • This is a new structure with a new commercial function on a residential property in a residential neighborhood • Any other towers in Palo Alto anywhere near this height are in industrial parks or manufacturing/warehousing locations • Fundamentally incompatible with immediate environment • Huge increase in massing/visual volume as a 18" wide industrial monopole • Color of pole incompatible/severe contrast with green Eucalyptus backdrop • "Hammer" top shape stands out like a sore thumb • Incompatible height and size, higher than anything on the property • Incompatible scale, 5 feet above the treeline against the backdrop of a blue sky, also making it visible from a wide surrounding area beyond the property itself • Plainly visible from the sidewalk and second floor windows of residences across the street, which will clearly affect home values • Views from public rights of way of Middlefield Road and East Meadow Drive • City's Risk Management Issue: Loss of City Oversight and Control: A new Federal law was signed by President Obama in 2012 and ratified by the FCC the day after the ARB decision on Friday October 17th, 2014 (Middle Class Tax Relief & Job Creation Act of 2012) and stipulates that once a cell tower is constructed, "a State or local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station" with the term substantial defined as tower size increases to 20 feet in height and 20 feet in diameter, per upgrade, with no maximum height specified. This means that per the new law the City may not deny any request to add additional carriers who wish to collocate at this address (either on the same tower or on a new tower) and may not deny any application for the existing carrier (in this case Verizon Wireless) to upgrade or improve their existing equipment. Federal law has jurisdiction wherever it is defined, state law follows where Federal law is left undefined, and local ordinance follows where no Federal or state jurisdiction exists. As indicated in the dialogue at the ARB meeting on September 18th, if another carrier wanted to co -locate at the Little League Ball field and increase the tower height, the City would "have a problem." This seriously disturbs residents, and ARB Chairman Lippert foresees a potential "Federal -City estoppel" in which the City may need to "cede all local control" with a Federal law that glyeliv local standing. Council needs to be forward thinking and can hope for the best but needs to plan for the worst. This is not something that yet another CUP on this property can solve and requires definitive legal interpretation before approval. -See Middle Class Tax Relief & Job Creation Act of 2012, Section 6409 page 78 at http://www.gpo.gov/fdsys/pkg/PLAW-112pubI96/pdf/PLAW-112pub196.pdf -See FCC Notice of Proposed Rulemaking 13-222, release date,September 26, 2013 paragraphs 90-134 at https://apps.fcc.gov/edocs public/attachmatch/FCC-13-122A1.pdf • Given the new FCC law, the ARB Design Review must take into account the reasonably forseeable cumulative impacts of additional carriers: What was approved by the ARB is in the photo above, however the following day the FCC made as law the ability to unilaterally extend a celltower with no City oversight but for a building permit....in this case, increasing the height of a tower by 10% (65 feet to 71 feet) in the face of a proposal for colocation on this tower. This site, which has been called the "crown jewel" of Palo Alto by wireless companies, is therefore now at risk of quickly turning into a cell tower farm should the project be approved. For the first time ever, this Federal law trumps our City ordinance of a 65' height limit, any local "requirement" for a new CUP, or any other locally imposed requirement meant to govern the proliferation, sizing, or appearance of cell towers on existing locations. Therefore the aesthetics of these reasonably foreseeable cumulative impacts of multiple carriers, radios, and monopoles must be contemplated upfront and be approved in this ARB design review, rather than just the one (Verizon's) shown in today's plans. This proposed celltower would compromise the current residences (and their values) in this neighborhood, is incompatible with the immediate environment, has siting which does not evoke an internal sense of order for neighbors or the many visitors each year, lacks a harmonious transition in scale and character given its incompatibility of shapes, materials, colors, and heights, and also would have significant environmental effects and hazards near children which are very difficult to contain. Thank you for your careful consideration. Sincerely, Charlene Liao ATTACHMENT E ARCHITECTURAL REVIEW BOARD Draft Verbatim Minutes October 16, 2014 EXCERPT 1 2 3 4 5 Continued Business 6 7 Public Hearing 8 9 3672 Middlefield Rd [14PLN-00071]: Request by Verizon Wireless for Architectural Review and a 10 Conditional Use Permit (CUP) application for the addition of 3 panel antennas on a light pole at the Palo 11 Alto Little League Field. The existing light pole would be replaced with a new 65' pole to accommodate 12 the antennas on top of it; the lights would be re -installed at 60 feet above grade (the same height as the 13 existing installation). The application also includes associated ground mounted equipment concealed 14 within an enclosure. Zone District. R-1(8000). Environmental Assessment: Categorically exempt from 15 the provisions of the California Environmental Quality Act (CEQA) per CEQA Guidelines Sections 16 15061(b)(3), 15301, 15302, and 15303. 17 18 Chair Lippert: Ok, we don't have any minutes so we will go directly into the public hearing, continued 19 business, 3672 Middlefield Road: Request by Verizon Wireless for Architectural Review and a Conditional 20 Use Permit (CUP) application for the addition of three panel antennas on a light pole at the Palo Alto 21 Little League (PALL) Field. The existing light pole would be replaced with a new 65 foot pole to 22 accommodate the antennas on top of it; the lights would be re -installed at 60 feet above grade (the 23 same height as the existing installation). The application also includes associated ground mounted 24 equipment concealed within an enclosure. Zone District. R-1(8000). Environmental Assessment: 25 Categorically exempt from the provisions of the California Environmental Quality Act (CEQA) per CEQA 26 Guidelines Sections 15061(b)(3), 15301, 15302, and 15303. And I'd just like to say that Vice -Chair Popp 27 is conflicted on this item so he has recused himself, that's the reason why he's not here and he will join 28 us after this item has been heard. So if staff would like to introduce the item? 29 30 Russ Reich, Senior Planner: Yes, good morning Chair Lippert and Board Members. Thank you. As you 31 noted this is new application for a new wireless facility at the PALL ballpark. It is the installation of three 32 panel antennas on top of a replacement light tower; existing light tower is 60 feet. The new replacement 33 tower will be 65 feet. The existing lighting will be reinstalled at its current height in its current 34 configuration. 35 36 So this is the second time this item is before you. You continued this item from the September le 37 hearing. There were a few items that you had requested the applicant to return to the Board with. 38 Those are material board, greater detail on the ground mounted equipment enclosure, options for the 39 replacement poles finish, clarification on the pole diameter, the Architectural Review Board (ARB) 40 expressed preference for the 18 inch diameter over the 24 inch diameter, consistency in the plan sheets, 41 and additional information on the lighting with an attempt to improve the existing condition of lighting 42 shining into neighbor's homes across the way. 43 44 So the application, applicant has come back with all of these items. They have a material board for you. 45 They have redesigned the ground mounted equipment enclosure structure to be more consistent with the 46 architecture of the other buildings on site. It will now have an asphalt shingle roof to match the asphalt 47 shingle roof of the clubhouse/snack shack structure. They will also be replacing the two different shingle 48 roofs on the existing wooden storage structures that the equipment closure would be next to so that they 49 all match and it would have a wood siding or I think the material board actually shows like a Trex or aty of Palo Alto Page 1 1 Hardie board material, a siding material so that it appears like a wood finish. They have shown that the 2 pole would be 18 inch and made the plans consistent and they also are prepared to discuss more about 3 the lighting in attempts to improve that situation for the neighbors across the way. So with that I will 4 turn it over to the applicant for their presentation. Thank you. 5 6 Oh, sorry; missed a whole section. Yesterday we had a Historic Resources Board (HRB) hearing and one 7 of the reasons for continuance is the ARB wanted to get the HRB's feedback on this outstanding issue of 8 whether or not the ballpark is historic and there was an application to have the property nominated as a 9 local designated historic resource. Yesterday the HRB voted on a 5-1 vote to go with staff's 10 recommendation of not nominating the property as a historic resource. So there vote was to deny that 11 request, which is consistent with the property owner's desire to not have the property nominated. There 12 was much discussion, but for many of the members it was very clear comparing the photos from the 13 1952 ball field to the current field that you wouldn't recognize one from the other. They're quite, quite 14 different. The property has changed pretty significantly over time. And the item still has to go to City 15 Council for their final determination and I don't know if we have a date? November 10th is the date for 16 that, but with that I will turn it over to the applicant. Thank you. 17 18 Chair Lippert: Thank you very much. Ok so the procedure that we will follow today is very similar to the 19 last time. We will have the applicant make their presentation. They'll have 10 minutes to do so. We'll 20 then return to the Board for a round of questions and then we will open the public hearing. In order to 21 speak, speaker card and give it to one of the staff members and then we will close the public hearing and 22 we'll return to the Board for our discussion and hopefully a Motion. So with that the applicant you have, 23 please introduce yourself and you'll have 10 minutes. 24 25 Paul Albritton, Mackenzie & Albritton: Good morning Chair Lippert, Paul Albritton, outside counsel for 26 Verizon Wireless. Thank you for having us back today. I have a distinguished crew with me. I've got 27 local architectural professional Kyu Kim, I've got Charnel James our applicant, and Chris Durand our 28 construction expert, and Sonnier Francisco is here our historic expert in case that becomes, there are any 29 questions on that. 30 31 I've redistributed my letter to you. It's in the packet, but the exhibits were stripped off and I just want to 32 have that in front of you. Kyu is going to go through for you what he's done and we were very pleased 33 to hire a local architectural professional to help us with some of the ideas that you gave us last time in 34 order to improve the feel, look and feel of the proposed wireless facility. Among in my packet that I've 35 given you is a short description of what Kyu has done, about the changes that he's done. We took your 36 suggestions and revised the siding and Kyu will describe those to you. We have wooden horizontal siding 37 painted to match the PALL green, changed the roof, changed the grading, put a barn door on the north, 38 all those things that you talked about which we fully agreed with and moved forward. I've included for 39 your reference there's a photo simulation showing some of those changes and I've included for your 40 reference a photograph of the existing clubhouse so you can see how the two compare in terms of 41 contextual architectural context. 42 43 You asked us to look into landscaping. It turns out those eucalyptus trees are not on the PALL property, 44 they are on the adjacent Mitchell Park property. Verizon Wireless went out with the Oty Arborist. The 45 City Arborist thought that the Eucalyptus would have a healthy life and that life would be extended if 46 those trees were day lighted or trimmed. Verizon Wireless has stepped up and agreed to pay for that 47 trimming. It's necessary to extend the life of the Eucalyptus. In the alternative Verizon Wireless has 48 showing on the plans three pine trees that would be planted in the future should those eucalyptus trees 49 fail, not at the present time because they wouldn't survive with the eucalyptus trees. 50 51 We also have shown the meter. That was a question that had come up. The meter will be located on 52 the north side of the clubhouse adjacent to the PALL meter. You've also asked us about pole color and 53 we have included photo simulations of different pole colors including green, brown, and an acid washed 54 galvanized steel. The current poles are galvanized steel, but they've been out there for a while and you 55 can see that in the materials board that we've provided to you the galvanized steel and the other colors. 56 aty of Palo Alto Page 2 1 Finally you asked us about lighting. We did have Musco, the people who installed the initial PALL lighting 2 look at the lighting, do some light assessments for us. They have recommended going with a 14 inch 3 shield. I'm showing that in the last photo in the letter that I gave to you as opposed to the current seven 4 inch shields on the lights. They would also go out and at the nighttime with those who want to be 5 present adjust the lights not just on this pole, but on another pole in order to focus them on the field and 6 minimize the overflow onto adjacent properties. 7 8 I want to turn this over to Kyu so he has plenty of time to answer your questions. I'd like, I 'll come back 9 up for a moment to answer questions and then we'd like to reserve a few minutes of rebuttal after the 10 public has spoken. And I 'll turn it over to Kyu. 11 12 Kyu Kiim, ACS Architects: Good morning members of the ARB. My name is Kyu Kim and I am a practicing 13 architectural professional here in Palo Alto. And I just want to thank Verizon and the PALL for giving me 14 the opportunity to put in my input as someone who is a native here and someone who has grown up 15 here as well. To begin the presentation and just to reiterate some of the points that Paul has made, the 16 first thing that I'd like to turn our attention to is the storage facility shed that's to be proposed on the site 17 in between some existing sheds. The middle structure there is the proposed shed in between the 18 existing sheds that are currently on the site. Just some photo simulations here showing the proposed 19 conditions, so above is the existing conditions of the existing pole and the existing storage structures and 20 then below the proposed pole along with the proposed storage facility in between the existing structures. 21 22 So just to inform you on the design decisions that I've recommended for the storage facility previously it 23 was simply a concrete masonry unit (CMU) structure with a shed roof over it and I've given the 24 recommendation that they actually try to match at least architecturally from the exterior point of view to 25 really match and fit in with the surrounding structures to a certain extent. I realize that these are storage 26 facilities and not grand residences or any kind of very easily publicly seen buildings; however, I did feel 27 that to keep true to the heritage of the site and to match the existing clubhouse as well that they go 28 about doing the storage facility in a way that it kind of fits in with what's there already. I've also 29 recommended that they go with a traditional roof so that it also fits in and kind of presents itself in a way 30 that feels like it's always been there to begin with. 31 32 These are some of the materials that we're proposing that you also have in front of you on the chair and 33 the materials board. We've tried to go, I've recommended materials that are very high end and nothing 34 that is cheap or nothing that will have to be replaced soon in the future, but materials that will last and 35 ultimately serve the use of the facility. And here's a picture of the existing clubhouse and snack shack 36 facility which we tried to match. This is the siding material. It's a Hardie board material that's been used 37 to look like wood and of course that's to be painted in that PALL green. 38 39 The next thing I'd like to address is landscaping. The existing eucalyptus trees that are there those are a 40 part of the overall Mitchell Park plan that was put out by Mr. Robert Royston and we believe that those 41 trees are very significant and have been planted there for good reason. And of course they are on the 42 Mitchell Park side of the property; however, we felt that after speaking with Dave Dockter the Qty 43 Arborist that those trees would be considered healthy and they should be able to last at least another 44 150 years as long as they are maintained properly. And there has been, it has been recommended that 45 Verizon also try to contribute what they can in maintaining of the trees on the side that exists on the 46 PALL park side so that those trees could continue to grow and continue to serve as a backdrop to those 47 poles. And just another view of that from afar showing the new pole on the bottom; again, not much 48 different. We have stuck with the 18 inch pole diameter, which I've recommended instead of going with 49 any tapering we feel that because of the height of the pole that it will have a natural taper as you would 50 get in perspective. Of course in elevation views it does look to be straight up and down, but again it's all 51 about perception. 52 53 I've also suggested that they go with the acid washed galvanized finish for the pole and I felt that this 54 was the best recommendation because it would do its best to match with the existing poles that are on 55 the site rather than try to introduce a new color or new aspect of presenting something that hasn't been 56 there in the past. And of course the radome antenna is to be painted a similar color to that acid washed aty of Palo Alto Page 3 1 pole. As far as the electric meter I believe there was a question on where that would be located and that 2 is to be right next to the existing electric meter for the PALL located, attached to the existing clubhouse 3 structure. And with that I'd like to conclude my portion of the presentation. I 'll turn it back over to Paul. 4 Thank you. 5 6 Mr. Albritton: We do want to answer any questions you may have. I did want to say that Verizon 7 Wireless is still willing to include the colocation condition of approval that we suggested earlier that 8 colocation require a CUP if that should arise. I know that was an issue for the Board. And Verizon 9 Wireless has also agreed to an agreement to require colocation CUP. 10 11 And then finally there was obviously a discussion of the historic review. We feel that the Historic 12 Landmark Board has made their decision and that there's, of course that will go to Council, but that issue 13 has been resolved by the various professional reports that have been provided. We would like to reserve 14 some time for rebuttal and we'll take any questions you have now. Thank you. 15 16 Chair Lippert: Thank you very much. Ok, we will begin with Board Member questions. Board Member 17 Malone Prichard. 18 19 Board Member Malone Prichard: I just have a couple of questions. First one is for staff. There was a 20 question and I should've checked that all of the Board Members received this packet? Yeah, so I 21 received this about two days ago and I'm hoping the staff has one for the public's use too? 22 23 Mr. Reich: We did receive a copy as well late Tuesday. 24 25 Board Member Malone Richard: Ok, thank you. So this report raised the question of the CUP for the 26 poles that's existing and I just wanted to check with staff whether the CUP for the poles that is existing 27 actually does include the lighting. That's my understanding. 28 29 Mr. Reich: It does. 30 31 Board Member Malone Prichard: Thank you. And another staff or Qty Attorney question of the colocation 32 if we were to add a condition that any colocation on this pole or at this site would be subject to a CUP is 33 that something we are legally allowed to do? 34 35 Cara Silver, Senior Assistant Qty Attorney: Thank you, Cara Silver, Senior Assistant aty Attorney. Yes, 36 you are allowed to do that and I have had conversations with Verizon's attorney and we actually have 37 incorporated it as Condition 22 in your packet; 24, excuse me. 38 39 Board Member Malone Pilchard: Thank you. And then the last question is for the applicant regarding 40 equipment. Again from this report that we received recently there was a question about there's a 41 location shown for future equipment and that raised the question of what would that be serving? 42 43 Mr. Albritton: I 'll ask my construction expert. 44 45 Charnel James, NSA Wireless, Inc.: Sorry, so what that has to do with is (interrupted) 46 47 Chair Lippert: Will you please introduce yourself? 48 49 Ms. James: Sorry, I'm Charnel James. I'm the Senior Planner for the project. What that has to do with is 50 if we change equipment that is necessary to run the antenna. So the type of antennas we have in there 51 are multiport antennas. It allows for multiple frequencies on the antennas. Sometimes that needs a 52 change out of the radio cabinets that support it. What those future growth spaces allow for additional 53 battery cabinets or cabinets to support the change in technology without having to change the antenna 54 types. 55 56 Board Member Malone Richard: Thank you. aty of Palo Alto Page 4 1 2 Chair Lippert: Board Member Gooyer. 3 4 Board Member Gooyer: I just have one quick question. What's the material of the dome? 5 6 Chris Durand, NSA Wireless, Inc.: Good morning, Chris Durand. The materials it's called Fiberglass 7 Reinforced Panel (FRP), it's fiberglass reinforced panel. 8 9 Board Member Gooyer: Ok, I know what an FRP is. Ok, thank you. 10 11 Mr. Durand: Thank you. 12 13 Chair Lippert: Board Member Lew. 14 15 Board Member Lew: I have no questions. 16 17 Chair Lippert: Ok and I have one question which is we've taken care of the colocation of antennas. What 18 about colocation of equipment on the site? Would that be handled in the same trailer or would there 19 have to be additional trailer space? 20 21 Ms. James: Our footprint is designed for the smallest space that we could use. There really isn't 22 additional space in there for another carrier. Depending on the development of technology I can't say 23 that they, we wouldn't have space for another carrier in there at some point in the future, but our site is 24 designed to use the smallest footprint possible and put as much equipment in there as we can so that we 25 don't have as much equipment on the pole itself. So as far as having other carriers within our footprint 26 there is very unlikely unless the technology significantly changes. They would have to get a lease with 27 the landlord and take up additional space somewhere else on the property. 28 29 Mr. Albritton: And this would be the purpose of the condition which would require them to get a CUP. So 30 they'd be coming back to you with whatever their design was, which at this point is theoretical. I think 31 we know that T -Mobile and AT&T have already got facilities and Sprint in the neighborhood so it's not 32 clear who would be the colocator, but in any case whatever plan it was building, antennas, whatever 33 would go through a CUP process and be looking at are there less intrusive alternatives and all those 34 issues we have to deal with on a CUP. 35 36 Chair Lippert: I just want to ask staff is this going to be problematic. Here we are we're trying to create 37 opportunity for colocation and by not accommodating that up front is that going to in fact create 38 problems down the road? Maybe what we should be looking at is having the applicant make a larger 39 trailer or a larger enclosure simply to accommodate expansion so that we can plan for it at this point. 40 41 Mr. Reich: I can let the applicant add to this if they like, but it's my understanding that the equipment is 42 typically better to be close to the antennas. And it says why their enclosure is so close to the antenna 43 pole. So if there was some other provider that was to locate on the property it's not likely that they 44 would be locating on the same pole. It's certainly not staff's intention to see another provider locate on 45 the same pole because it's already at the height limit of 65 feet and we don't want to see anything go 46 any higher. So it would most likely be on another light pole if there was another carrier to locate in 47 which case their equipment enclosure would be somewhere else on the property. It probably wouldn't be 48 appropriate to have a larger enclosure that it would not likely be well suited to serve some future carrier. 49 50 Mr. Albritton: Staff is correct. The equipment needs to be about 150 feet from the pole. This is to avoid 51 line loss between the on the coaxial cable that goes between the equipment and the pole. As we said 52 before if there were to be a colocator the logical colocation here would be to add a six foot or a five foot 53 antenna onto one of the other light standards. I have to reiterate that T -Mobile is down the block on the 54 tree, Sprint is up the block on a flag pole, and AT&T is just put an 80 node Distributed Antenna System 55 (DAS) network into Palo Alto so we if we were aware of a colocator at this time that would certainly be 56 something we would be doing right now because that's economically makes sense for carriers to colocate aty of Palo Alto Page 5 1 whenever they can and to build a shelter that will accommodate colocation. It doesn't as I said it would 2 have to go through the entire environmental review process for whatever a new colocator that wanted to 3 locate on the PALL Field would want to do. 4 5 I, as Kreines & Kreines erroneously notes throughout their document this started out with two poles 6 because AT&T was going to locate on PALL Field. They gave up and moved onto the whole entire DAS 7 network instead. So Verizon's been working four years to come up with this proposal and we plan for a 8 design that's aesthetically preferred and don't have this planned expansion frankly because it's just 9 impossible to predict what the future is going to bring on this in this wireless industry. At the present 10 time we don't see any colocators coming down the pike. I hope that answers you. 11 12 Ms. James: And if I could just add to that I having worked on this project for almost five years now when 13 we initially started we started as a colocation and there we had two back to back enclosures, one for 14 AT&T and one for Verizon that were on the outside of the third base line, outfield third base. So there is 15 definitely space out there if another carrier wanted to come in there is enough buildings on the property 16 that a similar type building would work as the storage structures without taking up additional space. We 17 were trying to get the, to accommodate some of the comments from the community we tried to take the 18 pole as far away from the front line of the property as possible, which is where, why it dictates where our 19 equipment is located at. 20 21 Chair Lippert: Ok, thank you. Ok, we'll open the public hearing at this time. Again the procedure that 22 we're going to follow is that I will I have the speaker cards here. I will announce who the speaker is and 23 who is following up and you'll each have three minutes. I have several cards here which one speaker is 24 speaking for several people. I'm going to allow that. And at the conclusion of the public hearing we'll 25 return to the Board for comments and hopefully a Motion before we vote on the Motion however we will 26 give the applicant time for rebuttal. So with that we will begin with Frank Ingle and he has several 27 speaker cards here: Chung Sing Xong, Kralian Liu, and Rorinda Poggesi. I'm sorry if I'm butchering your 28 name here. I think that's right. It's hard to tell who is speaking for who, but I think these are all Frank 29 Ingle and you have... yeah. Oh, Florinda is the second speaker here. Ok. So the first speaker I guess 30 has three, four cards, I'm sorry here, and Victor Shim, She. Ok. Got that. 31 32 Frank Ingle: Good morning, Frank Ingle speaking. I spoke to you last time. I have a Doctor of 33 Philosophy (PhD) in engineering and I'm a licensed professional engineer in the State of California in the 34 area of electrical engineering and a specialty of mine is risk management and making sure we understand 35 the potential risks and anticipate them and do something about them. Before I begin I have some 36 documents to hand out. First, I understand I can't ask you a question directly, but for the Clerk if any of 37 you did not receive this report from the outside consultant that the group... everyone received this. 38 Those are extra copies. And secondly here's a copy of the ReliOn fuel cell solutions, the guide to fuel cell 39 permitting, which I 'II hand forward to the Chairman, which relates to the way in which you should plan 40 the site in order to make sure you comply with all the problems. 41 42 And so this report that I just handed out was prepared by an outside consultant, Kreines & Kreines, from 43 East Bay. I am not involved with that and I have no, although I'm a consulting engineer I have no 44 financial involvement with this project, speaking just as a citizen. And so the citizen's group not including 45 me hired this outside consultant to prepare a 70 page report analyzing the application so far and that's 46 what this report is that was just handed over to you. His qualifications are over 40 years in 47 telecommunications and city planning with over 150 clients, master and bachelor's degrees in city 48 planning from University of Pennsylvania (Penn) and University of Illinois, an instructor and expert 49 witness in wireless facility aspects. 50 51 And so now I will talk about ok... so my position that I will present to you this morning is that this issue is 52 not ripe for a decision because it lacks certain information you need in order to make the decision 53 properly. The information presented by Verizon is incomplete and so the particulars the ARB decides 54 issues on specifications, not on promises. And the architectural drawings prepared doesn't show 55 everything including backup power, ingress clearance required, trees which must be removed, or 56 protection against intrusion. No plan is presented for showing access for emergency access and refueling aty of Palo Alto Page 6 1 and the safety information in your packet is for fuel cell module only and does not address the entire 2 system including storage, refueling, and emergency response. And I am a systems engineer more by 3 background so I 'll look at this project not as an antenna tower, but as a whole system that includes the 4 tower, the RF power supply and amplifiers, the power modules that supply it in case of emergency 5 backup, and lastly the refueling of those and how the access trucks for refueling and for emergency 6 response can get access to the facility. 7 8 So you'll see this sign a lot and in particular you'll see it on the sign, on the side of the facility when you 9 end up. The number at the top is flammability index. Four is the highest index. Gasoline is three by the 10 way, so this is more flammable than gasoline and California Code of Regulations has defined, has four 11 different sections on hydrogen and hazardous material form required if more than 200 cubic feet and 12 Charnel James their representative respond yes to the Fire Department hazardous material checklist, "the 13 quantity is greater than one of these three categories," but he replied no to "does the operation of the 14 facility involve use or storage of hazardous materials" and that is maybe inadvertently, but it is not 15 correct. 16 17 So the equipment the ARB is deciding on does not comply with the ReliOn manufacturers specifications, 18 which I, we just I handed you a copy of this morning. In particular, the hydrogen, hydrogen will always 19 leak. And I mean it's understood that it leaks and they try to hold it within some amount, but it still will 20 leak even if there's a grain of sand or the smallest particle in the threads there will be leaking by it and 21 hydrogen is very low viscosity and at very high pressure so it leaks readily. This is why the storage tanks 22 must be in a ventilated area. They can't be indoors unless you have special fans to ventilate the area 23 and they, sorry, this proposal also uses a storage cabinet which as specified by Verizon is not designed as 24 a sealed gas cabinet and is intended for outdoor use only. So this is an indoor, for indoor use. 25 26 There are some particulars on this on its construction details. Verizon's proposed fuel storage could be 27 very hazardous as the site of an athletic field. Any spark can ignite an H2 leak and once the however 28 small the leak is once the flame starts it's not easy to extinguish. In fact it's not even easy to see and the 29 way you detect a small hydrogen flame is by taking a broom and turning it upside down and holding the 30 bristles around in the air. You can't see where the flame is, but the bristles will catch on fire. And so 31 there is the potential for that kind of fire. A low level fire like that still burns at a very high temperature, 32 enough to melt any metal. And so secondly the hydrogen tanks must be protected against temperature 33 of the tank more than 125 degrees Fahrenheit. This is because there are automatic burst, there's a burst 34 plate inside the cylinder that protects it from going over pressure, which would cause it to explode and 35 spreading shrapnel. And so this burst typically at 150 to 212 depending on there are about a dozen 36 varieties of these so they're different from each other, but it means that you cannot leave the tanks 37 within sunlight. They will overheat. And if the burst plug goes it will open and all the contents will be 38 spilled through the burst plug and I have a picture here of what shows an example of a hydrogen 39 automobile when the plug bursts all the hydrogen vents vertically and you can see the flame goes pretty 40 far, but the actual flame is partly invisible so it's much higher than that. And so any overhead trees 41 might be set afire and certainly any roof, any flammable materials in the roof may be set on fire. 42 43 This is a slide from hydrogen fuel cell program from energy.gov and it shows a typical example of a site 44 layout and if you look at the details here you'll see the battery and the electronic equipment is on the left 45 container connected to the tower whereas the fuel cell and hydrogen storage is removed from it by some 46 distance. And there is a requirement recommendation of at least 10 feet separation between that and 47 anything else. And yet this is so this is Kreines recommendation for these reasons. Verizon failed to 48 address a potential hazard of the H2 storage tanks and the fuel storage tanks should not be acceptable 49 choice of backup particularly when a crowd of people many of them children are within 100 feet away on 50 the bleachers. And the proposed project does not meet the Qty of Palo Alto Municipal Code requirement 51 separation of incompatible materials; for example, it does not meet the rely on specifications for the 52 storage placement, it doesn't segregate the batteries into a separate cabinet, it doesn't isolate the 53 ignition material, mainly batteries, from the hydrogen fuel storage tanks by a partition. 54 55 This is a slide taken directly from ReliOn's requirement, which shows that if there is dry vegetation or 56 combustible material it should be separated by at least 25 feet from the storage of the tanks. So the aty of Palo Alto Page 7 1 questions are: 25 feet what trees will have to be cut down? Protective fence: how large and how tall? 2 What changes to Mitchell Park parking ball storage sheds and Christmas tree sales will be required? Will 3 the H2 tanks and plumbing be protected from a right field homerun or a falling tree limb? These are risk 4 management issues that one would normally think about. 5 6 And now the top of the tower; so I as an electrical engineer I wouldn't of imagined that this would 7 happen, but here are two separate pictures of the top of a cell phone tower catching fire. And each time 8 the fire department is putting it out with a long extension with a hose. Now these as you can see are 9 quite isolated from vegetarian nearby, vegetation nearby, but if the present design of the Verizon tower 10 is only a few feet away from the eucalyptus leaves it could start a ground fire and as I mentioned last 11 time eucalyptus is very flammable and is sometimes pretty breezy with the wind from the north and 12 there's a line of trees that goes directly down behind the library across to the Abilities Unlimited facility 13 for the handicapped and then across to the Challenger School. And you would not want a ground fire 14 moving in that direction. And if it were to happen it might happen too rapidly to put it out before it can 15 spread. 16 17 Here's an item on transportation and refueling. This is one of the problematic areas. The fuel cell 18 operates on low pressure hydrogen and has electronic valves and sensors that can sense a leak and shut 19 off the valves, but upstream of that are the high pressure tanks and regulator and they are hopefully 5 or 20 10 feet away. If there is a leak on the high pressure side there is no way to stop it. There is no valve at 21 that point, no electronic valve and the result will be if there's a leak that creates with a spark creates any 22 size flame it may overheat the tanks, the tanks may blow their plugs and blow the roof off the shed and 23 start a considerable fire. 24 25 So here's a list of hydrogen safety best practices from this website. A storage system should not be 26 located beneath electric power lines, close to other flammable gases or liquids, or close to public areas. 27 Note that last. It should be readily accessible to authorized personnel and delivery equipment, but 28 protected from physical damage or tampering. Only trained and qualified personnel should be allowed to 29 handle compressed hydrogen gas or liquid, refer to training requirements listed in safety, culture, and 30 incident, and so part of this question is who is going to be making sure that the truck driver who is 31 bringing the hydrogen to replace or replenish the tanks is of satisfactory qualification and will the Fire 32 Department supervise them? Has the Fire Department done draining drills to make sure they know how 33 to handle this kind of emergency? Would they really be willing to do a live training exercise out 34 somewhere away from the habitable area? I don't know. 35 36 And lastly fire protection and suppression; normally hydrogen fires are not extinguished and on purpose 37 until the supply of hydrogen has been shut off due to the danger of reignition and explosion. Personnel 38 who work around hydrogen should be trained in the characteristic of hydrogen fires and proper 39 procedures for dealing with them. So if you look at this picture of an actual tanker fire on a freeway 40 could we put a tanker fire in Mitchell Park or in the ballpark? If you look at how they've stopped all the 41 traffic, backed everybody away and they're shooting the hoses from a long, from a large distance for the 42 purpose of cooling the tanks so that they don't blow their rupture plugs. 43 44 Chair Lippert: You can wrap up your presentation please. 45 46 Mr. Ingle: My final sentence is this application is not ripe for decision and the following list of questions 47 should be answered to the ARB before making this final decision. Thank you. 48 49 Chair Lippert: Thank you for your presentation. Florinda Poggesi followed by Barbara Cooley. And I just 50 want to make one other comment. If you've spoken before the ARB previously on this item we would 51 appreciate it if you wouldn't repeat your previous comments. What's important to us is any additional 52 information that you're sharing with us today. Thank you. 53 54 Florinda Poggesi: Good morning, my name is Florinda Poggesi and lived in Palo Alto for more than 20 55 years. 56 aty of Palo Alto Page 8 1 Chair Lippert: Could you bend the mike down so that we can hear you? Much better. 2 3 Ms. Poggesi: Ok, my name is Florinda Poggesi and I lived in Palo Alto for more than 20 years. I will talk 4 about equipment building represent an attractive nuisance to playing children. There are about 1,000 5 children in the Little League with many times that visiting this site for games every year. A 13 by 34 foot 6 equipment shed is just an invitation to young athletes to climb just as they do today on the containers. 7 The concrete wall has a metal roof below which a security metal grill openings for sideways ventilation; 8 however, fuel tanks for hydrogen need to be either vented mechanically exhaust fan or completely 9 outdoors and these are not. Verizon proposed an emergency temporary generator plank and parking for 10 an emergency generator which will be brought to the property and parked in the parking area 40 to 50 11 feet away. Why is a generator needed if a fuel cell provides backup power? How does Verizon plan for a 12 power generator 50 feet from a plug to transmit power to the plug? 13 14 Equipment will be in a building separate by a two foot gap from the three containers on the property. 15 Since the equipment is not fenced this two foot gap creates a space which within which young people 16 can play, but firefighters with their equipment have difficulty entering. Does this meet municipal code? 17 How close does one building next to unintelligible building need to be to be considered unsafe? Is the 18 liability of this two foot gap covered by Verizon lease or by the Little League? The Kreines report 19 concludes that there is no fence or the way around the proposed building, but if Verizon or the PALL put 20 one there kids may try to climb over it. A Little League field is a bad place to put an attractive nuisance 21 and is inconsistent with the Oty of Palo Alto Comprehensive Ran because it is not compatible with the 22 neighborhood Policy L12. It will be to unintelligible to the PALL property. It will be detrimental to the 23 public health, safety, and general welfare (interrupted) 24 25 Chair Lippert: You wrap that up please? 26 27 Ms. Poggesi: And it cannot be located and constructed in accordance with the Comprehensive Plan. 28 Thank you. 29 30 Chair Lippert: Thank you very much. And I don't know if the microphone picked up everything, so if you 31 could give your comments to the secretary she'll make a copy of that and then that way it will get 32 transcribed properly. Ok? Thank you. Ok, Barbara Cooley followed by oh, I'm sorry, and Barbara Cooley 33 is going to be speaking for Jialing Yang and Heather Ambler so you have nine minutes. 34 35 Barbara Cooley: Thank you. So I was happy to hear that it's already been raised that the eucalyptus 36 trees in fact are not on the ballpark's property they are on the Mitchell Park side. So some of the 37 concerns around what happens to those trees if they are taken down I've heard about that this is new 38 information that they had an arborist look at them, but I still feel that you've got two things going on 39 here. One, we're relying on the trees to provide screening and make it so that it's not so obvious, on the 40 other hand you've got trees that are actually a danger that represent a risk of fire with the cell tower 41 there. So this brings me back to we don't, this is not the place to have a cell tower both for aesthetics if 42 there's no trees and due to the risk if there are trees there. 43 44 I don't want to cover the same material that I did last time. It is here, but the thing I want to comment 45 on is I'm hearing on one hand Verizon is saying and the ballpark is saying well we don't want to have any 46 colocation, we're not planning that, we don't see how that would happen. On the other hand, here's 47 what we would do if we do want to have a colocation, here's how it would work, and yes there is room 48 and it could happen. The other piece of this is the Qty Attorney has said that we would have a problem 49 based on the 2012 law if another carrier came in and wanted to colocate or if Verizon wanted to add 50 more antennas that we would not be able to just say no you can't do it and I would argue that a CUP we 51 could require a CUP, but we can't deny the CUP. So it becomes kind of a rubber stamp process to 52 colocate and add more antennas and more carriers. 53 54 So just again the text of the law is a state or local government may not deny and shall approve any 55 eligible facilities request for modification of an existing wireless tower or base station that does not 56 substantially change the physical dimension of such tower or base station. The government has gone on aty of Palo Alto Page 9 1 to describe what a substantial change is basically 20 feet in height or 20 feet in width greater. I 2 understand that the Qty has an ordinance of 65 feet for a cell tower. My understanding is that federal 3 law would trump a city ordinance, but again I would invite the aty Attorney to comment on that 4 definitively. And again, 'eligible facilities' means any colocation of new equipment, removal of equipment, 5 or replacement of equipment. So again whether it's a cell tower or not it doesn't matter what's being 6 approved today, that doesn't mean that that's what's going to be there tomorrow. And we will not have 7 any ability to comment on the changes in the future. So I showed these last time, views from the library. 8 Could become that or worse. 9 10 The other comment I want to make is the Qty has finally hired Anthem Wireless, sorry, Anthem Telecom 11 to assist the Qty's wireless communications needs and is in the process of actually coming up with a 12 Comprehensive Wireless Ran for the Qty that would hopefully stop this intrusion of cell towers popping 13 up all over the place and instead make intelligent decisions about where these things belong, where they 14 should be sited, and take into account all of the safety considerations and put them in places where 15 colocation makes sense, where the citizens can have the wireless access that they need without having 16 high risk ugly towers in the middle of parks and ball fields and right outside our brand new library. So in 17 my opinion it's a really bad idea to add a new site with new towers and knowing full well that colocation 18 will be targeted here. I don't care what promises Verizon or the ballpark or anybody else makes, it's 19 almost a certainty that that will happen. As they've pointed out they can't predict what's going to happen 20 in the future. 21 22 To further that point it's already in our Qty ordinances and plans that we should be encouraging 23 colocation wherever possible. So again why we would put in a new tower knowing that we're going to 24 try to pile more stuff on that location does not make any sense to me. I would also challenge that at 25 least I as a neighbor who have been involved in this for the last five years I have not seen a definitive 26 report showing why Verizon cannot colocate on one of the existing towers or areas that are more 27 industrial and commercial than right in the middle of a ballpark. 28 29 And that's all in the presentation. I did want to comment that coincidentally tomorrow is the day that the 30 Federal Communications Commission (FCC) will actually make the final decision on this 2012 law that was 31 signed in two years ago. It's been in I believe a bit of a wait and see kind of a mode and tomorrow is 32 when the FCC meets and will confirm that law. So I think we have not yet seen the effects of that, but 33 after tomorrow we will begin to see it. That's all I have. Thank you. 34 35 Chair Lippert: Thank you very much. Peter Sullivan and Mr. Sullivan you'll be speaking for Willie Lai and 36 let's see here... I appear to be missing a speaker card for so you will have... six minutes. 37 38 Peter Sullivan: I only need three minutes. Ok, don't worry about it. Hi, I'm Peter Sullivan. I spoke last 39 time about harm. This time I'm going to talk about the threatened lawsuit. So Verizon's lawyer has 40 submitted a document to the Qty of Palo Alto threatening the shot clock, which we don't believe is 41 actually valid so just sue the Qty. Our consultant cannot find a Notice of Completion. We believe the 42 shot clock cannot be triggered until the Notice of Completion has been formally filed. We can't find that 43 document. We don't believe it's actually been filed. So we don't believe that that's actually a valid 44 threat. And we would not like to see this process rushed. We'd like to see everything proceed slowly, 45 carefully as it should be. We've already mentioned the incorrect ARB date that was announced and we'd 46 just like to show you the letter. And just say don't worry about this, we don't believe this is legally valid 47 unless we can see a Notice of Completion. Again so my ask is that we just follow the process. Thank 48 you. 49 50 Chair Lippert: Thank you. So we have Jason Yotopoulos, I'm sorry? You're right it is Willie Lai. Ok, 51 great. Ok, yeah. Three minutes. 52 53 Willie Lai: Good morning members of the Board. My name is Willie Lai. I am a Palo Alto resident. I 54 don't live across from the ballpark. I have a degree in architecture from University of California (UC) 55 Berkeley. I'm opposed to the placement of this cell tower in the ballpark. I don't think it's an appropriate 56 location for a cell tower. I would like Verizon to consider some other alternatives as Barb had mentioned aty of Palo Alto Page 10 1 either colocating or other, other areas, industrial areas I think would be more suitable for a cell tower 2 than this location. 3 4 But I am here to speak about a few things that I believe need to happen before a decision can be made 5 on this topic. If we can pull up my slides here... so as Peter mentioned with the threatened lawsuit to the 6 Qty I believe that the aty has had some procedural missteps, due process has gone out the window. 7 There's been a constant change of drawings that are different than those accepted by the City of Palo 8 Alto to represent the project. So essentially what we have is we have not everyone is on the same page, 9 right? What was approved early on is different from what the City, what the City had approved, what 10 was announced to the neighbors, the current plans; they are all at different states. So not everyone is 11 on the same page in terms of what actually is being approved. Different projects all dated after the 12 accepted dates and Accella. So it becomes very unclear which facts apply. So this project the plans 13 need to freeze, right, so that people can understand what exactly is the plan for this cell tower and a 14 Notice of Completion needs to happen. And without that a CEQA designation is unenforceable. 15 16 Some of the examples, specific examples the City Departments were routed old documentation per Acella 17 versus the latest for approval. Per Acella application was accepted by City, by Jason Nortz on February 18 27, 2014. The drawings from that application were routed to various City departments with the following 19 description: "Request by Verizon Wireless for Minor Architectural Review Board and CUP application for 20 the colocation of six panel antennas between two existing light fixtures at the PALL Field. Zone District. 21 R-1(8000)." The application was accepted in February, yet the project drawings were revised on March 22 12th. Many times again and finally on August 19th. So as you can (interrupted) 23 24 Chair Lippert: If you could wrap it up (interrupted) 25 26 Mr. Lai: Sure, absolutely. The point here again is that the project needs to freeze. People need to be on 27 the same page. And the two conclusions from the Kreines report were that Verizon's created a moving 28 target and the aty of Palo Alto has done nothing to freeze the project description and the City creates a 29 moving target when referring to two or more different sets of drawings as the same proposed project. 30 This, these plans are not ready for approval. Thank you. 31 32 Chair Lippert: Thank you. Ok, Jason Yotopoulos and Jason you will be speaking for Joan Dizon, Pam 33 Yotopoulos, Mary Yotopoulos. So that's 12 minutes. 34 35 Jason Yotopoulos: Thank you. So let's talk a little bit about the Municipal Code Section 18.76.010 b2 and 36 according to that code any expansion in the building size or site area of an existing conditional use shall 37 necessitate the amendment of the CUP, ok? In this case we're expanding the building size necessitates 38 an expansion of proceeding CUPs. So in order that this project be compatible with zoning according to 39 the Kreines report when the City considers a CUP on a property that has prior Use Permits (UP), in this 40 case at least three, the City should ensure the new CUP does not create an inconsistency with prior 41 CUPS. And this was asked about by the ARB last time. So under zoning, which is one tool of, one tool of 42 which is the CUP you got to ask does the prior CUP make any allowances, assumptions, or conditions that 43 are different than those under consideration for the current or proposed project? Could the prior CUP be 44 amended rather than inventing an entirely new CUP such that the prior and proposed regulations are 45 consistent with each other and lastly does the prior CUP stand as a valid document? I think the answer 46 to almost all of these questions is yes. 47 48 So there was a question asked what is indeed the history of permitting at 3672 Middlefield Road? So this 49 consultant, Kreines, went through in detail into the historical documentation for this residential R-1 zoned 50 parcel and found the following: in 1952 there was a permit to construct the ballpark the condition upon 51 that was that it be reviewed annually and it was actually reviewed once and renewed once. No field 52 lights are allowed stipulated that CUP and there was a 20, 20 foot sign limit. The next UP because they 53 weren't called CUPS at the time is 1956 for the clubhouse. The following was in 1965 for a storage 54 building, now it's used as an equipment shed. In 1965 through 2008 there are, there were numerous so 55 to the ARB's request last time there were numerous unpermitted and therefore noncompliant additions. 56 Those include batting cages inside the eight foot residential setback, three storage buildings, a chain link aty of Palo Alto Page 11 1 fence over 6, 7, and 12 feet respectively, and three flag poles just to name a few. And then the in 2008 2 light poles were installed. The conditions upon those were no taller than 60 feet, only to be on during 3 games for no more than two times a week, games no later than 9:00 p.m., and they need to comply with 4 the noise ordinance. And now we're evaluating a cell tower CUP on top of that and potentially a 5 colocation CUP in the future on top of that. 6 7 And if we take a look at the track record then as to compliance with these CUPs, so violation was not 8 renewed annually the first CUP, lights indeed were allowed in 2008, there was a violation sign limit which 9 was addressed in the Eighties, and of course all of the non -permitted things are in violation as well of City 10 codes. Indeed the current at least one of the four towers is at least four feet above 60 feet. They 11 weren't talking about the level those lights were on if you read the detail they're talking about the height 12 of the pole. Only for games, you'll see and you've heard the neighbors complain that the lights are on in 13 the ballpark in the evening when nobody is there. No more than two times a week, you can find in the 14 record that there's not been compliance with that and I could ask for a raise of hands from the neighbors 15 across the street as to what that looks like. Games no later than 9:00 p.m., this Monday the lights were 16 going off again at 9:15, 9:20. Complying with the noise ordinance, all the way back in the original letter 17 you can find that people are having problems with the loudspeakers. And so the bottom line is a new 18 CUP cannot be issued until the most recent CUP and noncompliant additions are brought into compliant 19 or PALL simply remains noncompliant with no new CUP such as the one proposed. 20 21 So again here are the lights, this was taken earlier this week. All of the things that were the ugly things 22 on the property that were described by the ARB last time those were none of those were permitted, ok? 23 So just to be clear so bottom line is ad hoc incrementalism with permitting does not work for our City. 24 Where we say it does not matter what we said then, but it just matters what we say now is not, is not 25 procedurally appropriate. So the City is considering a new CUP on a property that already operates under 26 CUP and it can't just approve another CUP over three existing. It must take into account the existing 27 policy for the site in question. There should be no conflict in allowances, assumptions, and existing 28 conditions by the previous CUP, which certainly is the case as I've shown. 29 30 So the CUP on the table is PALL would be authorizing Verizon to do three things: 1) expand existing light 31 poles over the height designated in the 2008 lighting CUP, right? Which was previously 60 to 65 feet. 32 That constitutes a violation, right? And even if there were no new it's over 60 feet regardless. So it 33 would need to be addressed independently. The second point is they are clearly expanding the number 34 and size, square feet of the buildings on the property. If you take a look at the 2008 CUP there were two 35 buildings identified and the new drawings identify five buildings, right? So this is clearly an expansion. 36 And the original CUP should be included to, should be amended to include all preexisting five. 37 38 And it turns out that the northernmost driveway off the project site needs to be approved as part of the 39 CUP as a legal entrance to the PALL field. It turns out that that is on the PALL property, on the City of 40 Palo Alto property and is not on the project site and has never been. There is no encroachment permit, 41 no street work or ingress/egress permit for this so the PALL 2008 CUP should be amended to show the 42 correct ownership of the property in order to gain the right to ingress/egress especially when you're 43 talking about construction and hazardous materials. And again even without the new CUP one needs to 44 address the old. The lighting poles we talked about, the containers are classified as buildings. Zoning 45 code says a building is any structure used or intended for supporting/sheltering any use. Erecting of the 46 batting cages within eight feet in a R-1 district to the interior side unit requires a permit. All structures 47 and these encroachments are not permitted. Alright a structure is anything that's constructed or erected 48 which requires the location on the ground or attached to something located on the ground. These and 49 other structures certainly qualify. Backstop and fence and thank you for addressing the shining of the 50 lights in the homes as we discussed last time, so as of 2014 this PALL Field does not comply with its own 51 CUP and this is a significant issue. 52 53 So in conclusion and these are the independent consultant's words, not mine, a qualified professional, 54 this project can't be approved without amending the PALL CUP. This would require dealing with PALL's 55 noncompliance of its own CUP, right? A CUP even though it's already been adopted and beyond perhaps 56 the statute of limitation for challenges it cannot be amended unless the original CUP is brought into aty of Palo Alto Page 12 1 compliance with all regulations. The Qty should attempt to amend the PALL CUP to correct all existing 2 noncompliance issues or it could deny the new PALL CUP and simply allow the Little League compliant... 3 the Little League existing CUP intact but not compliant. Thank you for your time. 4 5 Chair Lippert: Thank you. Amy Lutz followed by Charlene Liao. 6 7 Amy Lutz: Good morning, my name is Amy. I'm here to talk about five areas that we have not yet 8 addressed and those are the standard application details regarding the significant construction required 9 for this project. So in this application there's no detail included about the construction project itself, 10 which is very unusual for this kind of application. There is the issue of the cable route of 50 feet with 11 dozens of cables that need to be underground and will require concrete lined trenches and there'll be 12 scores of yards of off haul that will need to be taken off the property. The second one is that Policy N51 13 of the Natural Environment Element of the Comprehensive Ran states that they have to minimize 14 exposure to geologic hazards including slope stability, subsidence, and expansive soils and to seismic 15 hazards including ground shaking, fault rupture, liquefaction, and land sliding. There's no information 16 about structure integrity in this application and the depth of the foundation needs to be a least a quarter 17 to a third of the tower height or at least in this case 6 feet in diameter and 22 feet deep. When this 18 excavation is proposed an additional approval will be required. The proposed project does not meet this 19 policy because proposed monopoles set in several feet of excavated earth needs seismic stabilization, 20 excuse me, stabilization and none has been proposed. 21 22 We do have some questions about how this 34 feet of eighteen cables and they are each 7 and 718th inch 23 diameter hang in the structure at four pounds per foot. There's no information about how that structure 24 will support all of that cable weight. And then the structure site seems to have 6,192 square feet of 25 Parcel 2 property, which was Qty of Palo Alto land used for the PALL Field and it uses a driveway owned 26 and controlled by the Qty of Palo Alto. There is no easement for this driveway, so which driveway will all 27 of this construction be using? Thank you. 28 29 Chair Lippert: Thank you. Ok, Charlene Liao will be speaking for Grace Jao, Rachel Cooley, and Minsheng 30 Tang. Thank you and you'll have 12 minutes. 31 32 Charlene Liao: Thank you ARB. I'm a Palo Alto resident and I live across the Little League ballpark for 33 the last 17 years. I want to talk about the inconsistent and misleading information submitted by 34 Verizon's application. So you already heard they talk about equipment enclosure instead of a building, 35 but what they are proposing is a building that has a roof, concrete blocks, walls nine feet tall, and locked 36 doors. In this it is subject to more limitations than enclosure according to Palo Alto's zoning code. The 37 building shall mean any structure used or intended for supporting or sheltering any use or occupancy. 38 39 You also heard that they have on their drawing two buildings and then on another drawing five buildings. 40 And you can see it's in their map, I checked, and the different versions of map submitted. Page C1 is a 41 square shaped storage building and Page C2 by a license [unintelligible] showed half of the building and 42 then they refer them as the three containers in Page A3. They really should be clearly identified and 43 consistently identified. 44 45 Third is Verizon's outdoor equipment layout is actually indoor and its legend has nothing to do with the 46 outdoor equipment layout. This is showing A4 and there legend for example Item 29 on their legend 47 does not exist. At the same layout specified the Qty PD that is also has not been used by wireless 48 carriers since 2004. And we also heard comments about what the area they are leasing. They talked 49 about 13 feet by 34 feet in C2 and then in A5 they talk about 510 foot square feet, which is 15 feet by 34 50 feet and then there's this 2 feet gap, right? Who is owning to the two feet gap between this 51 miscommunicated this leased area? 52 53 They also talk about light pole versus mono pole and in their this new CUP proposal light would be 54 secondary use and the real issue becomes the height of the pole, which is the focus of prior CUP that 55 stipulate each light post, it talk about the height of the post, cannot be can only be 60 feet tall and here 56 it's proposal that's separate from the light pole. They also have different versions of one mono pole aty of Palo Alto Page 13 1 versus two mono poles. They now keep referring to one mono pole, but they still have the drawing and 2 even the one post over there shows distinct light pole as a thick mono pole. 3 4 Then we don't know if they are applying for six antennas or three. The application Jason mentioned in 5 February clearly said six antennas, but now here we hear conflicting project description. To continue that 6 they refer to their application as Wireless Communication Facility (WCF) or WCF, which can actually mean 7 anything that transmit or receives wireless signals such as building contractors dispatch or police/fire 8 radio. But what they are actually applying for is a Personal Wireless Service (PWS) as defined by the 9 Federal Communication Act. And even if shared with lighting the amounts proposed is a PWS mono pole 10 and we also are not very clear how the antennas are affixed to the pole and how the radome shield is 11 affixed to the pole. These are critical to specify as part of the CUP process especially in seismically active 12 regions. 13 14 And again I mentioned equipment shelter is a building here and their cables are not shown on any 15 application materials, nor is the route. Is it overhead, at grade, or under grade? And the leased area 16 spelled out mutual responsibilities between lessor and the lessee. It's unclear who controls the 17 emergency generator pad and the generator power transmission to the leased area to the mono pole and 18 the cable route and again really to conclude it is impossible for Qty of Palo Alto decision makers such as 19 you and the citizens of Palo Alto such as us to understand a project with such profound conflicting 20 descriptions. The Qty should have Verizon revise their application and application drawings to be 21 consistent and to describe the same project. Changing the drawings after the Oty of Palo Ato accepts 22 the application and has routed it is misleading to the public. 23 24 And their proposed wireless raise inadequate to deliver the service proposed. This represents a size 25 misrepresentation. They mentioned the antenna as three feet by five feet and it is impossible for our 26 consultant to understand and for us too how it would accommodate PCS, AWS, and 700 megahertz which 27 with a total power of 3,000 watt. This could require more like nine antennas plus several remote radio 28 units and the six tower mounted amplifiers. So how large this will really be? We recommend ARB 29 require the applicant to show the antenna radome shield design and how the equipment fits. And they 30 also perhaps cannot deliver its 3Gs not to mention 4Gs services from three antennas along with the 31 accompanying RRU and the TMA's all crammed within a three by five feet radome shield. A signal from 32 this limited facility would not serve the coverage shown in their Verizon's coverage with the Meadow 33 Middlefield description, which is the terminology they use to describe this project, right? So bottom line 34 Verizon claims it will fit three antennas and associated TMA and RRU's within a three by five feet radome 35 shield, but our independent consultant does not believe that this is possible. 36 37 So to continue that the Drawing A4 indicate to the three components that show the [unintelligible] line to 38 come at future. I believe early on the ARB also asked that. They ask us to approve three of the seven 39 area components at this time and they did not show what the future would be because they really cannot 40 promise what how other colocalization could happen, but they are really again miscommunicating what is 41 going to be used by them. The scale of the drawing three feet by five feet radome if you scale up it 42 becomes four feet by eight feet long so the drawing is much larger than is described and they also 43 drawing shows two arrays of antenna vertically stacked could mean six antennas instead of three 44 antennas and so the belief is that Verizon is building a mono pole that will serve as a platform for the 45 attachment of much more equipment. The recommendation we have for the Oty is we should require 46 Verizon to resubmit its application and drawings to clarify whether antennas are to be located on only 47 one mono pole or if antennas will be located in two mono poles. If future antennas are planned by 48 Verizon on any of these mono poles their size and position must be shown with a dot line on the 49 drawings. 50 51 I could also use this time to comment on inconsistency with the Qty of Palo Alto's Comprehensive Plan. 52 Our Comprehensive Plan states Item 3 the plan establish the physical boundaries of residential and 53 commercial areas and set limits where necessary to ensure that business and housing remain compatible. 54 It encourages commercial enterprise, but not at the expense of Qty's residential neighborhoods. The 55 landmark lawsuit mentioned here 0 Lane and 0 rockers states that the Land Use and the Community 56 Design Elements provides a constitution for the development of public and private properties. That aty of Palo Alto Page 14 1 means the property may have temporary use, it may have conditional use, it may have interim uses, but 2 in the final analysis the property can have no use that will conflict with or do violence to the underlying 3 Comprehensive Plan designation, which for the proposed project in this property is the single family 4 residential. So in conclusion no use within single family residential Comprehensive Plan designation 5 should be approved by the aty so that the ultimate development of the property will be inhibited or 6 impaired. In the case the ball field becomes not sustainable, of course we don't want to see that 7 happen, we also love the ball field it can be readily removed for residential subdivision or a mansion, but 8 the south side is a long term contracted use that cannot coexist with a single family residential on less 9 than three acre site. 10 11 I also wanted to talk about the inconsistency with the Municipal Code. The Land Use and Community 12 Design Element is clear that there are some 35 identifiable residential neighborhoods in Palo Alto. As a 13 single family residential property zoned R-1 this site is in a residential neighborhood and our 14 Comprehensive Plan Policy L12 specified to preserve the character of the residential neighborhoods by 15 encouraging new or remodel the structure to be compatible with the neighborhood and adjacent 16 structures. So the Qty could either change our Comprehensive, our designation of the plan site in the 17 Comprehensive Plan to match the current use, which is open space and could have done so, but by 18 leaving it as a single family residential the Qty create a conflict with the project's (interrupted) 19 20 Chair Lippert: Could you wrap it up please? 21 22 Ms. Liao: Thank you, yes. So a finding cannot be made that the proposed project is consistent with the 23 Qty of Palo Alto's Comprehensive Plan and the proposed project does not accomplish the objectives, 24 polices, and programs of the Palo Alto Comprehensive Plan as it may create a fire hazard, does not 25 provide for the neighborhood's general welfare, and does not create and it does create an unattractive 26 and disharmonious community. Thank you so much. 27 28 Chair Lippert: Thank you, and if you wouldn't mind just giving a copy of your comments to the secretary 29 so that they're transcribed into the record appropriately. Thank you. 30 31 Ms. Liao: Thank you. 32 33 Chair Lippert: Mark Priestley followed by Kim Amsbaugh. Amsbaugh, ok. And you'll each have three 34 minutes. 35 36 Mark Priestley: Mark Priestley, Secretary for PALL. So a couple comments; I've been the Board Member 37 who has worked most closely with Verizon and our neighbors. I want to be clear; we're talking about a 38 handful of neighbors who've expressed to me concerns. I know we've seen a long list of neighbors who 39 very eloquently expressed concerns about so many different issues, but having worked with them over 40 the last four and a half years what I've found is having gone into this with the intent to be a good 41 neighbor, which is something we really believe is a value is we've listened to their concerns and the 42 concerns initially started off with concern about irradiation from the cell tower and then it turned to 43 concerns about the value on their real estate if we put a cell tower in. And then to respond to those 44 concerns we've gone through a number of revisions over four years, probably four different project 45 proposals all to respond to their concerns and needs. Each time that we've done that a new set of 46 concerns were raised and we've tried to address those. 47 48 To say that changes have been entered to the project is correct, but they've all been done I think in the 49 spirit of the Palo Alto process to try to have a mentalist approach to it we deliver to the community our 50 neighbors and we're concerned about the safety and care of our kids and that's really important to us. 51 We would not have gone forward with this project if we were concerned about the radiation or the 52 impact on property values of our neighbors. We've seen studies that show that it has no impact on 53 property values. We've been told and we've seen reports that the radiation is not an issue. When I had 54 gone through about three revisions I asked our neighbors was there any change we could make that 55 would satisfy them short of not doing the project and I was told only not doing the project. 56 aty of Palo Alto Page 15 1 We believe the project is a value to the community. We believe cell coverage in South Palo Alto needs to 2 be improved. We're doing this partly for all of our neighbors, not for the handful of neighbors are looking 3 for a reason to stop us. We've worked really hard to do this. I urge you not to let them slow you down. 4 It's clear to me their strategy is to delay and defer this forever and hopefully Verizon would eventually go 5 away because the cost to do this project becomes so prohibitive. I think this is something we want to do 6 for the citizens of Palo Alto. Little League will benefit. 7 8 Chair Lippert: If you could wrap it up please. 9 10 Mr. Priestley: Little League will benefit I admit, but the kinds of improvements will only benefit the kids. 11 So I urge you to vote today on this project. 12 13 Chair Lippert: Thank you. Kim Amsbaugh followed by Don Amsbaugh. 14 15 Ms. Silver: Chair Lippert? I, let's see... do you want to take a break? 16 17 Ms. French: If it's possible just to put a pause on the public speakers for a moment we have a fire drill 18 coming up at 10:16. We have two members of the staff, Gordon who we've called and Dave Dockter to 19 answer some questions about hazardous materials and the trees and I'm wondering if we couldn't pause 20 so that they can go at the fire drill? 21 22 Chair Lippert: Sure. We only have a couple more speakers here though. We only have one, two... we 23 have 12 minutes worth of speakers and the drill; yeah it is cutting it a little close. Sure. Yeah, why don't 24 we do that. 25 26 Kim Amsbaugh: I know the (interrupted) 27 28 Chair Lippert: Let's finish the public hearing, we'll pause for the drill and then yeah, it's great. So why 29 don't we do that? 30 31 Ms. Amsbaugh: Does that mean I'm on? 32 33 Chair Lippert: You are on. 34 35 Ms. Amsbaugh: Alright. Hi, my name is Km Amsbaugh. I'm a Board Member of the PALL and am in 36 charge of sponsorships. From the Little League Board's perspective the opposition has taken its efforts to 37 the next level with this manifesto of 69 pages and aggressive claims against the League all coming from 38 someone who only yesterday was trying to get our site deemed historical because of his love of the park 39 and the meaning of it to the community. This group isn't interested in working with us to build a project 40 that makes everyone happy. They blast us for the numerous iterations of the plan, but yet the reason for 41 these iterations is because we're trying to collaborate with them, to cooperate with them, to listen to 42 their needs. This Not In My Back Yard (NI MBY) close-minded no cell tower approach they aren't thinking 43 about the greater good, the fact that the neighborhood will enjoy better cell service, and that the League 44 potentially can use funds from this project to pay for capital improvements that will make Middlefield Ball 45 Park an even more amazing place. 46 47 I know the ARB previously lovingly I'm sure called the ballpark, some aspects of it at least, unattractive. 48 And believe you me, we know. There's many improvements we'd like to make, but as any nonprofit 49 organization we rely on donations and fees to cover the costs of everything from uniforms to field 50 maintenance to umpires and equipment. It costs us actually $35,000 a year to pay the fees to the Qty 51 for the use of their parks and fields for games and practices. We spent $81,000 last year on field 52 maintenance and that doesn't include the $38,000 spent on an unplanned irrigation replacement that was 53 needed. We basically break even. We're proud of the fact that we live within our means and paycheck 54 to paycheck, but yet it doesn't allow us to look ahead and take steps to improve the field. Instead it's all 55 about maintenance and praying some massively expensive disaster doesn't hit us too hard. 56 aty of Palo Alto Page 16 1 The additional funds from this Verizon project will allow us to look forward to look at ways to proactively 2 improve the ballpark and make the changes we have been wanting to make from the dugouts to the 3 bathrooms to the batting cages. After all our jobs as the PALL volunteers is to leave the League and the 4 ballpark a better place than we found it. This opportunity with Verizon helps us fulfill that obligation. We 5 aren't thinking about ourselves, we're thinking long term about the improvements future Board Members 6 can make to the ball field and about the future players that one day will play baseball there and oh yeah, 7 while at the ballpark we all can enjoy better cell service too. Thank you. 8 9 Chair Lippert: Thank you. Don Amsbaugh followed by Kristine Foss. Kristin Foss. 10 11 Don Amsbaugh: Hi, thank you for the opportunity to speak. I'm Don Amsbaugh and I'm here to speak in 12 favor of the cellular antenna and to defend PALL. I'm a Board Member, a League Manager, and a parent 13 of three children who have played in the League. As a League we're a group of volunteers working year 14 round to provide a safe and enjoyable experience for roughly 1,100 children a year. The proposal with 15 Verizon represents an opportunity for our League to have a small but steady income to ensure we can 16 continue to service the community in the future. We are acting not on our behalf, but on behalf of the 17 community. 18 19 Our opposition on the other hand is not. They are not coming here on behalf of the community. They 20 are not coming here in the spirit of cooperation. They have come here to pursue their own agenda. 21 They want to distract, confuse, and do whatever it takes to prevent this antenna installation from moving 22 forward. Initially they attacked our CUP with the Qty for the lighting of youth baseball games. Then 23 they attacked the science and safety of the cellular antenna networks. They tried to block this with a 24 historical designation of the ballpark based on falsehoods. Now they are paying to have a lengthy report 25 generated that goes beyond the cellular antenna proposal, but is attacking the process and the League 26 itself. 27 28 Throughout this process for the last four years we have reached out to our neighbors and the community 29 to solicit their feedback on this project. Our core function is as a League is to serve the community. As 30 such we have continually accommodated their requests and as a result Verizon's scaled back their initial 31 plans and is now bringing to you a proposal we can all live with, but the opposition is still here fighting 32 this proposal. I do not believe there is any accommodation we or Verizon can make that will make them 33 happy. Theirs is an obstructionist NI MBY argument designed to distract you; for example, they claim a 34 pole is 60.3 feet tall and therefore in violation of the CUP. They said it's four feet higher than it should 35 be, 0.3 feet is not four feet, 0.3 feet is four inches. I ask that when you review this proposal please bear 36 in mind who is for this and whose opposed and what the respective motivations are. We are here for the 37 community and the opposition is here for their own interests. Thank you. 38 39 Chair Lippert: Kristin Foss followed by Ken Allen and I'm coming down to the last few speakers here. If 40 there are any other speakers please get your cards in. 41 42 Kristin Foss: Hi, I'm Kristin Foss the President of PALL. I've only been President for the last year and a 43 half so this project predates me by quite some time. My first exposure in fact to the feedback that we 44 were getting from neighbors was a one on one meeting at Middlefield ballpark where we looked at the 45 location and talked about what we could possibly do to make this amenable to neighbors. At that time I 46 was told by this neighbor A) the only thing I could do was break my contract with Verizon and B) that if I 47 didn't do that they would hate to have to shut us down. And what you're seeing today is their latest 48 attempt to do that. They've been talking a lot about due process and slowing down the decision, but this 49 isn't about due process, this is about obstruction. It's obstruction when we get 70 pages of erroneous 50 report two days before this meeting. It's obstruction when Mr. Yotopoulos files an application to have 51 our privately owned ballpark made into a historical landmark both without telling us and against our 52 wishes. It's obstruction when you see a list of ancient violations to CUP's that he's had to go look up. 53 This is all an attempt to shut us down unless we cancel our legal agreement with Verizon. 54 55 I did want to talk a little bit about the lights because I think this is a particularly egregious form of 56 obstruction. While it's true that in the six years that we've had a CUP for lights there was a period of aty of Palo Alto Page 17 1 time when we were not meeting that CUP we were using the lights every night. In an all -volunteer 2 organization as positions got passed on the part that we were only allowed to use it for two nights got 3 lost. As soon as I was informed of that as President we canceled a game for the very next night and 4 since then have only ever used it two nights a week. It's on a timer so that it can't go late and there's no 5 manual control onsite so a coach can't think oh, I want to run a practice and turn the lights on. I've 6 given my phone number to all the neighbors; I've never gotten a phone call. What happens is when a 7 game ends early at 8:15 and the lights are on until 8:30, which is what happened this last Monday ,they 8 wait until everyone is gone, they run over to the field to take a picture and they send it to the Qty. I 9 have lighting reports that I've submitted to the City to show that we have been in compliance with our 10 CUP since I heard about this. So on behalf of the 1,000 children in PALL and several hundred families I 11 ask you to please make a decision on this and let us move forward. Thank you. 12 13 Chair Lippert: Thank you. Ken Allen followed by Mark Weiss. Mark Weiss is our last speaker so if there's 14 any other speakers please get a card in. 15 16 Ken Allen: Good morning, my name is Ken Alen, I live on Grove Avenue. I'm the President of the Adobe 17 Meadow Neighborhood Association and the Little League property is within the jurisdiction of our 18 neighborhood. I'm here speaking for myself and perhaps several thousand other families who would 19 benefit from improved wireless in the neighborhood. We know now that over 40 percent of the residents 20 of America rely on cell service. Now I'd like to call a spade a spade. What you witnessed here is a 21 filibuster. It's been expensive, it's been wasteful, and it has not been relevant to the jurisdiction of the 22 ARB. So I'd like to talk about a couple of things that is, that are within your jurisdiction. 23 24 First of all I'd like to point out that previously there was an approved antenna for one of the cell, one of 25 the towers at the site. Clearwire applied for and received approval to build on this site. There was no 26 opposition at that time. The sort of filibuster you've seen here is actually a lobbying indirectly that would 27 probably be detrimental to those who oppose this particular cell site because there is always the 28 possibility that they'll put the 125 foot tower on the site of the power substation adjacent to the Little 29 League park, which would provide for colocation and much greater coverage. I'd also point out that the 30 DAS antenna system of AT&T, which has been installed in our neighborhood, has been reported as being 31 inadequate. So colocation is a future possibility for this site, so I would suggest Number 1 that you allow 32 an application early on to allow 500 square foot larger building than is proposed and that the tower, the 33 stanchion for the light tower be allowed to be wide enough to accommodate the conduits that are 34 needed to support colocation on this particular tower. 35 36 Finally the argument against the hydrogen fuel cell makes the case that Verizon would actually prefer; 37 they'd rather have a diesel generator. It's cheaper, it's more reliable, it's known technology, the fuel is 38 less volatile and there's no need to bring in any backup generators in event of an emergency. So I would 39 strongly suggest that you allow for accommodation to let Verizon do what they originally proposed. The 40 only reason they're going with the fuel cell is to minimize the noise that these particular neighbors 41 complained about. Now that it's located in a different location noise is much less of an issue and a diesel 42 generator would make much more sense. If you have any questions I would be happy to entertain them. 43 Thank you. 44 45 Chair Lippert: Thank you. And our last speaker will be Mark Weiss. 46 47 Mark Weiss: My name is Mark Weiss; I live at 1788 Oak Creek Drive. It's very interesting observing this. 48 I have to admit I'm not, I don't have a kid on that field, I've actually never played on that field and it's 49 interesting to hear our neighbors with strong opinions on either side. And I hope we can come to a 50 resolution that people are reasonably can all live with. That's a democracy. I think I'm going to tone 51 down. I did make a speech September 18th, pretty strident speech. I still basically stand on the position 52 as opposed to Citizens United or McCutcheon Supreme Court decisions, corporations are not people and I 53 think that applies here and that I still believe that the corporate interest is filling a void that the public 54 sector somehow is permitting and I think that's a problem, but obviously I appreciate being able to talk 55 to people on my device and I appreciate that the leadership of the local organization and the private aty of Palo Alto Page 18 1 property have vetted this project and are in favor of it. So, the only, yeah so it'll be interesting to see 2 how it turns out. Thanks for your time. 3 4 Chair Lippert: Thank you Mr. Weiss. Having no other speaker cards I will close the public hearing. Mr. 5 Simpkinson would you like to add your comments? Do you have time or do you want to do it after the 6 drill? 7 8 Gordon Simpkinson, Kutzmann & Associates: Thank you Mr. Chairman. We are going to be having a fire 9 drill in just a few moments so I can give you some preliminary comments on what we reviewed and then 10 if you've got extended questions we could probably continue after the fire drill. Just so the public is 11 aware all staff are required to meet at the staging point out on Forest Avenue. The public is encouraged 12 to participate. There will be staff members clearing the floors and making sure that the building is 13 completely evacuated as part of the drill, so just wanted to make sure that you're aware of that. 14 15 My name is Gordon Simpkinson. I was previously the Fire Marshall in Palo Alto from 2008 to 2012. I 16 have been retained by the Qty as a consultant reviewing new projects for compliance with fire prevention 17 hazardous materials requirements. The material of concern primarily with the Verizon project is 18 hydrogen gas. There have been some comments that have a misperception about the temperature and 19 pressure at which the hydrogen gas will be stored. This is not a high pressure storage type. It's actually 20 stored in cryogenic state, which means it's in extremely cold liquefied at near atmospheric pressure. So 21 there's not a tremendous amount of pressure that will be released in the event of a spill or release of the 22 hydrogen gas. 23 24 One of the first things we do whenever we get any type of a project is we look at what the potential 25 worst case scenario is and the amount of energy that's contained within the hydrogen that Verizon has 26 disclosed to the City is approximately the equivalent of around 40 gallons of automobile fuel. So this is 27 not a large scale event that could happen in the event that the material is all released. There actually the 28 largest single container is smaller than that. They have multiple smaller canisters that are shown on the 29 drawing. So what we've looked at is what is the potential in terms of if the material suddenly released 30 and ignited because it is flammable, what are the potential consequences? The enclosure that the 31 material is going to be contained within is cinderblock and is not there's not going to be sufficient 32 pressure to cause projectiles to form. The roof panels are going to be the weak point of the structure so 33 as the pressure within the building is release it's going to be released upwards rather than outward 34 towards other exposures or buildings in the community. So in our evaluation we did not look at this as 35 representing potential for a sustained large scale fire. What you'd have potentially in the event of the 36 hydrogen release is going to be an initial deflagration where you have rapid burning of the contents of 37 the hydrogen, which will be over within very few seconds and then after that you're going to have the 38 type of fire scenario that you'd have with any type of equipment enclosure, which is that you've got the 39 potential for energized electrical equipment where you've got some involvement of insulation and other 40 plastics that might be contained within the enclosure. 41 42 So one of the things that we also look at is whether there are alternatives. As you heard one of the 43 speakers mention diesel fuel is a potential alternative for Verizon to use. They could also use larger scale 44 batter banks and the problem with larger scale battery banks is if you have a fire involving more batteries 45 than you've got much more potential for toxic smoke and fumes to be produced in a fire. So there's 46 always a balance between environmental concerns. And there's our fire alarm. 47 48 Chair Lippert: Ladies and gentlemen please clear the building. 49 50 The Board took a break for the fire drill. 51 52 Chair Lippert: If everybody would take their seats we'll reconvene and we will continue with Mr. 53 Simpkinson. 54 55 Mr. Simpkinson: Thank you Mr. Chairman. I would like to revise the comments that I made earlier. The 56 folks from Verizon did correct me that the current version of the application does call for gaseous storage aty of Palo Alto Page 19 1 which means that this, the gas would be stored in cylinders at approximately scuba tank pressures. Each 2 cylinder contains the energy equivalent of about one half gallon of diesel fuel so the total energy 3 equivalent works out to less than 10 gallons of diesel fuel. And those cylinders will be stored in a cabinet 4 that has a fire sprinkler within it so the if there is any significant heat which is pretty much the only thing 5 that causes a cylinder just to fail the sprinkler head will go off long before the failure point of the cylinder 6 and the cooling of the water would prevent any catastrophic releases. 7 8 So one of the things that Verizon can possibly do during the building permit stage is they can also look at 9 whether there's other means of backup power. They were discussed earlier: diesel fuel is a possibility; 10 natural gas would be a very good possibility as well. So at this stage I don't think that there's anything 11 that we've seen that creates a significant public hazard and that's what we've proceeded with our 12 recommendation for approval based on. 13 14 Chair Lippert: Thank you very much. If you wouldn't mind just hanging around for a couple of more 15 minutes in case Board Members have questions for you, ok? 16 17 Mr. Simpkinson: Can do. 18 19 Chair Lippert: Dave Dockter, if you'd like to address the trees and just speak very briefly on that? 20 21 Dave Dockter, Arborist: Yes, thank you Chair and Board Members. Regarding the eucalyptus trees that 22 are in relatively close proximity to the antenna taking a look at them they are truly a historic row that 23 were part of the original park design. They are actually red gum eucalyptus or silver dollar eucalyptus 24 since that magazine likes to call them, but they are part of the historic row and the last in the row is 25 actually in Mitchell Park Community Center, the most largest and glorious of the whole row, but I 26 consider those really a very significant in their entirety, whole row is a significant natural feature to the 27 parkland. 28 29 Proximity to the antenna the consultant, the applicant's or the neighborhood consultant mentioned the 30 fire danger and the proximity to eucalyptus. The story on that is most of the studies in relation to fire 31 danger the Oakland Hills and all prompted are come from the blue gum variety; heavy, heavy brush and 32 duff, lots of stringy bark on that species. Truly is an enhanced fire potential. This species on the Mitchell 33 Park, the red gum, very low; it's not going to be a fire danger at all. It doesn't have the bark and the 34 stuff that hangs in the branch stems so I consider that a very low, low to nil probability of fire danger. 35 36 Regarding clearance he mentioned 25 foot clearance from combustible material I think that quite 37 comfortably the trees can be maintained 25 foot clear plus. If you wanted more comfort to this ARB or 38 staff could add a condition of approval that there's a 25 foot minimum clearance be maintained 39 perpetually to the entire row for the life of the project. And that would be just periodic pruning that 40 would keep a clear line of 25 feet. We could do that comfortably. Verizon has already indicated the 41 willingness to do that for the first time, but that could be continued in perpetuity, which would be a 42 reoccurring trimming maybe every five years on a pruning cycle and staff could assist with that. A 43 condition of approval could be crafted quite comfortably with that. But I think the fire danger low, 44 pruning clearance could be maintained. 45 46 And regarding the last element that we brought up of screening the trees are a really good backdrop 47 from two vantage points, from the neighbors across the street the trees are a backdrop that kind of 48 makes the whole thing kind of not invisible, but diminished. If a storm did take out some of the trees 49 and broke out large sections of the eucalyptus, yes, then the antenna could become quite visible from 50 the park to the antenna and from the neighbors to the antenna. So keeping the integrity of the trees is 51 in my opinion is pretty darn important. That could be done with pruning though and with the condition 52 that Mr. Reich could include here we can do that. I 'll be available for any questions if you need. 53 54 Chair Lippert: Thank you very much Mr. Dockter. Ok, so first of all I want to thank members of the 55 public for coming by today as well as the applicant and putting up with such a long hearing. Just so you 56 understand our purview here deals with quality and character issues. What you have said in the public aty of Palo Alto Page 20 1 hearing is important; however, we are required, we have our own findings that we're supposed to make 2 in terms of reviewing the project and so we will return to our Board for our deliberations as well as 3 hopefully a Motion. But I want to thank you and all of your comments have been captured and recorded. 4 Thank you. So with that we will return to Board Member Malone Prichard. 5 6 Board Member Malone Richard: Ok, I did have just actually one additional question that came up as a 7 result of hearing a lot of the discussion. The fuel cell manufacturer have they had an opportunity to take 8 a look at the amount of enclosure you're putting around it? This is for the applicant. And the only 9 reason I ask that is that if they had some concerns about how the enclosure is constructed that there 10 might be changes in the way you propose it looks. 11 12 Mr. Durand: Great, yes thank you; Chris Durand again representative for Verizon Wireless. We have had 13 preliminary discussions with ReliOn regarding the proposed fuel cell. What they typically like to see is as 14 we get closer to preparing construction drawings they would take a look at the construction drawings and 15 make any recommendations concerning venting or separation pertaining to the hydrogen fuel cell. 16 17 Board Member Malone Prichard: But they have been aware of the fact that you're enclosing it and having 18 venting? 19 20 Mr. Durand: Yes, yes. 21 22 Board Member Malone Prichard: Great, so I wanted to thank you for listening to the comments that we 23 provided last time. I think you've got some very good solutions going here. I am in favor of the acid 24 wash finish and I very much appreciate what you're doing to provide additional shielding on the lights. 25 And the changes to the design of the shed and the color and materials are much improved. So I am in 26 support of the project as presented. I do have a couple of items on the findings and conditions of 27 approval, but I 'll hold those for later. 28 29 Chair Lippert: Board Member Gooyer. 30 31 Board Member Gooyer: I agree I like the color scheme that was presented. I agree that the acid wash to 32 make it look like the other poles is probably the appropriate way to go. It's interesting because I brought 33 the question up earlier it seems like there's a lot of concern about the hydrogen fuel concept. I mean if 34 that's the case why not just go back to the diesel generator? I get the impression that Verizon made the 35 change because the community wanted it that way. So I mean I've done half a dozen at least diesel 36 generator buildings that with baffling systems in it that you can stand five feet away and you can't hear 37 the thing running at full boar on the inside so that would be I mean if that's a solution that is actually 38 sounds like a win -win where apparently the neighborhood would be happier not to have the hydrogen 39 system and as long as we make it so that the noise generation is subsided I think it's probably a much 40 easier and a much more generic solution to that. Other than that with everything I've seen and based on 41 a couple of the comments made by the Fire Marshall and other things that I could support this project 42 the way it is right now. 43 44 Chair Lippert: Board Member Lew. 45 46 Board Member Lew: And I can support the project as well. I would say that after the last hearing I did 47 go back out to the site and look at the site again based on the neighbors comments. And I think the 48 main thing in my mind is the cell tower is 300 feet from the sidewalk and it's maybe like 385 feet from 49 the nearest residence that's a substantial distance. And I stand on the sidewalk at Middlefield the just 50 because of foreshortening the cell tower is actually lower than the chain link fence for the ball field. It's 51 maybe about like three-quarters of the height of the chain link enclosure. So we're talking about a huge 52 distance. This is not something that's in anybody's back yard. I can understand that people don't want 53 anything near their backyards, but this is really it's a huge... it's almost a whole city block like you were 54 talking about 400 feet. 55 aty of Palo Alto Page 21 1 I do like all the changes that you've made to the building. I think my only sort of nitpicky comments are 2 I think the drawings are showing wood and I think you're showing like a Hardie plank cement board and 3 to me they're like completely different things. Like to me Hardie plank doesn't look like wood siding at 4 all. It's a perfectly fine material, I think it's an appropriate material, but I think that the drawings should 5 just be amended to show that. 6 7 And I think also too the perforated metal sample that's called out on the drawings the material should be 8 submitted as well. Is it? I see metal, but I don't is that perforated? Oh, I see it's the back. Great. Ok. 9 Ok. That's pretty... yeah, ok, I think that's ok. Did you not mention before that you were thinking as like 10 an insect mesh? At the last hearing I think that there was some I thought it was a much finer... 11 12 Mr. Durand: Yes, we were contemplating that; however, after speaking with Grating Pacific who provided 13 those samples that's really a surface type material that you would put on stairways or in loading docks to 14 prevent slip and fall type things. This is a much more durable heavy duty material. It's also galvanized 15 in that acid wash finish and it's just small enough so a baseball can't get through it. 16 17 Board Member Lew: I was wondering if you would consider something slightly finer? I'm thinking there 18 are so many kids and kids climb up everything as I used to, something that you can't get a toe hold in 19 where they're climbing. Because like, I mean like a kid could climb, use that to climb up. 20 21 Mr. Durand: True, it's going to be seven to eight feet above grade though. It's just going to fill in that 22 portion between the roof at each end. We did look at a smaller opening, but we were also concerned 23 about maximum air flow and ventilation, but if you'd like we can look at some other (interrupted) 24 25 Board Member Lew: I would just say, I mean well we'll see how the Board feels. I would say just 26 consider it. I mean an elementary school I mean I was amazed at what we could climb up like, just like 27 a metal pole with nothing, no handles or whatever. I mean kids are pretty crafty. And I think that's all 28 that I have. I think that the staff has been very good and addressed all the comments, most of the 29 comments that the public has made and then the rest of them I think we, the Board, doesn't have 30 purview over so I won't address those. Thank you. 31 32 Chair Lippert: Ok, first of all I want to thank the community for coming out again and speaking on this 33 item as well as the ballpark group, the Little League group. And I'm pretty much in agreement with my 34 colleague's comments. The only thing I vary with a little bit is that with regard to the antenna itself. I 35 think that up at the top there where you've got it almost looks like a PCB storage tank it's the, it's that 36 cylinder because it sticks up above the tree line there it should almost be painted that camouflaged blue 37 that the bottom of airplanes during the Second World War were painted with. It was a blue color so you 38 couldn't see the planes up in the air; however, as you know sky color changes, but I think that that 39 probably will read a little less like a shadow of a cylinder up there than anything. And so I think that that 40 blue color might, might work. However for the rest of the pole I think a galvanized acid washed 41 galvanized finish is appropriate and the main reason is that that will require the least amount of 42 maintenance and it closely resembles what is currently there. I want this to just sort of go away and just 43 be a pole and that's what it should be, a light pole. 44 45 I do have some concerns with the colocation however and with regard to the colocation what I'm 46 concerned about because this is the crown jewel of cell sites in the Qty and equipment changes and 47 antennas change and many, many years ago I used to be a Nextel person with the walkie talkie and it all 48 this technology changes so fast that my expectation is that we are making an approval today that's going 49 to be set in place for the next 20, 30 years, and maybe even longer. And so whatever happens on this 50 site really needs to take into account not things getting smaller, but things getting bigger and how do we 51 accommodate that. And that's really where I'm having difficulty with this. If we allow the CUP for this 52 one the next one that comes along I'm very concerned about where that would be located and how it 53 would be accommodated on the site. What I am also concerned about is the agreement with Verizon 54 having this location actually tying the competition up elbowing them out and saying oh, we just don't 55 have any room for you. And so that's my other concern. 56 aty of Palo Alto Page 22 1 Other than that we deal with quality and character issues here and I think that the proposal fits within 2 the purview of this Board and its incidental to the site. So any other comments here or a Motion? 3 4 MOTION 5 6 Board Member Malone Prichard: I did have a couple question or comments on the findings I wanted to 7 go through. In Attachment A our draft findings for approval the first finding is that the design is 8 consistent and compatible with applicable elements of the Palo Alto Comprehensive Ran it then goes on 9 to talk about mixed -use developments. I think this really should be citing Compressive Ran Element B13; 10 B13 is specific to supporting the development of communication infrastructure. So that ought to be our 11 first finding. And in the conditions of approval Planning Condition Number 19 oh, it's correct. It says it's 12 the same color and material as the existing light poles. I do want to be sure that that allows for the acid 13 wash. And that's all. 14 15 So I would move that we recommend approval of the project with those two modifications that I just 16 mentioned and allowing the applicant to the option to either do the hydrogen fuel cell or a diesel 17 generator, that the finish of the light pole will be acid wash, and that the approval be amended to specify 18 that it is Hardie plank not wood siding. 19 20 Chair Lippert: Do I have a seconder on that Motion? 21 22 SECOND 23 24 Board Member Gooyer: I'll second. 25 26 Chair Lippert: Board Member Malone Prichard do you wish to speak to the item? Speak to your Motion? 27 28 Board Member Malone Prichard: Yes, as you mentioned we are really concerned with quality and 29 character and I believe that the applicant has done a very good job at minimizing the impact of this 30 facility on the ball field and has made a number of modifications in response to our comments and those 31 of others. So I feel that this is the best application that we can have for this location. 32 33 Chair Lippert: Before we move forward with the Oty Attorney here I want to ask the seconder if they 34 have any comments they wish to make? Ok, the City Attorney. 35 36 FRI ENDLY AMENDMENT # 1 37 38 Ms. Silver: Thank you Chair Lippert. I have some proposed conditions of approval from the Urban 39 Forester that I'd like to read into the record as well. And when the applicant has an opportunity to speak 40 at the end they may also want to address these additional conditions to verify that they're acceptable. 41 The first condition regarding the red gum eucalyptus trees at Mitchell Park to achieve perpetual 25 foot 42 foliage clearance with strategic structural pruning through the following measures: A) the entire row of 43 historic red gum along the Mitchell Park property line shall be perpetually maintained in a consistent line 44 with 25 feet clearance from the antenna for the life of the project; and B) each pruning event shall be 45 approved subject to a public tree care pruning permit from Urban Forestry. 46 47 Chair Lippert: Board Member Malone Prichard do you accept that language into the Motion? 48 49 Board Member Malone Prichard: I do. 50 51 Chair Lippert: Seconder? 52 53 FRI ENDLY AMENDMENT # 1 ACCEPTED 54 55 Board Member Gooyer: So do I. 56 aty of Palo Alto Page 23 1 FRI ENDLY AMENDMENT # 2 2 3 Chair Lippert: Ok. And I have a Friendly Amendment that is that the cylinder be painted a, or the 4 antenna enclosure be painted a sky blue color and that to be reviewed by the subcommittee. 5 6 FRI ENDLY AMENDMENT # 2 DENIED 7 8 Board Member Malone Prichard: I do not accept that. 9 10 Chair Lippert: Ok. Ok, so with that we have a Motion, a seconder, any other discussion? Ok. The 11 applicant you have five minutes for closing remarks or rebuttal. 12 13 Mr. Km: Thank you once again for allowing us to give this presentation. I just personally wanted to say 14 thank you to Board Member Malone Prichard and Chair Lippert for serving on board and as an 15 architectural professional I'm very respectful of your guy's position and I just appreciate your guy's 16 contribution to our Qty. Thank you. 17 18 Mr. Albritton: Paul Albritton, outside counsel. I had seven pages of rebuttal to the presentation so I don't 19 think I 'll make that at all. I appreciate your support of the project. Verizon Wireless is willing to 20 participate in the landscape condition as described and we appreciate the flexibility on the generator. 21 The generator was originally changed out because of the different location of the shelter and the sound 22 issue, but even the cylinder, the wall, the block wall actually blocks the sound so much that we can easily 23 comply with the noise standards for the aty with the generator at that location so... 24 25 Chair Lippert: Can you speak up a little? 26 27 Mr. Albritton: Yes, of course. So we'll take up we, I just said we appreciate the flexibility and we'll accept 28 the land, the tree trimming condition, and I 'll dispense with my rebuttal to the comments that were made 29 and appreciate your consideration of our project. 30 31 VOTE 32 33 Chair Lippert: Thank you. Ok, so we have a Motion a second, any other discussion? Ok then we will 34 vote. Al those in favor of the Motion and the amendments say aye (Aye). Opposed? Opposed. Ok, that 35 passes 3-1-0-1. Thank you very much for your time and we will take a short break. 36 37 MOTION PASSED (3-1-0-1, Chair Lippert opposed, Vice -Chair Popp recused) 38 39 Ms. Silver: Just to clarify were there any no's? 40 41 Chair Lippert: Me. 42 43 Ms. Silver: Oh, thank you. 44 45 Chair Lippert: Thank you. aty of Palo Alto Page 24 Attachment F 1 Planning and Transportation Commission 2 Draft Verbatim Minutes 3 December 3, 2014 4 5 EXCERPT 6 7 Public Hearing 8 3672 Middlefield Road 14PLN-00071: Public Hearing of a Conditional Use Permit (CUP) 9 following the Director's Tentative CUP Approval, for a Verizon Wireless Telecommunication 10 Facility (an 18 inch diameter, 65 foot tall monopole replacing an existing 12 inch diameter, 60 11 foot tall light pole in its current location, and associated equipment in an enclosure at grade) to 12 be located at the Palo Alto Little League Ball Field. Zone District. R-1(8000). Environmental 13 Assessment: Categorically exempt from the provisions of the California Environmental Quality 14 Act (CEQA) per CEQA Guidelines Sections 15061(b)(3), 15301, 15302, and 15303.For more 15 information contact Russ Reich at cu ss.reich(a,cityofpaloalto.org 16 17 Chair Michael: Reconvene the meeting and our next topic is a public hearing regarding a 18 Conditional Use Permit (CUP) for 3672 Middlefield Road and this is a quasi-judicial matter and 19 if Senior Assistant City Attorney Cara Silver were here I would ask her to instruct us as to 20 disclosure that we are required to make on quasi-judicial matters. So maybe Jonathan you could 21 just remind us of our, our duty in making that disclosure. 22 23 Jonathan Lait, Assistant Director: Well I'm not sure what it is that Cara offers up when she 24 makes those disclosures, but you're talking about ex-parte communications or? 25 26 So any communications... so any communication that Commissioners had had with members of 27 the applicant team or communications from the public or whether they're telephone calls, 28 meetings, any kind of conversation that you had that may have informed or... your decision 29 making or what you're bringing to this meeting so if you've had any of those communications it 30 would be appropriate now to state those for the audience. 31 32 Chair Michael: Ok, so let's make any required disclosures so Commissioner Fine. 33 34 Commissioner Fine: Thank you. I met with Jason Yotopoulos who I believe is in the audience to 35 speak about this issue. He provided me with some of the same reports as are provided in this 36 packet and just went over the concerns of him and some, of himself and some of his neighbors. 37 38 Chair Michael: Great. Commissioner Alcheck. 39 40 Commissioner Alcheck: I also had a meeting with that same individual and was presented the 41 same information that... no additional information that wasn't in the public, what do you call it? 42 The packet that was provided to me. 43 44 Chair Michael: Ok. Vice -Chair Tanaka. 45 46 Acting Vice -Chair Tanaka: I also met with that individual. We went over the material. I think 47 pretty much everything was in the packet so I got the Ballpark Cell Tower Proposal CUP 48 Compliance, I got the ReliOn Fuel Cell Solutions, and I got Report on Review of a CUP for the 1 1 Construction of a Personal Wireless Service Facility on the Palo Alto Little League Ball Field in 2 the City of Palo Alto. 3 4 Chair Michael: Ok, so I also met with Jason Yotopoulos and I received all of the same 5 information that Commissioner, Vice -Chair Tanaka detailed and in addition we spoke about the 6 purview of the Planning and Transportation Commission (PTC) and of the City Council in regard 7 to the appeal of the CUP. Commissioner Downing. 8 9 Commissioner Downing: I also got contacted by Jason. We didn't have a chance to actually 10 meet up, but we did text back and forth and I let him know I was going to read the materials that 11 had been presented to us as part of our packets today. 12 13 Chair Michael: Commissioner Gardias. 14 15 Commissioner Gardias: And as I disclosed in the e-mail to you, to all of you I met with Mr. 16 Yotopoulos as well and summarized the meeting in the meeting minutes. Thank you. 17 18 Chair Michael: Ok and I would also disclose that I think I along with other Members of the 19 Commission received a message that if we were available to meet with an attorney for the 20 applicant that that would be a possibility, but I did not have that meeting. So with that let's 21 initiate the matter with a report from staff, Russ? 22 23 Russ Reich, Senior Planner: Good evening, thank you Chair Michael; Russ Reich, Senior 24 Planner, Depaitment of Planning and Community Environment. This application has a very long 25 history. Staff has worked very closely with NSA Wireless on behalf of Verizon along with a 26 number of the neighbors from the community along with Mr. Yotopoulos that you've all met 27 with. This application began as a fake tree that was proposed very close to Middlefield Road 28 along with the equipment enclosure. That proposal wasn't found to be satisfactory by both the 29 neighborhood as well as staff. The applicant revised the application to move the fake tree further 30 away from the street along with the equipment enclosure and still staff and the neighborhood still 31 did not find that application acceptable. Staff had advised the applicant at that point to consider 32 locating the cellular antennas on top of the existing light poles. The site has four 60 foot light 33 poles on the site and staff felt it very appropriate rather than introducing new cell tower poles to 34 the site to locate on an existing pole to have the least visual impact. Unfortunately they came 35 back with an application where they were proposing two new light poles with antennas and that 36 was also not found to be acceptable. The new light poles would have a required a variance to 37 exceed the height limit for the R-1 zone. So they subsequently withdrew that application and 38 filed a new application in February of this year where they came in with six antennas on top of 2 39 existing light poles. They subsequently revised that application to only three antennas on top of 40 1 pole. Staff was very pleased to see that we finally had an application that had the least minimal 41 visual impact to the site and strongly supported that proposal. 42 43 The CUP is required because the site includes a monopole and is included a wireless 44 communication facility in an R-1 zone district. So the use permit along with an architectural 45 review application was approved by the Planning Director and the code allows provision for a 46 hearing to be requested on the CUP and that is required to appear before you, the PTC, and that 47 is why we're here tonight to discuss and make a recommendation on the CUP. Staff has 48 analyzed the letters and information submitted by Mr. Yotopoulos and many other interested 2 1 parties and fmds that there's no merit to the claims and reasoning for their request to have the 2 City deny and reconsider the CUP. 3 4 In your staff report there's a lot of detailed reasoning as to why we don't agree with many of the 5 things that they put forward in their letters. So we are recommending that you do uphold the 6 Director's approval and recommend to City Council that they approve the CUP. If the 7 Commission moves tonight the item will be heard by the Planning Commissioner, excuse me, 8 City Council on December 15th. And I've provided a short PowerPoint presentation that just 9 includes at Chair Michael's request the required findings for a CUP. And so these are the 10 findings that were provided in the Director's approval letter. There's a total of two. Finding 11 Number 1 is included on this slide, which you have at places and finding, excuse me, Finding 12 Number 1 is on the other screen. This is Finding Number 2 and then on the third slide is the staff 13 recommended Motion just so that you have that at your fingertips so if you wanted to modify the 14 findings in any way or to assist in making a motion you have that language handy in front of you. 15 So I'd like to turn this over to Senior Assistant City Attorney Cara Silver. She'd like to say a 16 few words about the Middle Class Tax Relief Act that has been mentioned throughout your 17 packet and thank you very much. 18 19 Cara Silver, Senior Assistant City Attorney: Thank you Russ. So we, an issue that keeps coming 20 up in the public process is the question of the colocation and what, what rights the Middle Class 21 Tax Relief Act which was a rider to a bill that related to cell tower locations has on this 22 particular application. So what has happened now is that the Federal Communications 23 Commission (FCC) has actually adopted new regulations that supersede the prior legislation. 24 The new regulations are in draft format. They are expected to be published in the federal register 25 actually very, very soon, in the next week or so prior to December 15th and thereafter go into 26 effect 90 days after. So under the new regulations, the new scheme, the rules proscribe that 27 they're a set of regulations that encourage the deployment of Distributed Antenna Systems 28 (DAS) and cell tower antennas in order to recognize that cell phone usage has increased in the 29 area. So they do take away a little bit of local control of this area. That's been a trend that we've 30 seen with federal regulation in this area is that they do impinge on local government control. 31 One of the critical areas where we've noticed this of course is in the area of Radio Frequency 32 (RF) emissions. The cities no longer have the ability to regulate cell towers and wireless 33 facilities with respect to RF emissions. 34 35 With respect to colocation what the new regulations do is they define, they provide a little bit 36 more definition and they so they state that where a colocation is it's not mandated as it was under 37 the Middle Class Tax Relief Bill, if a public agency can, excuse me I'm finding the language 38 here, if the colocation would defeat the existing concealment elements of the facility. So it's a 39 little bit, the standard is a little bit easier. It's a little bit more protective of the city actually than 40 the prior legislation. So I must say I haven't explained it very well, but there has, but there is we 41 do have some protection in one of the conditions of approval here where the applicant has agreed 42 to go through a conditional use process if there is going to be another colocation so even though 43 the federal law has some protection we also have sort of belt and suspenders protection through 44 this additional CUP application process. Thank you. 45 46 Chair Michael: So we have a number of speaker cards so I want to make sure that we use our 47 time in an effective way to get everybody's chance to be heard including any questions or 48 comments from the Commission. But before we do that let me just ask a point of clarification 49 and that is that in our approval of the CUP application it's important for us to focus in on the two 3 1 findings. And if these findings are satisfactory as stated that's one thing or if we think they 2 should be modified or strengthened or changed in any way then that would be something that we 3 would want to go into this evening. Is it important that we review in any detail there's numerous 4 conditions of approval. And I had assumed that our time would not be well spent going into any 5 detail on all of the conditions of approval, but I may be wrong. Could you clarify what we 6 should be focusing on in regard to conditions of approval? 7 8 Ms. Silver: Sure. To the extent any of the conditions of approval help you make the two findings 9 in the CUP regulations those, those conditions are important. Most of the conditions are 10 however kind of standard conditions that you see in many applications and do not really help 11 make the findings in the CUP so you don't need to focus on the bulk of the findings, but if there 12 are a few conditions there that help and if you would like to impose additional conditions to help 13 you make the findings you are also permitted to do that or make a recommendation to Council to 14 do that. 15 16 Chair Michael: Ok, so I'd like to get to the public fairly quickly, but are there any other 17 clarifying questions that the Commission would like to pose before we go to the public? Ok, 18 let's open the public hearing and each speaker who submitted a card and if anybody else is here 19 would like to speak hasn't already submitted a card please, please do so and you'll be 20 recognized. And Vice -Chair Tanaka will recognize you and you'll have three minutes. 21 22 Mr. Reich: Excuse me Chair Michael. I believe we would have the hearing requestor do a 23 presentation and then followed by the applicant's presentation and then we could get to the 24 public comment. 25 26 Chair Michael: You're so right. So let's do that. So the hearing requestor is Mr. Yotopoulos. 27 So you have 10 minutes. 28 29 Jason Yotopoulos: Ok, thank you for taking the time this evening. First I'd like to acknowledge 30 some of the neighbors. So we have here opposed to the cell tower if you could please stand? 31 We had a number of additional members earlier and we were under the impression through 32 communication by the Mayor and Hillary Gitelman that it was actually on the 10th. So this is not 33 our usual crowd, but let me go ahead and get started. 34 35 So what we're talking about here is the largest cell tower ever in a residential neighborhood 36 proposed at 65 feet. It's on a property that's significantly noncompliant. It's ground zero for our 37 kids in the neighborhood with extensive electrical equipment and hazardous materials just feet 38 from the kids and the tower is in open space 300 feet clear visibility all around it. It's frankly not 39 hideable. And so if we can turn to Page 2 you'll see substantial evidence in the written record. 40 You've reviewed presumably the Kreines report, the Planning report, and you can see the ex - 41 City Attorney of Los Altos, Atherton, and Morgan Hill who has submitted an evaluation of 42 where we're at and their impression of the process as well. You also have a letter from Charlene 43 Liao that focuses on the CUP lighting violations. 44 45 Today I'm only going to be covering the topics that are particularly relevant I've been told to the 46 PTC and we'll start with California Environmental Quality Act (CEQA). And so the Marc 47 Hynes who is the ex -City Attorney has determined that this project should not have been 48 categorically exempt from CEQA. The particular classes of exemption 15301, 302, and 303, 301 49 should not be expanding existing uses, whereas clearly a new monopole at a greater height and 4 1 width with new equipment enclosure is an expanded use. 302 is a reconstruction of existing 2 structures, but as Planning points out this is a stand, an applicant for stand-alone wireless 3 communication facility, which implies a new structure. And 303 implies that there's no 4 possibility that there would ever be significant effect on the environment. And given the 5 hazardous materials involved that's not applicable either. If the City maintains that 301 and 302 6 are applicable then the appropriate action would be to amend the CUP, the existing CUP. 7 8 So let's go ahead and move to Page 6 and let's talk about that CUP. If we could take a look up at 9 the, up at the board so hopefully everybody can see that. This is a residentially zoned parcel. 10 It's privately owned and in 1952 there's a CUP that enables them to play baseball. There were 11 only three conditions. The first was that it be renewed annually. It was renewed once. The 12 second condition was that there never be field lights on this property, which clearly there are as 13 of 2008. And the third condition was only a 20 foot sign limit and there was actually a sign limit 14 that was larger than that a number of years ago and the City cited the ballpark. So there's 15 precedent for going back to those and asking people to make corrections. '56 a clubhouse, a 16 storage building in '65, which is now used as an equipment shed, and from '65 to 2008 there are 17 numerous unpermitted non -compliant additions including batting cages inside the setback, three 18 storage buildings, chain link fence over 30 feet high in some cases it's non -compliant as well, 19 three flag poles, and an easement for one of the entry ways which is, where is no easement 20 permit for that easement. It's on City property that's the north most entrance. In 2008 again we 21 installed the light posts with a CUP. None were allowed to be taller than 60 feet although the 22 one that's been measured certainly is. Only for games, no more than twice a week, games no 23 later than 9:00 p.m. and complying with the noise ordinance. And if you review Charlene Liao's 24 material around that you'll see that there's a record for about a year of non-compliance on those 25 items and even today the lights shine directly in the neighbor's windows. 26 27 So now we're considering cell tower CUP on top of all these other CUPs when you can see there 28 are numerous violations and we would argue that a new CUP can't be issued until the most 29 recent are brought into compliance and the non, that includes the non -complaint issues as well. 30 If we move to Page 7 the Architectural Review Board (ARB) described extensive visual clutter 31 on the site. All of this was done without permits including the metal containers, the batting 32 cages with the offending fences. If you move to the next page you'll see the lighting on. 9:00 33 p.m. nobody's on the field and if you move to Page 9 what we're talking about here is ad hoc 34 incrementalism with permitting. So if we approve this we're saying it doesn't really matter what 35 we've said now, but rather what we said then, but rather what we say now. So a new CUP 36 shouldn't conflict an allowances, assumptions, or existing conditions assumed by prior CUP's. 37 38 And what we're asking for here, what Verizon and the ballpark are asking for is to expand light 39 poles from 60 to 65 feet, expand the number of the buildings on the site, so again the last CUP 40 that was issued stated two buildings. There are four currently and they are asking for a fifth and 41 an approval of the northernmost driveway. If we move to the next page according to the 42 Municipal Code any expansion of the building size area of a CUP necessitates and amendment of 43 the CUP, right? These are classified as buildings by the city code. In other words they shelter 44 any use. And erecting the batting cages as we discussed is a violation as well. These are 45 structures within the encroachment; backstop and fence height not permitted. We talked about 46 the lights shining. So if we move to Page 11 there's a lot going on on this property. It's 47 significantly noncompliant and it requires the amendment of the CUP to correct these existing 48 noncompliant issues. 49 5 1 Let's move to Page 13 and talk a little bit about Atkinson Faryson and Kreines evaluation as to 2 how this fits or doesn't fit with the Palo Alto Comprehensive Plan, which is one of the required 3 findings. The Comprehensive Plan encourages commercial enterprise, but not at the expense of 4 the City's residential neighborhoods. And the design element is proven to be, the land use 5 design element has proven to be the constitution in the landmark case O'Lawn and O'Rourke, 6 which means the property can have no use that may conflict with or do violence to the 7 underlying Comprehensive Plan designation. As I mentioned this is R-1(8000), ok? And the 8 ultimate development of the property should not be inhibited or impaired, but the bottom line 9 we're talking about here is a cell site is a long term contractual use. This is a 65 foot cell tower. 10 It's an easement as you'll see across the only ingress/egress on Middlefield Road and a building 11 with hazardous chemicals all enforced by federal regulation, ok? 12 13 If we move to Page 14 and look at the Municipal Code the code encourages new or remodeled 14 structures to be compatible with the neighborhood. Now this industrial cell tower clearly is not 15 at 18 inches wide and 60 feet tall, 65 feet tall. The City could change the designation of this site. 16 It's been used as open space for a long time and almost did so around the time that they were 17 using the, were looking to do the lighting, but in the end this application creates a fire hazard, 18 doesn't provide for the City's general welfare, and does indeed create an unattractive and 19 disharmonious community. In terms of zoning that's not compatible with the residential 20 neighborhood. An 18 inch wide monopole and the proposed building is a hazard. 21 22 Let's touch finally on the last issue, which is now FCC 1453 which Cara alluded to. In the end 23 this prohibits or impinges on the ability of City of Palo Alto to review additional growth at this 24 site unless there's a substantial change, which is greater than 20 feet in height or width, ok? This 25 is a growth inducing project therefore it should be reviewed by the City of Palo Alto on the basis 26 of reasonably foreseeable cumulative impacts of a possible cellular antenna farm on the project 27 site. And the reason ARB Chair Lippert voted against it is because he felt and these are quotes, 28 he foresees a federal city estoppel at the 65 foot limit whereby the City may need to cede all 29 local control of federal law that gives no local standing. He says look in the end we're not going 30 to get a definitive legal interpretation we must hope for the best, but plan for the worst. But this 31 let's keep in mind is a 20 to 25 year decision. 32 33 So next page on 18, bottom line is Verizon is building a monopole to serve as a platform for 34 attachment of much more equipment with no oversight. And let's not deceive ourselves around 35 the concealment element. Camouflaging paint if you read the comments as I have are 36 concealment elements. As long you keep the paint you're good to go with the height. The FCC 37 didn't clarify, could lead to disputes and in fact Verizon is asking us to approve three of seven or 38 eight components 42 percent which aren't needed at this time. And why is that? If we look at 39 the final page, Page 19 we can see that Verizon claims that the three antennas will meet the 40 coverage. Kreines does not believe this is possible to make the coverage that they're looking for. 41 This would make in order to hit that coverage perhaps a six antenna project. 42 43 So final seconds here what are the implications then of this applicant on FCC 14153? So you tell 44 me would another carrier's additional water heater size bulb placed on top of the existing tower 45 constitute a substantial change if it were stealthy? What about below? Or if Verizon just made 46 their bulb wider to accommodate all the equipment they really have needed and asked for in 47 every single prior application would this qualify? Maybe taller? And can they do this without 48 the City's approval now that 14153 is in place? So thank you, thank you for your attention. 49 6 1 Chair Michael: And thank you. This is a, this is a very thorough presentation. So help me 2 understand our procedure in terms of we have the applicant and also there are some questions 3 that presumably would be appropriate for staff to address. Who gets to speak next? Does the 4 applicant? Ok, I'd like... who is here from the applicant? Please identify yourself and 10, 10 5 minutes. 6 7 Charnel James, NSA Wireless, Inc.: Good evening, my name is Charnel James and I'm the 8 Senior Planner from NSA Wireless. And I've been the planner that is been working on this 9 project since its inception five years ago. With me today I have Paul Albritton who also 10 represents Verizon and Chris Durand who is the co-owner of NSA and Brian who is our RF 11 Engineer for Verizon to answer any questions that you might have. I'm just going to cover 12 something real quickly and then I'm going to hand the time over to Paul, but I wanted to give 13 you some clarification because you've been given some information that's not accurate. 14 15 First of all the site plan for our project is one in which we have worked very hard with the City, 16 with the neighbors, and trying to address all of the concerns as well as with the property owner 17 so that we could have a design that works not only within the community itself, but also works to 18 accomplish what our needs are, which are to provide coverage in an area that's lacking coverage. 19 To that end after multiple attempts at coming up with a design we worked with the City and 20 came up with this final one, which is the smallest footprint that we could possibly use in order to 21 meet our coverage objectives. To that end we have included just adding a five foot extension on 22 an existing 60 foot light pole. The light pole will be replaced with a six inch in diameter larger 23 pole. 24 25 So I wanted you guys to have some perspective as to what it is that we're really asking for. The 26 pole is already there. It's already existing. What we're putting on is a five foot radome on top 27 and making the pole a little bit fatter to handle all of our cabling so that it's completely stealth 28 from view from the neighborhood. The location of where we've placed this is as far away from 29 the properties as that are concerned as we could get it. We're over 300 feet away from the 30 property line for the pole itself that we'll be replacing and about 250 feet from the enclosure. 31 This is over almost 400 feet away from the nearest house. 32 33 The placement was designed specifically to blend in with the natural environment that surrounds 34 the baseball field and to work in conjunction with what the baseball field has in place. The 35 design elements we used a local architect design that the City Council has used, the ARB has 36 used before, and he's been before your committee as well to help us make sure that we had the 37 design elements that blend in the best method with the area that's located there. That includes 38 matching the existing storage sheds that are out there, which are not buildings, they are accessory 39 uses and using materials like replacing the existing roof so that all the roofs match and putting 40 grading in to allow ventilation into the system to reduce noise components like air conditioning 41 units. 42 43 As you can see from the 3-D rendering what we're trying to do is blend in specifically what is 44 already on the property in order to have the best visual impact that we can. I also want you to 45 keep in mind that we have been working on this project for over five years. We have looked at 46 various locations around this area in order to either colocate or to develop in order to meet 47 Verizon's needs including colocating on a T -Mobile tree pole two properties over, which is 65 48 feet tall. That had a lack of parking so we wouldn't be able to take up anymore ground space to 49 put our equipment. We've had various applications and designs on the park itself. We looked at 7 1 the Fire Station, which was also lacking in ground space, nearby churches, and the Mitchell 2 substation and power. So this isn't a random thing that we've gone about. We've worked really 3 hard on making sure that we have the best thing. We did receive the ARB's blessing after 4 working with them and taking a lot of their input that they provided to us to integrate and to 5 make sure that we truly reflected what the community was asking us to do. And with that I'm 6 going to turn over the rest of our time over to Paul Albritton. Thank you. 7 8 Paul Albritton, Mackenzie & Albritton: Good evening Chair Michael and Members of the 9 Commission, Paul Albritton, outside counsel for Verizon Wireless. Thank you for your time this 10 evening. I want to cover three quick points if I can. One is your scope of review, which we 11 talked about the two findings. I want to talk about federal law briefly how it affects your 12 decision and if we have time we'll get to some of the hearing requestor's arguments and if not 13 maybe I can answer those on questions. 14 15 So the scope of review you have two findings and they were put up on the board for you. And I 16 want you to bear them in mind and it truly is whether this facility, this extension of the light 17 standard is detrimental or injurious to the improvements and properties in the vicinity of where 18 it's going to be located. The second finding you're going to make is whether the site, the 19 extension of the wireless facility is located or conducted in a manner that's in accordance with 20 the Comprehensive Plan. Now we believe that the staff has reviewed this, the information 21 provided by Verizon Wireless. Verizon Wireless has provided you with ample evidence to show 22 that we meet those findings including photo simulations and I'll, we'll be referring to a packet 23 that I provided to all of you so that the code is met, the Comprehensive Plan the staff shows 14 24 elements and goals of the Comprehensive Plan that are met by the project and that those findings 25 can be made. Now in contrast notwithstanding all of the information and all the issues that have 26 been raised by Mr. Yotopoulos none of it is evidence or facts that could cause you to find to the 27 contrary on those findings. And I think you need to focus on that. 28 29 Now why am I focusing on substantial evidence? Well I'll jump into the federal law. And the 30 federal law says that in order to deny a wireless facility a local jurisdiction has to have 31 substantial evidence authorized by local regulation to make findings to deny the site. And we 32 don't think any of the information as its provided has provided the kind of evidence you would 33 need to overcome the tentative approval of the Planning Director and the approval of the ARB 34 and suggest that this tower in some way or this facility is in some way injurious to neighboring 35 properties in the way that would allow denial of the CUP. And the federal law says that 36 substantial evidence can't be generalized objections. It has to be specific facts. What are the 37 facts that would suggest that this is somehow can't be a use that is allowed in this location? Is it 38 over the height limit? Does it violate setbacks or does it block a primary view? And none of 39 those issues really I think have been presented by the hearing requestor. 40 41 Second point on federal law you heard you can't deny a facility based on environmental effects 42 of RF emissions. I just want you to know that that's been extended to issues beyond mere denial 43 based on RF emissions to proxies and in essence property values. Federal cases have said that 44 decisions that suggest that facilities create a depreciation in property values that are based on this 45 fear of RF emissions are just as prohibited by the federal law as a denial based on RF emissions. 46 47 And the last issue I want to touch on is prohibition of service. The federal law says that local 48 jurisdictions can't deny a site if it's going to cause a ban on service or a prohibition of service 49 and you've probably noticed in our packet in addition to the RF statement by Hamonez that 8 1 shows the facility will be 200 times below the emissions that are allowed by the federal 2 government we included a statement by our RF Engineer Brian Ung who's here tonight who 3 shows that the facility that already in this area of Palo Alto there's a lack of capacity in Verizon 4 Wireless' facility and a coverage gap that covers about two miles, 15,000 residents, 40,000 5 vehicle trips every day. This is a needed facility. We've identified a significant gap in coverage 6 and capacity. 7 8 The next item in our packet is an alternatives analysis where we carefully go through the 9 methodology of how we came up with the site we're located on looking for the least intrusive 10 means based on your code, based on your Comprehensive Plan, first looking at colocation 11 facilities and finding they're not available and then finding a structure that we can replace an 12 existing structure and provide a stealth facility, a hidden facility within this, within the radome, 13 the five foot radome that we're proposing. Once we've established that there's a significant gap 14 and this is the least intrusive means of filling that gap the federal law essentially compels 15 approval of the project and that's why we included that information in this packet, but the project 16 I think the additional item that we put into the packet are the 266 text messages and e -mails from 17 local residents who support the facility and want the facility and feel that wireless service is 18 important and needs to be improved in their neighborhood. 19 20 I'll touch quickly in the remaining moments on some of the issues that have been raised, which 21 again we don't, we feel they're interesting perhaps, entertaining, but they don't provide facts or 22 the kinds of facts that you would be required to or findings that would support findings to deny 23 this facility that it's injurious or detrimental to neighboring properties or to the public. This is 24 the largest tower in a residential zone. Well guess what? The Palo Alto Municipal Code allows 25 wireless facilities in residential zones with a CUP and architectural review up to 65 feet. So yes, 26 65 feet is the highest and so this amongst other facilities is the largest, but that's what the code 27 provides for and we're 5 feet above the existing light standard. The selection of the standard, the 28 color of the standard, the location of the standard all designed to minimize impacts to the 29 community. 30 31 For the first time tonight project, the opponent or the requestor raises CEQA. And this clearly 32 qualifies for an exemption under CEQA. 99 percent of wireless facilities in the State of 33 California qualify as categorically exempt under CEQA. CEQA Category 3, Class 3 exemption 34 includes residences up to 2,500 square feet or commercial facilities up to 10,000 square feet. 35 The kind of CEQA of course is a procedural ordinance that's supposed to provide you with 36 information of the environmental impacts of a project so that you can make a decision, a 37 knowledgeable decision and this type of facility it has limited impacts clearly qualifies as a 38 categorically exempt under CEQA and I can elaborate on that further. 39 40 There was quite a bit of discussion about Section 6409 of the Tax Relief Act and the recent 41 Spectrum Act Order that was released by the FCC. Essentially the 6409 left in question whether 42 modifications could be made by wireless companies to an existing facility with limited review by 43 local jurisdiction. There was great hue and cry by cities and counties about what about our 44 stealth facilities? You can't tell us you can just go in and modify a stealth facility without taking 45 into account the stealth, stealthing. And so the FCC came back in this order that came out in 46 October saying that you cannot modify a facility, you can, but you have to get a CUP, but you 47 can't have an administrative review of a colocation or a modification of facility that will defeat 48 the concealing elements of the existing facility. And we feel that that's anything that would 49 modify the radome or the design of this particular structure. 9 1 2 There are many other issues raised by the project opponent, which I can discuss further. I guess 3 I'll close by saying there is no violation of the current CUP for the ballpark. There's no notice of 4 violation, there's no action taken by City with respect to all the issues that are being raised. The 5 proposal itself will add 14 inch visors onto the lights that are currently existing on the light 6 standard and should improve the reduction of glare from that light. I keep waiting for that buzzer 7 to go off. There were several, several other issues raised by (interrupted) 8 9 Chair Michael: If you would briefly wrap up then? 10 11 Mr. Albritton: Yeah, the hearing requestor and I can address those, but the majority of them as I 12 said don't rise to the level of evidence for denial of the facility. Thank you so much for your 13 time and we're here to answer any of your questions. 14 15 Chair Michael: And thank you. So remind me this is not a procedure that we undertake 16 normally. Do we give rebuttal to the requestor or what's our? 17 18 Ms. Silver: Yes, I would recommend that you hear the public testimony now and then give 19 rebuttal time to both the requestor and the applicant. 20 21 Chair Michael: Ok, we will do that. I want to make sure that all the issues are covered fully and 22 fairly. So let's open the public hearing and Acting Vice -Chair Tanaka will announce the 23 speakers and you will each have three minutes. Thank you very much. 24 25 Acting Vice -Chair Tanaka: So tonight we have quite a few speakers. So what we're going to do 26 is I'm going to call a name and the person that's following afterward. So if the person that is 27 following afterwards can move up towards the podium we could do this a little bit quicker. So 28 the first speaker is going to be Ken Allen followed by Joe Caporaletti. 29 30 Ken Allen: Good evening Commissioners, my name is Ken Allen. I'm the President of the 31 Adobe Meadow Neighborhood Association. I live on Grove Avenue, which is in the region 32 covered by the initial notice. I'm here to speak for the Adobe Meadow Neighborhood 33 Association Board. We conducted what we believed was a very objective survey. You have 34 results of that survey in front of you, 4 pages to add to the 417 pages that I'm sure you've all 35 read. I certainly did. Now this survey did not produce the smoke and mirrors that our opponents 36 did. We invited them to answer do they want a cell tower at this site or not. The results as you 37 see show that 83 respondents of the 137 said we unconditionally support the placement of a 38 tower on this location at this time. There were 17 opponents. I'll grant that there may be three 39 more because Jason did not respond to the survey, his wife did. 40 41 So what I'm here to say is that Jason's views do not represent those of the majority of the 42 neighborhood. Our neighborhood actually is not in the target area. We're slightly out of the 43 target area; we actually have some Verizon coverage except for the problem has been identified, 44 which is the lack of potential growth in capacity. That's going to be a serious issue because 45 capacity demand is growing by 81 percent a year. So this facility is long overdue. 46 47 You will note that the comments from the residents on the results of this survey strongly support 48 approval of this as quickly as possible because they would like to see the services improved. 49 One of the surprising results was that there is a very limited range of the other antenna facilities 10 1 in the area limited to perhaps 1,000 feet radius for both the Sprint tower and the DAS tower, 2 which are adjacent our neighborhoods, but it all of what we've done here is confirm the Verizon 3 analysis. There is a need to improve service, to approve this antenna site and I want to remind 4 you that there is an emerging need for such things. This is a no brainer. This is a stealth design 5 and if I had my way I'd paint that radome to look like a little league baseball. Thank you very 6 much. 7 8 Acting Vice -Chair Tanaka: Thank you and the next speaker is Joe Caporaletti followed, followed 9 by Frank Ingle. 10 11 Joe Caporaletti: Thank you Commissioners. Well, I'm the Adobe Meadow Neighborhood 12 Association Communications Officer and I've watched this communique, well I'll say 13 information exchange, I'm not sure sometimes how much communication actually occurs. The 14 communications have gone on for years and as I've watched this one thing really finally 15 convinced me I really need to come up and speak and there were a couple things. And one was 16 I've seen my neighbors standing outside literally with an umbrella in one hand and a cell phone 17 in another hand standing in the street. And that's the only way sometimes that they can get 18 coverage and a half a block away from their house. The, the other thing that finally convinced 19 me was seeing a teenage girl literally and she is I believe in the area that would be covered by 20 this antenna sitting on an island in the middle of the street after sunset because that's where she 21 could get cell phone coverage. It's really atrocious and it really is needed. And especially the 22 safety sense of that really gets me, especially standing in the street to do it. 23 24 My neighbor Cici Cuttendorf who is a previous President of the Neighborhood Association and 25 one of the most, honestly she's one of the most caring and involved people I know and she wrote 26 this letter. She couldn't be here today because she's working a 12 hour shift as a nurse at 27 Stanford and she said she would like me to read this letter to you. Dear Members of the Planning 28 Commission, Reliable cell phone service is basic to community safety. As a Stanford nurse I can 29 attest to the countless lives which have been saved by access to cell phones. In open patient 30 charts I, I open patient charts to read that patients under, use their cell phones to muster help 31 when having symptoms of stroke, heart attack, anaphylaxis, diabetic stress, and many other 32 medical emergencies. Why then is there any foot dragging about providing reliable service to 33 South Palo Alto? We live in the heart of Silicon Valley. Shouldn't Palo Alto be embarrassed by 34 the sporadic unreliable cell phone service we now have? Shouldn't our community in the 35 shadow of Stanford University have state of the art communication access? 36 37 For far too long a small but vocal group of less than 15 adults, well maybe a little more, in 38 opposition has managed to stymie the construction of and diminish the design of a cell phone 39 tower that will benefit hundreds of households. Do those in opposition realize they already live 40 in close proximity to cell towers? What a shame that the welfare of our neighborhood is 41 compromised by proponents of bogus science. I ask you to please be guided by the countless 42 experts with true expertise and training and experience in this field many of whom life in the 43 community served. I ask you to approve and build a cell tower without further delay. Do it for 44 the welfare and safety of the greater community. Cici Cuttendorf. Thank you very much. 45 46 Acting Vice -Chair Tanaka: Thank you. The next speaker is Frank Ingle followed by Gerald 47 Lucha. 48 11 1 Frank Ingle: Shelly Lee has volunteered her time if I might use six minutes if that's satisfactory 2 to you? 3 4 Chair Michael: So we have a protocol if you have members of your group with five or more then 5 you can combine time, but how much time do you actually need? 6 7 Mr. Ingle: I can do it in three minutes; I can do a better job in six. What would you like? Why 8 don't I get started and at three you can decide if you want to see more. 9 10 Chair Michael: So just take as much time as you need. 11 12 Mr. Ingle: And so I am Frank Ingle. Live in Midtown, Frank Ingle live in Midtown for 35 years, 13 Ph.D. in engineering and I'm a licensed professional engineer, but I'm not a firefighter and I 14 have great respect for the Fire Department. Part of the reason why I'm here though is that I 15 asked the same kind of question many times and I get many different answers. And the reason 16 actually comes down to document control or change control is the actual reason. And so if you 17 look at the, so this summarizes my presentation. The cell phone tower proposal was not ripe for 18 decision by the ARB and I'll go into the reasons why. No document change control at the City. 19 What was actually approved, one tower or two? Diesel or hydrogen fuel backup? Inside or 20 outside insulation? Roof or no roof? We didn't even get to the cocktail napkin stage of this 21 design before having to vote on it. For safety, what happened to the principle of choosing the 22 least hazard? Highly flammable compressed hydrogen close to a grove of trees, equipment 23 which is specified for industrial site only and it's not practical to refuel it at the site, and then the 24 Daily Post article, which you might have seen two weeks ago with this picture, right? Which, 25 which basically in which the Planning Commission there rejected an AT&T shack similar to the 26 design that you'll see here. 27 28 So starting with the particulars the City staff says resident frustration with lack of transparency in 29 the planning process. Staff is unable to substantiate what claims of a lack of transparency. And 30 so I have a really good example of that. The ARB approval has given the applicant the choice of 31 using hydrogen fuel cell or a diesel generator for backup power supply. That's from the staff 32 report, but I was at the ARB vote. The approved the Verizon plan by a 3-1 vote. After the vote 33 the Chairman said he would prefer the diesel be added as an option. This is his opinion and was 34 not voted on by the ARB and so I personally have a problem with that as a process. Compressed 35 hydrogen has to be the equipment they choose has to be refueled by a tank truck. That's what 36 the tank truck looks like on the left side and on the right side is what you do if it catches fire. Do 37 you really want that in the middle of the ballpark? It may be improbable, but the hazard is great. 38 39 Next I'm showing the tortuous access to the shack for refueling. A laser pointer won't work on 40 your wall, but if you look at the access which begins on the right side down at the bottom it's the 41 grey area, oh sorry I have the pointer... so if you look at this is the access easement road right 42 there and the idea is in order to refuel the tanks you'd have to drive the tank truck through the 43 easement and then you'd have to back it out again. And when I asked the fireperson about that 44 he said they do that all the time. And to me that does not pass the test of just looking at the map 45 and saying I don't believe it's possible. 46 47 Next is a picture of that corner showing where the trees are. This is from Google satellite view 48 and I drew that blue line there, which is between the light pole where the tower will be and the 49 power pole just to give you a line of reference. So the new Verizon shack would be kind of in 12 1 the right near the white area there. And if you look at that grove of trees my biggest fear about 2 this project is not about the RF, it's about the fire danger that if you start a ground fire in the 3 eucalyptus the prevailing wind is from the north, it'll burn right down that grove of trees for a 4 block or two. 5 6 This is what hydrogen fire looks like. Now this is an experiment in which they punctured the 7 tank of a hydrogen cylinder and showed that the flame goes upwards strongly. Now that's on 8 purpose so that if you're in the car next door you won't get scorched, but the idea would be if 9 you have a hydrogen fire it will be directed upwards and the fire flame is much larger than the 10 visible part. The hydrogen flame is largely invisible. 11 12 Next, equipment shed the shed on the latest drawings included in the packet for this meeting in 13 the lower left you can see proposed outdoor component layout. If you'll remember the pictures 14 that you were shown by Verizon it has a roof on it. Well, this is proposed an outdoor layout and 15 the particular equipment that they chose is specified by its manufacturer to be used outside and it 16 is also specified as a non-residential application. I called their technical services people to ask 17 what do you have for sale that can be used in a residential zone area and he said we have 18 nothing. And so all the safety equipment, all the safety information they have to provide to you 19 don't apply if you're not using it the way they specified it. Equipment shed if you look at the 20 shed it's right next to storage sheds with about two feet space between them. That is not the 21 separation space specified by the manufacturer of the fuel cell in its hydrogen fuel safety, I'm 22 sorry, fuel cells themselves. 23 24 And here's a picture of the Post from two weeks ago. AT&T shack voted down. If that looks 25 familiar it's because it is familiar. They are all designed sort of the same way. So this has no 26 roof on it and the neighbor voted it down because it was on private property, to be on private 27 property. They voted it down because it was too noisy and they were afraid of it. So my big 28 recommendation to this Commission is that you ought to contact the Belmont Planning 29 Commission and find out what are their rationale behind it and what are their thinking? It might 30 be useful to compare notes on this. 31 32 The staff report shows answers to citizen comments, but the comments do not necessarily make 33 sense. I'm nearing the end here. And this example was that alternate sites were proposed to 34 Verizon and the answer came back there are no other structure in close proximity to the Little 35 League ballpark that would provide enough height in the appropriate location to meet our 36 coverage needs. Laurel, Cubberley, Charleston Shopping Center, and Mitchell Library are not 37 tall enough. There are no fitting alternate sites. This part of town has very few tall buildings and 38 none are close by. Ok now this is an insult to the public because the ballpark site has no tall 39 buildings. There could be really good reasons why those other sites are not good, but it's just an 40 insult to respond to the public this way. 41 42 My recommendation? The proposal was not ripe for approval as it was submitted because the 43 document package wasn't one consistent document package. There was some from this, some 44 from that, and the design is changing in ways that make the approval not really be an approval. 45 So my recommendation is to return it to Verizon to resolve the problems then to the City to roll 46 up one document package, which is the defined design at that moment for you to vote on yes or 47 no. That's it from me. Thank you very much. 48 49 Acting Vice -Chair Tanaka: Thank you. The next speaker is Gerald Lucha. 13 1 2 Chair Michael: So I think staff wants to respond to some of the points (interrupted) 3 4 Mr. Reich: Chair Michael thank you, if I may I just want to (interrupted) 5 6 Chair Michael: So Russ go ahead. 7 8 Mr. Reich: I just wanted to let the Commission know Gordon Simpkinson is here if you have 9 questions related to the comments that were just made. 10 11 Chair Michael: And his position is? 12 13 Mr. Reich: With the Palo Alto Fire Department. 14 15 Chair Michael: Ok. 16 17 Gerald Lucha: I'll probably only need one minute. I'm Gerald Lucha. I'm the neighborhood 18 preparedness coordinator for the Adobe Meadow Neighborhood. And I almost didn't come 19 tonight because this thing's been going on so long and we keep responding with logic and factual 20 information and in my view practically the entire neighborhood is in favor of this and yet it's like 21 the Night of the Living Dead. You know the opponents rise up and they'll make this specious 22 argument, this specious argument, they're grasping at straws in my opinion. And so some of 23 these straws lightening is going to come down and hit the 65 foot tower where it wouldn't have 24 hit the 60 foot light towers that have been there for years. Some city in the year 2002 rejected a 25 cell tower application. What does that have to do with 2014 and in Palo Alto? Practically 26 nothing. The generators and the hydrogen thing they're objecting last time oh, we don't want 27 diesel generators they're smelly and we don't want the noise of a diesel generator even though it 28 was pointed out that they only go on for when there's an emergency. You're going to want a 29 diesel generator, you're not going to worry about noise you're going to be too busy keeping your 30 house intact or hiding under the bed or whatever. And but no, the diesel generators were too 31 noisy. 32 33 Every time there's been a complaint Verizon has bent over backwards it seems to me to change 34 the design to accommodate the complaints and now they've got it where it's hundreds of feet 35 across the ballpark away from Middlefield Road. It's good looking and but still that's not 36 enough to satisfy the opponent. I strongly recommend that you see through the chaff and 37 approve this application without any further ado. Thank you. 38 39 Acting Vice -Chair Tanaka: Thank you. So the next speaker is Willy Lai followed by Heather 40 Ambler. 41 42 Willy Lai: Good evening Members of the Commission. So my name is Willy Lai. I'm a resident 43 of Palo Alto, but I don't actually live across the street from the proposed site. I do however have 44 a number of objections regarding this location as an appropriate cell tower site, some already 45 mentioned. Being near a school site I'm concerned about some of the potential hazards, 46 hazardous materials. I don't agree that necessarily it's a majority is pro this cell tower if you 47 look at the audience today it seems like at least half if not more were, are here in opposition of 48 the cell tower and the fact that it's carried on for a number of years I think also is telling of what 49 the community feels about this cell tower installation. 14 1 2 I want to raise a few points for the Commission to consider not moving forward on this proposal 3 on the basis of a number of discrepancies that have been identified in the proposal as a result of a 4 number of procedural missteps that have been allowed to occur over the course of this proposal. 5 If you turn to the second page of the handout that I just provided I'll outline some of these 6 procedural missteps. First off the City's process has lacked any change control. And so what's 7 happened was instead of having a final design proposal approved and then having a notice of 8 completion, which is really to freeze the design what's ended up happening is it's kind of been 9 backwards. We've had a notice of completion which then has bene followed by allowing 10 Verizon to then keep changing that design. If you notice here there's been four changes from 11 February 27th, March 12th, April 2nd, August 19th, October 2nd there's been number of changes 12 that have happened after the fact that it was supposed to be frozen, right? And so since the 13 notice that's gone out to the neighbors because of all these changes what had been actually 14 approved isn't actually what the public is, has been informed. And what you're seeing is there's 15 a lot of old information that's showing up in the proposal; for example, this discrepancy in the 16 square footage. Is it 510 square feet or is this 442 square feet? There's also some 17 misinformation actually I think I have more than three minutes because I have a few speaker 18 cards that... 19 20 Chair Michael: No, could you just wrap it up in a minute or so? 21 22 Mr. Lai: Ok, I'll try to wrap it up quickly. But for example in the last ARB meeting the fire 23 consultant had claimed there's no hydrogen storage. That was based on older information when 24 in fact there actually was. There's been a number of examples of unrealistic specifications 25 saying this is outdoor only, not for residential use. There's been missing information in terms of 26 like I mentioned before unclear in terms of square footage, which includes a two foot strip 27 between the equipment building and three located containers. There's no information about 28 structural integrity that exists in the application. 29 30 I'm going to skip to the last page here and there's also or second to last, there's been a lot of 31 examples of misleading information. So what's referred to as a light pole is really a disguise for 32 a cell tower monopole and this really is a building not an enclosure. Verizon's outdoor 33 equipment layout is actually indoor. There's been a lot of erroneous information. Hazardous 34 materials like as mentioned listed with Fire Department were in error, EA form completed by 35 Verizon was in error, the evaluation of categorical exclusion identifies a bottom on the antenna at 36 57 feet whereas Verizon specifies 60.5 feet, shows three containers as BLD or buildings that 37 have been there a long time, which is clearly inaccurate, shows a proposed 10 foot wide 38 easement for it as it should only show what it exists. The conclusion here is that it's impossible 39 for City of Palo Alto to decide and citizens to understand a project with such profounding and 40 conflicting descriptions. City should have Verizon revise their application to be consistent to 41 describe the same project otherwise this is just too misleading for the public. Thank you. 42 43 Acting Vice -Chair Tanaka: So I saw that that and I didn't realize it till after the speaker started, 44 but Amber and Amy has ceded their time to Willy Lai. So next speaker then is Kim Amsbaugh 45 followed by Chris Melvin. 46 47 Chair Michael: So just to clarify in our PTC meeting protocols if we have a group of speakers, 48 five or more want to accumulate their time with one representative we'll often we can give them 49 at the discretion of the presiding the Chair between 5 and 10 minutes. But it's not just a matter 15 1 of ceding your time to somebody. So we appreciate the intent, but we're trying to make sure 2 everybody has a full and fair opportunity to be heard, so we'll just go with the next speaker. 3 4 Acting Vice -Chair Tanaka: That is Kim Amsbaugh. 5 6 Kim Amsbaugh: Ok, thank you for the opportunity to speak. My name is Kim Amsbaugh I'm a 7 member of the Palo Alto Little League Board. This is the third meeting I've been to over the last 8 few months, the Historic Resources Board (HRB), ARB, and now this meeting. And really 9 honestly I continue to be shocked and amazed at how misguided the opposition is to this project. 10 They're focused solely on misrepresenting the facts and creating fear, uncertainty, and doubt 11 with the public and the City when it comes to this project. They continue to describe the project 12 as a 65 foot cell tower. It's not. It's a 60 foot light tower. There's light bulbs on it. It lights our 13 field so our players can play at night. It's the same height that exists today. All that's being 14 done is adding a five foot cellular antenna on top of an already existing light pole. 15 16 They showed the public doctored misleading photos of what the cellular antenna will look like 17 and share fiery pictures of what might happen if lightening should strike or a fire should be 18 caused, something that's never happened on the field. They blast us and Verizon for having too 19 many project plans when it's because we are trying to work with them and listen to their 20 concerns. That's why the plans have changed several times. As for fear, uncertainty, and doubt 21 they continue to make unsubstantiated claims about the health risks of wireless radiation of a 22 cellular device on a site when resident's live across an electrical substation and across from the 23 Fire Station, which houses a wireless antenna from another carrier. They make false claims that 24 we're in violation of City use permits. 25 26 What I've learned participating in these public hearings over the last several months and the last 27 four years, that's as long as I've been on the Board, is that this group, this opposition is has no 28 desire to work with us or Verizon to create a project that we all can rally around and be happy 29 with. Instead they have a close minded no cell tower ever mentality focused solely on 30 stonewalling and causing roadblocks to this project at every turn. Yet Verizon and the Little 31 League Board continues to be extremely patient working tirelessly to try and work with 32 neighbors to create a beneficial cell site that meets the needs of this community, is the least 33 intrusive, benefits Palo Alto, and also benefits Palo Alto Little League. 34 35 Verizon has proven and identified a need for improved wireless service in this area of Palo Alto. 36 The neighborhood through their association survey has said they approve of the facility as 37 President Ken Allen stated. We strongly encourage you to follow the recommendations of 38 Planning Division staff, the ARB, and the tentative approval of the Director to approve this 39 proposed project finally. 40 41 Acting Vice -Chair Tanaka: Thank you. The next speaker is Chris Melvin followed by Francesco 42 Poggesi. 43 44 Chris Melvin: Hi, I'm... Hi, my name's Chris Melvin. I'm also a member of the Little League 45 Board. I'm a lifelong resident of Palo Alto. I no longer live in the neighborhood, but my parents 46 still do. And as a member of the Board who joined after this project was underway I was 47 obviously curious as to how it got to this point. I think that Ms. Amsbaugh described how we 48 got to this point very well, but I think the most important thing that I can say and I'll be done 49 very quickly is my father still lives in the neighborhood. He is a Verizon customer and should 16 1 there be an emergency I would be very happy if there were coverage available for him whether 2 it's on this site or another one, but given that we're so close on this site and this site fits so well 3 with the needs of Verizon and the community I think that we haven't heard anything to make 4 you vote against it. That's all I got. Thank you. 5 6 Acting Vice -Chair Tanaka: The next speaker is Francesco Poggesi followed by Mark Priestley. 7 8 Francesco Poggesi: Hello, I'd like to thank the Council as well as the other speakers, many of 9 whom I recognize as neighbors. My name is Francesco Poggesi. I'm a resident in the 10 neighborhood. The City is in the midst of conducting its Comprehensive Wireless Plan and this 11 has been going on since April to decide the appropriate siting for towers and potential colocation. 12 These are permanent and important City infrastructure decisions where the City will establish 13 guidelines and then make decisions based on those guidelines. This is outside of that process I 14 suppose. 15 16 We know that nonprofits have been picked off up and down this neighborhood and this region 17 with cell phone tower applications and this inflames our neighborhood. Many people don't talk 18 to each other now because of this. Additionally, Verizon has been filing and has recently refiled 19 this application. I've been told in order to set up some sort of FCC shot clock that would affect a 20 federal response or legal action on behalf or against the City if it does not approve this proposal. 21 Verizon hasn't made or I feel Verizon hasn't made a reasonable effort to exhaust the other 22 options in the neighborhood or in the region. At 65 feet the coverage could span for miles. We 23 saw a presentation listing many sites in the neighborhood, actually in a two or three block radius 24 around there. There are other 60 foot tower sites that could be chosen and saying that we need to 25 be a block or two away seems insufficient. I'd like to thank the Council for their time and 26 consideration. 27 28 Acting Vice -Chair Tanaka: Thank you. The next speaker is Mark Priestley followed by our last 29 speaker, which is Helen Li. 30 31 Mark Priestley: Hi, Mark Priestley, I'm a Secretary for Palo Alto Little League. I've been the 32 member of the Board who's worked with Verizon since the beginning on this project so it's been 33 five years. And as you can imagine a youth volunteer organization, which is what our League is 34 I'm probably the oldest resident member of the Board. But when we went into this project we 35 wanted to be good neighbors. All the people who are volunteers in Palo Alto Little League and 36 we represent over 1,000 kids and the families of those 1,000 kids. We solicited their feedback 37 whether they were supportive of the project before we started. Verizon initially came to us 38 because of the very issues they raised. They couldn't find coverage in any other place and they 39 really wanted to increase their capacity in our site. So based upon a community need we decided 40 to go forward. We also benefit as a nonprofit because they're going to lease the land and provide 41 us money. So it's a benefit to the League and the kids because it helps us deal with an aging 42 infrastructure of an old facility. As they've said this facility has been in place for 62 years. All 43 the neighbors who live across the street know it's a baseball field and they've known it since 44 they bought their houses. Nobody's been there for 62 years. 45 46 In trying to be a good neighbor we've gone through as has been explained by Paul four different 47 revisions, so each of those revisions has been at the request of the neighbors. We tried very, very 48 hard to be good neighbors. We've tried to respond to their needs and in each case they complain 49 about lack of transparency after a new proposal is put forward. I believe this is all clutter and 17 1 reasons to dely. After five years of working with them I believe they want to postpone this 2 position as far as possible with the hope that they can delay it forever and frustrate Verizon into 3 giving up. 4 5 I really encourage you to cut through the clutter and realize we really need a decision from you 6 tonight so that we can move forward. I know they're going to appeal it to the City Council. 7 They've told me after we put together our final proposal in February, which is our best proposal 8 we could do, smallest footprint, they've told me they're going to appeal it to the end and they 9 probably will sue us afterwards. But we believe this is the benefit of the City and we hope you 10 are clear minded and understand this is for the benefit of the City and most of the residents and 11 that you vote yes. 12 13 Acting Vice -Chair Tanaka: Our last speaker tonight is Helen Li. Helen has declined to speak, so 14 I think that's all the speaker cards we have. 15 16 Chair Michael: So Russ you indicated that we have a representative of the City Fire Department? 17 I wonder if we could recognize you for the purpose of educating us about your analysis of the 18 proposal? 19 20 Gordon Simpkinson, Consultant: Thank you Mr. Chairman, Members of the Commission, my 21 name is Gordon Simpkinson. I was Fire Marshall here for about five years. I've worked with 22 the City of Palo Alto for 18 years; currently retained as a consultant especially dealing with land 23 use issues as they effect fire protection and hazardous materials in the City. 24 25 So this project was reviewed by us at each of the stages where it was developed. Currently the 26 questions regarding the safety of the hydrogen fuel cell typically what we do at the planning 27 stages is we determine whether the quantity of the hazardous materials is in violation of any of 28 the Municipal Code sections and whether it's feasible given the design to meet the building 29 codes. So the design as it currently exists lacks the engineering details to, to be considered a 30 complete building department submittal, but we have looked at it from the standpoint of being 31 complete enough that we know that the current building configuration is compatible with the 32 engineering that will be added to create a safe hydrogen fuel cell installation. 33 34 Chair Michael: Just a follow up question, I think there were some other questions raised about 35 potential hazards associated with the refueling operation and the movement of the truck in and 36 out of the site. Did you look at that at all? 37 38 Mr. Simpkinson: yes we did. The layout of the parking lot is wide enough that a truck entering 39 the facility and taking the path of travel that was shown at the vicinity of the building would have 40 enough room to make a three point turn to reverse and reverse for a limited distance and then 41 drive forward back out of the property. So these are not huge semi -trailers that we're talking 42 about that would be making delivery and also it should be noted that the frequency of delivery is 43 going to be less than once per year would be my understanding is it's a very infrequent and 44 Verizon will be required to submit a handling report if the option that they choose involves 45 delivery of hazardous materials they're going to have to provide site control details that would 46 include scheduling deliveries when there's no other use of the parking lot so they would have no 47 obstructions to access to the site and being able to safely deliver the commodity and make egress 48 from the property with their vehicles. 49 18 1 Chair Michael: And I realize this is not the current proposal that now is reflected in the 2 Director's tentative approval, but did you have occasion to analyze any hazard that would be 3 associated with the use of diesel rather than hydrogen if that were the proposal? 4 5 Mr. Simpkinson: The use of diesel is much more conventional so the deliveries of fuel would be 6 slightly more frequently. The fuel itself is less volatile so it's a little bit more straightforward in 7 terms of handling. So there's nothing that would alter the complexion of the project in terms of 8 anything other than a slight increase in noise, which most likely would be barely noticeable at 9 the distances that are from the property line, but we typically don't get involved in the analysis of 10 noise. We just look at the hazardous materials aspects of it and there's nothing that we see that 11 would be preventative in terms of prohibiting the use of diesel onsite either. 12 13 Chair Michael: Thank you very much. You can be excused for now. Let me just direct some 14 questions to staff that I think will be questions that we all would have. And this would be two 15 areas and you can take them however it makes the most sense. One is there's been some 16 question as to the CEQA exemption and we've had the assertion that it's a problem and the 17 assertion that it's not. What's the City's position on that? And then the other line of questioning 18 that was opened up was although we're looking at a CUP application for the cell tower there was 19 a question of whether there was something in the, the existing CUP for the ball field as amended 20 over a long period of time that is m any way relevant to the CUP for the cell tower? 21 22 Mr. Lait: So Chair we're happy to answer those questions. I did want to check back with you 23 about your protocols and see if you wanted to first hear rebuttal testimony from the hearing 24 requestor and then actually I would do it from the applicant first and then the hearing requestor 25 second and then if you want to close the public hearing we can certainly answer those questions 26 or you can leave the public hearing open too that's an option. 27 28 Chair Michael: You know I'm flexible. I was curious to go with the CEQA and the CUP 29 noncompliance issues first and then get to the rebuttal and so if you want to go ahead and do 30 that? 31 32 Ms. Silver: So I'll take the CEQA issue and Amy can help with the CUP issue. With respect to 33 CEQA as I think was stated in by the applicant it's very common to use the existing facility or 34 minor expansion of an existing facility exception. This is really just the placement of a shed, a 35 very small shed and a light pole. And so that clearly qualifies under CEQA exemption. When 36 you apply CEQA exemptions there is another layer of analysis which requires you to examine 37 whether there are unusual circumstances that would warrant the further environmental analysis 38 and in this case I think that the opponent is stating that the existence of hazardous materials 39 would warrant that. And we looked at that issue and again it just the level of hazardous materials 40 is in line with Fire Department regulations and other types of hazardous materials that you see 41 with respect to these types of small facilities and so we think that a CEQA exemption in this case 42 is entirely appropriate. 43 44 Chair Michael: So just to clarify sort of procedurally I'm not sure that the Commission is 45 equipped or qualified to handle sort of a definitive ruling on the applying CEQA to this. If this 46 issue is raised when and if the matter goes to Council or even in subsequent litigation and 47 presumably that would be the place where this would be resolved, but not, not tonight. Is that 48 your understanding? 49 19 1 Ms. Silver: Yeah, so typically the Council is in this case will be the final decision maker and so 2 the Council will need to take a look at staffs analysis and determine whether the exemption is 3 appropriate. It is also proper for if this Commission would like to weigh in on that analysis 4 you're free to do that as well. 5 6 Chair Michael: Ok. How about the CUP compliance questions with respect to the ball field? 7 8 Mr. Reich: So there have been many attacks on the CUP compliance and the code requires that 9 for a monopole that we process a CUP to allow that use in the R-1 zone and that's what we've 10 done. It's pretty simple that this is a proposal for a monopole and it requires a CUP and that's 11 what we're doing. The City doesn't find any issues with the existing use of the ballpark that 12 would call into question the existing use permit. There have been several approvals over the 13 years including the approval in 2008 for the addition of the lighting. So we don't feel, that was 14 done through a variance and CUP application so we don't see any issue with the compliance with 15 the existing CUP. 16 17 Chair Michael: Ok. Good. So now I guess we're going to go back to the hearing requestor and... 18 19 Mr. Lait: I mean I would do the applicant first, but I don't know if Cara has a different 20 perspective on that. 21 22 Chair Michael: Ok, so we'll go to the applicant and give you how much time? How much time 23 do you need? 24 25 Mr. Albritton: Oh, dear. Three minutes maybe? 26 27 Chair Michael: I'll give you five. I'll give everybody five minutes. 28 29 Mr. Albritton: Very good and I'm happy to answer any questions you may have. But I think 30 from all the information that you've heard you need to really ask yourself is this proposed use, 31 this addition of five feet on the existing light standard located and conducted in accordance with 32 the code and the Comprehensive Plan? And the staff is telling you yes, it's in compliance with 33 the code and yes, there are 14 Comprehensive Plan rules, goals that are and policies that are 34 fulfilled by this project including improved communications. And you have to ask yourself 35 again your second finding is this proposed use the five foot extension of a light standard 36 detrimental or injurious to the improvements in the vicinity or parcels, properties in the vicinity 37 and I think clearly it is not and that you can make the finding necessary for this CUP. And 38 there's no evidence, we haven't seen any evidence really that would allow that would suggest 39 that you can make the opposite findings from our perspective. 40 41 It is an existing light standard that will be replaced as you know. It's taken many iterations and 42 many years to come to this solution, which is really an ideal solution for a wireless facility to 43 serve a residential area. It's in a residential parcel that is being used in a nonresidential use. The 44 nearest home is 400 feet away from this facility unlike the Belmont facility that was described. 45 It's the ARB gave us tremendous design concepts. We went back to a local architectural 46 professional, Kyu Kim, who came back and gave us a redesign of our shelter to make it look as 47 though as it's always been there as he says and put siding on it and we're going to replace the 48 shingles on all of the small structures there so that they match. The pole itself will be an acid 49 wash stainless steel to match the stainless steel of the existing light standards. There's been a 20 1 tremendous amount of thought and design that's been put into this facility to make it a stealth 2 facility and really an ideal way to provide this very important wireless service to a community. 3 And frankly it's difficult to put facilities that serve the public somewhere where they don't 4 offend the immediate neighbors whether it's a light standard in the sidewalk or a stop sign, it 5 always affects the people immediately adjacent to it, but it's important public infrastructure and 6 we've gone out of our way to come up with something that will blend into the existing 7 environment. 8 9 I do want to touch on a couple of the points. The trees were raised. The eucalyptus trees that are 10 adjacent and actually are a backdrop that prevent any western views of the pole the eucalyptus 11 trees there the City Arborist suggested that Verizon Wireless step up and agree to prune those 12 and extend what he expects to be a 50 year life and to have a condition of approval that requires 13 us to continue to do that to maintain those trees. There's also a condition of approval if those 14 trees fail that Verizon Wireless will put in pine trees that will grow up and provide further 15 concealment. So the trees, the canopy we also have to maintain the canopy a distance away from 16 the radome, which why by the way if it's struck by lightning has a lightning rod that carries the 17 lightening energy down to grounding rods in the earth so it's going to be extremely safe even if it 18 were hit by lightning. 19 20 There was a discussion about change in plans and yes, absolutely we changed the plans. We 21 changed them the way the ARB asked us to do it. We changed them to comply with a local 22 architectural professional's design and the final square footage, which is 490 feet. So what? 23 That's what you do. The suggestion that somehow the CUP needs to be modified for the current 24 ballpark or that there's some notice of completion that cuts off plans so that they remain 25 consistent I'm sure in your experience on the Planning Commission you'll find that you exactly 26 want an applicant that's going to assist you to blend a facility into the environment and it has to 27 allow for that kind of back and forth. These are zoning plans. Subsequent to the completion of 28 zoning plans Verizon will go through a six or eight week building permit process which will deal 29 with some of these technical issues that are going to be described and it will be reviewed by your 30 Building Department and your Fire Department. 31 32 There were several, there were issues related to the shot clock and I want you to know Verizon 33 Wireless has voluntarily extended the federal time period for approval of this facility to allow 34 this meeting tonight and to allow the City Council to hear this. The deadline for the City to act 35 passed months ago and Verizon Wireless has been involved in what we feel is a very transparent 36 process with four community meetings, three public meetings, and City Council meetings going 37 forward. The suggestion that there's been a lack of due process is from our perspective is absurd 38 frankly. 39 40 There were other issues raised by the hearing requestor. I'll let you ask if they're important to 41 you, but we feel that the information that Verizon Wireless has provided fully supports the 42 findings that you have been that you are required to make tonight and to confirm the approval by 43 the Planning Director and the ARB. Thank you. 44 45 Chair Michael: Thank you and Jason? 46 47 Mr. Yotopoulos: So I must say the presumption that the federal law compels approval at this 48 Board it irks me actually. It also irks me and the neighbors that they pulled their applications 49 when they found out Palo Alto was embarking on a Comprehensive Wireless Plan specifically to 21 1 trigger the shot clock such that you would make it through prior. That also irks me. Indeed 2 you've seen examples in the package of where you can deny such an application through 3 substantial documentation and this is the group that determines what we do as a City with our 4 planning. 5 6 I'm having quite a bit of cognitive dissonance right now because are, is this a light pole or is it a 7 cellular monopole? And I think that's a pretty interesting discussion to have because I think it 8 matters. And on the one hand Russ says it's a monopole in light of the CUP, but when our City 9 Attorney replies she says well, from a CEQA perspective it's just a small shed and a light pole, 10 right? Instead of a monopole. So we really need to figure out what this is. I'll tell you that 11 when it comes to hazardous materials and CEQA it's not the number of gallons. One needs to 12 contemplate the context. Where are these gallons, right? You need to take a look at is this a 13 building that is surrounded by a fence or not? Is there a two foot space between that and the next 14 building, right? 15 16 I'm sorry I can't think of a worse place to have a cell tower and this place would be shut down. 17 The ballpark that we love has been in existence since 1952 will be shut down overnight if 18 anybody were hurt. I see kids climbing on those structures all the time, ok? And now we're not 19 going to put a fence around it and we're going to use a high pressure hydrogen which burns 20 invisibly, c'mon. I'm sorry. It's unacceptable and I don't mean to get worked up, but the 21 obfuscation is a little irritating at some point. 22 23 I'll have you know that the lighting CUP, which never should have been issued in 2008, which 24 was prohibited by the underlying Use Permit (UP) of this property in 1952 was issued by one of 25 the members sitting at the table who acknowledged in the first ARB meeting that they had no 26 knowledge of a prior CUP. That is also unacceptable, right? And so the law says when you 27 have an increase in real estate footprint, right, in this particular case of square footage you have 28 to review everything that you had previously and how we can take such an impaired location and 29 not insist that the violations be cured before laying on another CUP I don't get it. 30 31 So I'll be brief, to allow such significant noncompliance over decades to go unresponded to all 32 the way down to the lighting that we're talking about here would be unconscionable to me. 33 These are, this is ground zero for our children. This is industrial hazardous material however if 34 we want to put the lipstick on the pig this is an attractive nuisance the structure. There's no 35 fencing, there's high pressure hydrogen, ok? There in terms of compliance with how it fits into 36 the residential neighborhood this is a 24 by 7, 365 day a year truck roll easements, right? 37 Hazardous material visual blight and noise. So let me give you an extent of visual blight and I'll 38 tell you about the specific code that it violates. You can see this from the second floor of 39 Mitchell Library, you can see if from East Meadow, you can see if from the Covenant 40 Community Childcare facility and playground, which is 12 feet away. The tower itself is two 41 feet from the field and 10 feet from the kid's warm up area, ok? And you can certainly see it 42 from all the, all the windows right across the street. So this is not about wireless coverage. They 43 City will, the City will make that happen with their Wireless Comprehensive Plan. This is about 44 where, ok? 45 46 And in order to specifically respond to some of the comments this is, this is not this is a totally 47 different pole. It's not the same pole. Current pole is 12 inch base, 6 feet 6 inches at the top. 48 This is 18 inch wide straight up, right, with a bulb on top. The visual massing is at least two 49 times if you think carefully about it. It's a new function and first we need to bring this thing 22 1 compliance, compliant. There are 14 elements to find that it's in accordance with the 2 comprehensive plan so it's not quite as simplistic as Verizon's lawyer would characterize and it 3 does definitely change the character of our neighborhood. And that is the issue and probably 4 changes the land use. So you have to look at what is the site, again the context. Some sites are 5 simply not appropriate for industrial cell towers. Simpkinson got up I can tell you at the last 6 ARB meeting he said there's no hydrogen, there's no high pressure hydrogen storage on this site. 7 There was a fire alarm, he came back, he chatted with Verizon, lo and behold he said well 8 actually there is, but don't worry about it because we have cinder walls and we'll make the roof 9 so that it can just blow off because that's typically what happens in hydrogen, in a hydrogen 10 environment. 11 12 And by the way there are other options, everybody else is less than 60 feet nearby and I, we've 13 all mapped as part of the neighborhood other locations. There's no reason it needs to go in this 14 location. So again, it's not about it's not about wireless, nobody's a tin hat radiation freak here. 15 This is about what are we doing to our residential neighborhoods, right? Precedence setting 16 tonight and what are we doing in the midst of our children and I think that's what we have to 17 think carefully about. So thank you. 18 19 Chair Michael: And thank you. Ok. So there's a number of precedence setting matters that 20 we've had tonight. One precedent is this is the most material we've had to review in any 21 application in my experience on the Council and I also would like to compliment the quality of 22 the advocacy on both sides. Very well organized materials and arguments pro and con. 23 24 So let's come back to the Commission. I'm assuming we're going to need at least two rounds. 25 Maybe we can keep it to two rounds, but let's try and focus the first round in terms of questions 26 that would clarify and then maybe we'll have a motion and we'll get into more of the comment 27 on the motion. So let me start with Commissioner Alcheck. Take up to five minutes. 28 29 Commissioner Alcheck: Sure. I should preface my comments by I would be prepared to make a 30 Motion at this time, but I won't. My first question it's for our distinguished attorney. On Page 7 31 of the Mackenzie Albritton report Section 7, Paragraph 2 the gist of the paragraph is the 32 proposed that the suggestion that the proposed facility's use should be permitted through an 33 amendment of the Palo Alto Little League Use Permit demonstrates a profound 34 misunderstanding of basic land use law. So this paragraph about whether or not the basic CUP 35 needs to be amended or whether this new one is acceptable, I'm curious to know if you agree 36 with the position that's been presented in this brief? 37 38 Ms. Silver: Yes, thank you. So our wireless facilities regulations require a CUP for a wireless 39 facility. And so there currently is not a wireless facility on the site and so it's appropriate then to 40 seek a new CUP for a new use, which is a wireless facility. So I think that the process that 41 Verizon followed seeking a new CUP is entirely appropriate. I think it's possible that they could 42 have also amended the existing CUP; however, that would require further negotiations with the 43 owner. It might open up some of the conditions on some of the other existing CUPs so this is 44 typically a question that owners face when they add a new use to their property. And I think 45 either course is procedurally correct. 46 47 Commissioner Alcheck: Ok, so that last sentence any expansion in the building size or site area 48 of the existing conditional use shall necessitate amendment of the CUP. That's in your view 23 1 that's consistent with your answer that essentially this is a different use and it's not an expansion 2 of the existing use and as a result they can be compatible and thus there can be two CUPs here? 3 4 Ms. Silver: Yes and I believe the property does have multiple CUPs. Is that correct? 5 6 Ms. French: Yeah. I believe the 2008 CUP for lighting also may have been a variance, but we 7 don't have the file to... a variance and a CUP (interrupted) 8 9 Commissioner Alcheck: Ok, let me ask another quick question while I still have time. When a 10 CUP when a later CUP potentially contradicts an earlier CUP would that be an indication where 11 there should be an amendment? 12 13 Ms. Silver: When a later CUP conflicts with? Well generally I think that the later CUP would be 14 construed to supersede that first CUP. 15 16 Commissioner Alcheck: That makes sense because I could very much see why an existing owner 17 would not want to open up the can of worms involved in amending a CUP because that process 18 could be a can of worms. So I'm going to conclude my comments by just suggesting that one of 19 the speakers I don't know if it was Mr. Allen or Mr. Lucha or Mr., Mrs., Miss, Mrs. Amsbaugh, 20 one of you suggested that you almost didn't come tonight and I would just like to encourage you 21 to attend the City Council meeting that will follow this hearing should there be one because 22 comments from representatives of the leadership of a local community are incredibly valuable to 23 us. And I'm not going to ask you to indulge me and let me know if you're a Verizon customer or 24 not, I'm not a Verizon customer, but I just I can't emphasize enough that it's very valuable to 25 have your input and I encourage you to make the effort to attend any further hearings that you 26 have. One of you suggested that a lawsuit would be eminent if this proceeded that you didn't 27 think it would end tonight or even at Council that it would proceed with a lawsuit. My only 28 comfort to you is that a lawsuit will involve a cost/benefit analysis. Someone will have to pay 29 for that and it's not just time. And I want to reiterate to my fellow Commissioners that I will be 30 prepared to support a Motion momentarily and I will only participate in a second round if you 31 strong arm me. 32 33 Chair Michael: Commissioner Fine. 34 35 Commissioner Fine: Thank you Mr. Chair. Thank you also to all the public who attended tonight 36 and gave us their points of view. I really appreciate all that. Just two quick questions, one for 37 the City Attorney; so Regulation 14453 is approved and good and essentially makes this clear 38 with regards to an additional CUP that would be needed for any more wireless facilities on this 39 site. Is that correct? 40 41 Ms. Silver: Yes, it's Condition 24, yes. Yes, and that does require that. Yes. 42 43 Commissioner Fine: So that that Condition 24 and the Director's additional regulations is clear 44 and legal as of this new 14453? 45 46 Ms. Silver: Yes. It is a voluntary condition that Verizon, the applicant, has agreed to and yes we 47 do believe it is enforceable. 48 49 Commissioner Fine: Ok and 14453 is law it's just waiting to go into the federal register? 24 1 2 Ms. Silver: Yes, it goes into effect 90 days after it's posted in the federal register. 3 4 Commissioner Fine: Ok. Thank you. That's all my comments. 5 6 Chair Michael: Commissioner Gardias. 7 8 Commissioner Gardias: Thank you Mr. Chairman. So I'm looking for a clarification about just 9 what we talked at the break we have a comment here in the handout that the applicant consulted 10 City of Palo Alto in regards to the conceptual plan for the broadband infrastructure that's in 11 works. And I just wanted to understand how far we are with this plan? Was the effort made to 12 make a possible opening to accommodate this under this upcoming plan when the plan will be 13 enacted if anyone could provide update on this plan? 14 15 Ms. Silver: So we have a little bit of information the Wireless Plan. I believe it was scheduled 16 for a City Council study session in December and given the fullness of the Council's agendas it 17 was recently continued to January. So really I'm not even sure if we have a selected a 18 consultant. 19 20 Mr. Lait: So we do have a consultant onboard and that was done I think in April this year. The 21 work underway though it's like a three phased effort and the first, the first phase is to assess the 22 wireless broadband communication needs. The second part of that is to select a system of certain 23 wireless communication facilities to be sited at specific locations, and then the third is to develop 24 a master plan strategy for wireless communications in the City. So we're, we've selected a 25 consultant, but we're still in phase one, which is background gathering and data collection. But 26 there's not been a tremendous amount of work done that I'm aware of at this point, in fact there's 27 been no billing from the consultant to the City for work under the data collection piece. So 28 we're still a ways away from getting this moving forward in large part because there's been a 29 number of other priority projects that the department's been working on. But we'll be checking 30 in with the consultant and finding out about status updates on that as well. 31 32 Commissioner Gardias: Is there a proposed go live with this plan? 33 34 Mr. Lait: No. We're in the very beginning stages of putting the Wireless Plan together. 35 36 Commissioner Gardias: Ok. The purpose of this inquiry was pretty much to understand if there 37 is an opportunity to somehow reconcile these two parties and maybe accommodate this cell 38 tower under some sites identified or will be that will be identified in this new plan. 39 40 Mr. Lait: At some point in the future that may be the case, but you have an application that's 41 before you now and we have a policy document that we're in the beginning stages of preparing 42 and it's going to take several, several months I would say well into 2015 for us to complete that 43 effort. 44 45 Commissioner Gardias: Is also in the study is there some research proposed to eventually move 46 existing infrastructure to the new locations and if yes what would be the condition on those? 47 48 Mr. Lait: So I don't think we have any information on that. Again we're just in the beginning 49 stages of data collection. 25 1 2 Commissioner Gardias: Ok so let me ask you in the same consideration a different question. 3 CUP may include the time horizon, may it? 4 5 Mr. Lait: So CUPs run with the land. A CUP when granted runs with the land and I think 6 historically there was a practice at one point where they could sunset, but I don't believe reflects 7 current state law. So when a CUP is granted that that use permit runs with the land and is not 8 revoked. If you were asking about when it could end like sun setting when the CUP might end? 9 10 Commissioner Gardias: No it's not revocable, but pretty much just eschewing this under 11 condition that it will run upon a certain time and then at the certain time would have to be 12 renewed and then it would give opportunity to migrate the infrastructure to a new location that 13 may be more strategically appropriate for this type of towers and locations, which would maybe 14 reconcile these two parties on this condition. I know that would maybe mean additional 15 expenditure for Verizon. I understand this, but then it would make some clarity and maybe 16 within this infrastructure that's already being built but maybe in other desired locations. 17 18 Ms. Silver: So we currently don't have a limited duration CUP process. If, if you wanted to take 19 a look at something like that what I would suggest is perhaps a condition that requires some type 20 of reporting on the status of the Wireless Plan and maybe the applicant can be given the 21 opportunity to coordinate and relocate to a City facility in the event that that does materialize 22 under the plan. 23 24 Commissioner Gardias: That's correct. That was my intention to understand if we can legally 25 approve this permit, but provide a time condition to run out after say a year once the plans are 26 approved for this wireless infrastructure that would give the opportunity to relocate this to a new 27 more appropriate location. 28 29 Ms. Silver: We would have to look at the enforceability of that type of CUP. Currently our 30 regulations do not provide for limited duration CUPs. 31 32 Commissioner Gardias: Thank you. 33 34 Chair Michael: Commissioner Downing. Ok. Vice -Chair Tanaka. 35 36 Vice -Chair Tanaka: So I have some questions about the survey results. So I was wondering if 37 maybe staff knows or perhaps the neighborhood President could answer them. So my question is 38 and if staff doesn't know maybe Ken can approach is do we have a map of where of who 39 responded? Because I didn't actually see the survey form so (interrupted) 40 41 Mr. Allen: Adobe Meadow Neighborhood covers the region between Middlefield Road and 42 Nathan Way bordered by East Meadow on one side and Adobe Creek on the other. It is at the 43 edge of the targeted area not directly in it. The targeted area is actually the Palo Verde 44 neighborhood and we did not survey that neighborhood. We have approximately 300 households 45 that would mean a potential 600 or so respondents and we had 137 respondents so far. Other 46 responses are still coming in and if we can expand our survey to cover those other neighborhoods 47 it's been both an online survey and a paper survey. I spent last night entering the data so that 48 you could have it in this summary. 49 26 1 Acting Vice -Chair Tanaka: And was it the address of the respondent was it anonymous or? 2 3 Mr. Allen: The respondents gave both names, e -mails, and addresses on the condition that they 4 could optionally opt out of disclosing their personal information, but we do have the information 5 and know exactly who responded. 6 7 Acting Vice -Chair Tanaka: Ok. Is it, does it do you guys have a map of this of like the responses 8 where the responses were? 9 10 Mr. Allen: One of the things we're going to look into is mapping the responses. We do have 11 their addresses and my informal analysis of the survey indicated that the coverage of the DAS 12 antenna at Nathan Way and Louis was very limited. You get more than 1,000 feet away and it's 13 simply inadequate. Similarly the tower at the Fire Station 4 is also very limited. The comments 14 earlier about trying to locate a more appropriate site such as Cubberley does not seem practical 15 because you'd have to have a very tall tower, probably 150 feet in order to cover the targeted 16 area and that doesn't seem practical or even acceptable to the neighbors. And so in my opinion 17 colocation at this site, Little League Park would be very practical, it would be a very low impact, 18 and at 65 feet it's probably very appropriate and very stealth. Any other questions? 19 20 Acting Vice -Chair Tanaka: Yeah, so I guess there was let's see 24 responses who did not want 21 the antenna at the current site either not at all or (interrupted) 22 23 Mr. Allen: Actually, they're actually, yeah that's including those who suggested that it be in that 24 the cell tower at the substation would be appropriate, but only 17 were categorically opposed to 25 the site. 26 27 Acting Vice -Chair Tanaka: Ok. So where were these 24 located? 28 29 Mr. Allen: The 24 were scattered all over. Along Middlefield it included the Yotopoulos family, 30 the Liao family, and a couple of others. There were quite a number of people along Middlefield 31 who actually supported it. A number of people who were right adjacent to the East Meadow, 32 along East Meadow near the Sprint tower who had Sprint said that we don't need it, our coverage 33 is fine and those people that are right around Nathan Way along Louis and Corina said we don't 34 need it our coverage is fine. So some of those people who were opposed to siting it did so 35 because they thought their coverage was fine. I think if they had some other service such as 36 those along East Meadow who have AT&T service and said that it's totally terrible are a typical 37 example. If capacity is an issue, which apparently it is it doesn't matter who whether they have 38 coverage or not unless they can increase capacity. 39 40 Acting Vice -Chair Tanaka: And so the survey was, was the survey hand delivered to every single 41 door? 42 43 Mr. Allen: Yes. 44 45 Acting Vice -Chair Tanaka: Ok. Great, thank you. 46 47 Chair Michael: So we had actually closed the public hearing after the speaker cards. So if I 48 suspect this will come up shortly before the Council and other public speakers will have a chance 49 at that point. Some questions that I had before we go to a motion I'm looking at the two CUP 27 1 findings and I'm also looking at the conditions of approval which were set forth in Attachment 2 B, which there are 44 conditions of approval and a couple seem to me to be just worth clarifying 3 to make sure I understand. One is on Conditions 19 and 20 it relates to the visual appearance of 4 the structure: color, material, paint so it matches. That seems to be important. Number 24 is that 5 any colocation of an additional wireless facility shall be subject to a CUP, a separate new 6 process. That seems to be important. Number 27 which actually goes into the potentially 7 injurious or hazardous and may be related to Conditions 33 through 36. 27 is the applicant shall 8 have the option to select either diesel fuel backup generator or a hydrogen fuel cell backup power 9 supply system and as I understand it that the applicant is probably agnostic with respect to how 10 they get the backup power. I'm seeing yes in the affirmative, but that they were trying to be 11 responsive to concerns about noise and that in that process collaborating with the community and 12 staff they moved to the hydrogen fuel as something that would be less noisy. 13 14 And that goes to Conditions 33 through 36, which relate to the word hazardous comes up in each 15 one of these. There's a hazardous materials registration form and so on which is sort of a 16 process it has to be pursued with respect to the introduction of the hydrogen at that site. Then 17 there's a hazardous materials business plan required including a site chemical list, again 18 bolstering the procedure to make sure maximum safety. Then the hydrogen fuel in Number 35 19 the power plan should be reviewed by the Building Division for compliance with code, 20 important. And then Number 36 the hazardous materials permit required before vacating the site 21 and I'm suggesting, I'm seeing that the consultant is going to educate us about my questions. 22 23 Mr. Simpkinson: Yes, so the process as was stated by the applicant involves the planning 24 approvals for the approval to proceed with design and then the engineering design is actually 25 reviewed during the building permit process. So most of those items are dealing with the 26 elements that will be included information needed for us to successfully plan review the process. 27 So as I said there are many engineering controls that will be required under the building code, the 28 fire code, the mechanical codes, the National Fire Protection Association (NFPA) standards that 29 deal with hydrogen fuel cells, so the primary focus that we have here is making sure that we have 30 the best possible information to proceed with those engineering reviews once the additional 31 engineering documents are prepared by the applicant. 32 33 Chair Michael: Ok, thank you very much. And my last sort of question kind of goes to the 34 question that was raised about whether there might be sort of preemption in the sense of 35 considering sort of an application for the CUP in advance of the development of an overall plan, 36 a Wireless Plan or an update of the Comprehensive Plan. And I just want to note that there's 37 always a balance between current planning and long term planning. In my I guess personal 38 issues comes up many issues that comes before the Planning Commission is that long term 39 planning is really difficult and sometimes it takes quite a bit longer than it seems like it should. 40 And I think particularly the update of the Comprehensive Plan to me seems scandalous that it's 41 gone so far beyond what I think is the sunset date of 2010 and it really has gone through a 42 process of sort of ready, fire, aim in the sense of it should have gone to public engagement back 43 around 2008 with extensive Our Palo Alto type meetings and getting the community involved in 44 understanding what the vision of the City was such that we could go through an orderly process 45 of coming up with a long term plan. 46 47 Similarly having an overall wireless plan for the City having served on the Infrastructure Blue 48 Ribbon Commission (IBRC) the concern about developing infrastructure for the City pursuant in 49 a planful way seems to be of great importance and it's very difficult to do it planfully. So what 28 1 happens is you get these projects which are important projects there's critical aspects of 2 infrastructure service delivery that are needed now and it may be years before we hire the 3 consultants, have the community meetings, update the plan, get the Environmental Impact 4 Report (EIR) done, and so forth and these things are truly acts as an urgent requirement to the 5 community kind of in real time while this planning goes on. And I wish that the long term 6 planning were more efficient and if I were in charge it would be, but I'm not and that's probably 7 a good thing. So the preemption issue seems to me intellectually challenging, but I think we 8 really have to go through with these things on a as they come up. 9 10 And on transparency I really want to compliment the turnout. This is it's a difficult issue, it's a 11 complex issue, it's an important issue. People have put a lot of thought and effort into being here 12 and preparing their remarks and this is, this is about as transparent as it gets. So this is clearly 13 going to go to the City Council. This may be sort of a dress rehearsal for that so have at it and I 14 really think this is sort of the Palo Alto process working in the best interest of the community. 15 16 So with that let me see if we have a Motion and I might recognize Commissioner Alcheck to 17 state a Motion. There's a on the screen there's a staff recommended Motion if you like that you 18 can go with it or... 19 20 MOTION 21 22 Commissioner Alcheck: You know my pleasure. I motion, I would like to make a Motion. I 23 move that we recommend the City Council approves this CUP application for the wireless 24 antenna project based upon the findings/conditions of approval contained within the Director of 25 Planning and Community Environment's approval letter. 26 27 Chair Michael: Ok is there a second? 28 29 SECOND 30 31 Chair Michael: Commissioner Fine. Commissioner Alcheck do you want to speak to your 32 Motion? 33 34 Commissioner Alcheck: No. I think I... 35 36 Chair Michael: Commissioner Fine. 37 38 Commissioner Fine: Thank you Mr. Chair. I just want to echo what you mentioned. 39 Everybody's comments here were really helpful and informative and also echo Commissioner 40 Alcheck that when this does go to City Council I encourage all of you to attend that meeting as 41 well. 42 43 Chair Michael: Commissioner Gardias. 44 45 Commissioner Gardias: Before we vote I'd like to make a question to the applicant. The 46 question is in this what we discussed a few minutes ago, what I was inquiring about the plan. 47 Would you be willing voluntary to relocate the facility to the designated sites once City of Palo 48 Alto has the new Broadband Plan? 49 29 1 Mr. Albritton: Yeah, I wish I could answer that question. I do want to address it briefly. The 2 Master Plan Concept came up in December of 2011 and it was in association with the AT&T 3 DAS Project that I was involved in. And it actually involved proposals from folks who didn't 4 want a DAS project to have macro projects instead and the staff had actually suggested through a 5 company called Crown Castle that there might be macro sites put onto City power stations and 6 the suggested plan was to put 125 foot, potentially put 125 foot monopole on the power station 7 that is 60 feet north of where this location is now. We tend to believe that what has happened 8 with the smaller Sprint, hidden Sprint and T -Mobile and Verizon facilities is perhaps a better 9 solution. If there is 125 foot tower 60 feet north of the current location my guess is Verizon 10 would be very interest in going onto that facility. 11 12 At the same time if you were to try and hold up applications during this process which began in 13 2011 it would be a defacto moratorium on wireless facilities and that would not be legal under 14 state or federal law. So I guess the short answer is it depends, right? So if it's going to provide 15 superior coverage and capacity for Verizon Wireless they'll be very interested and they're 16 always interested in going to colocations or existing facilities. They don't like controversial 17 sites. They would rather go somewhere that's not controversial and I can tell you I've been 18 doing this for 30 years. The technology continues to change. It continues to be in high demand 19 by the community and so that the demands five years from now maybe when this plan is done or 20 10 years from now I can't answer your question but likely any available facilities will be of 21 interest to Verizon Wireless. I hope that answers your question. 22 23 Commissioner Gardias: Not, not fully, but at least we have some lukewarm interest which we 24 should note for the purpose of our studies that, that if we offer colocation conditions I understand 25 that Verizon would be interested in moving out of the Little League and joining the others. 26 Thank you. 27 28 Chair Michael: Vice -Chair Tanaka. 29 30 Acting Vice -Chair Tanaka: So I have a few questions for staff. So I'm looking at the thing we 31 got from Charlene Liao, the e-mail. And it has a bunch of pictures of lights spilling over into the 32 properties across the street at Middlefield. And my question is I thought I recalled there was 33 some ordinances and maybe I'm mistaken, maybe staff can talk about this, but isn't there 34 something about you're not supposed to have light spilling over into neighboring properties? 35 And maybe can you talk a little bit about that and how does that apply to this project? 36 37 Mr. Reich: So we do have ordinances that do require that the light not spill. I wasn't involved in 38 the 2008 application, but it was a variance to allow the lights as they exist today. The unique and 39 special thing about this application is through the ARB process the applicant has volunteered to 40 further shield the lighting when it replaces the lighting on this particular tower to improve that 41 existing situation. It is concerning that this lighting has existed for many years without a single 42 complaint, but complaints from these specific individuals have begun to come forward as a result 43 of staff's support of this current version of the application. So you'll have to take that with a 44 grain of salt. 45 46 Acting Vice -Chair Tanaka: Ok, so are they going to also shield the existing lighting or just the 47 new lighting? 48 49 Mr. Reich: No, it would be specific to the light that's being, light pole that's being modified. 30 1 2 Acting Vice -Chair Tanaka: Ok and the new light on the monopole is that going to be fully 3 shielded from the houses across the street or just partially. 4 5 Mr. Reich: Perhaps the applicant could speak to what their specific shielding is going to be. 6 7 Mr. Lait: So actually Commissioners if there's an issue with light spilling over and that's in 8 violation of the Municipal Code or whatever the standards are we can investigate that. The, the 9 public correspondence documents leads to concern for us to take a look at that and I think it's 10 worthwhile for us to send our code enforcement officers and see what the light spillage is in the 11 evening and then we can work with the property owner to address and remedy that issue. 12 13 Acting Vice -Chair Tanaka: Ok, but I think this, this project's been kind of going on for five 14 years and there's a pretty good turnout today. I think residents feel strongly on both sides and I 15 guess I think technically lighting is not a part of the actual legal thing that we're looking at right 16 now, but kind of in the spirit of trying to bridge, bridge some of the gaps here I think it's 17 worthwhile for the City to actually do that to actually and maybe even for the applicant. It 18 doesn't seem like, it seems like it's going to try to be done anyways maybe if the cherry picker is 19 already out there they could shield the existing lights and maybe help placate I mean this, I 20 understand there's technicalities and we're going through this and the technicalities are pretty 21 clear here, but there's also kind of the emotional kind of right thing to do. And some of the 22 people who oppose this are kind of upset about the lights. And shielding the lights seem like a 23 neighborly thing to do and maybe that should be done irregardless, but if, if that will be part of 24 the process automatically then I will just drop this issue. Thank you. 25 26 Mr. Lait: So there's a couple of ways that we can approach and I'll look to Cara Silver to help 27 me out if I get out of bounds here, but one way is for us to follow up through our code 28 enforcement efforts. There may be another opportunity and I don't know if the applicant was 29 intending to do this or in light of the testimony that's been received today if the applicant would 30 volunteer to address the existing light standards in an effort since they're there and they're doing 31 the work and presumably it's a nominal cost to provide the shielding if as a part of the approval 32 if the applicant would volunteer to do that and that would be a question solely for the applicant to 33 answer. But absent that volunteerism the City would have recourse to address any violations of 34 the Municipal Code. 35 36 Acting Vice -Chair Tanaka: Ok, can the applicant... through Chair? Can the applicant talk about 37 (interrupted) 38 39 Mr. Albritton: Paul Albritton once again. In, with, we did have a light study done and we came 40 up with 14 inch shields for there are no shields today and there's a choice of seven inch shields 41 and 14 inch shields and did a light study to limit the spill and that's from the tower that we'll be 42 working with ourselves and then the manufacturer of the existing lights will be coming out, 43 Musco, and they'll be doing a live analysis and adjustments of the lights that we're putting in in 44 order to minimize the glare to adjacent properties. So I can certainly I can speak to the facility 45 that Verizon Wireless will be working on that Musco will be on site at some point to adjust those 46 lights with those visors. I can't volunteer tonight more than that, but I would have to say that if 47 the manufacturer is out there working on the lights it makes sense that there may be some 48 collaboration with neighbors. But I can tell you today that they are going to be coming out to 31 1 specifically adjust the lights that are replaced with the Verizon facility to adjust the visors to 2 minimize the spillage. 3 4 Acting Vice -Chair Tanaka: Ok, well I, I'm not pressing this issue, but I would recommend just in 5 the spirit of being good neighbors and trying to have this five year endeavor come to a happy 6 close for everyone it might be the right thing to do. 7 8 VOTE 9 10 Chair Michael: That concludes our comments and questions. I think we're ready for a vote on 11 the Motion. All in favor please raise your hand. Any opposed? So it's approved unanimously. 12 Thank you very much. So we'll just take a brief like five minute recess while people get a 13 chance to clear the room who are not interested in our housekeeping matters and then we'll just 14 wrap up. 15 16 MOTION PASSED (6-0-1-0, Commissioner Rosenblum absent) 32 ATTACHMENT G Planning & Transportation Commission, City Council, On October 23`d, the Palo Alto Director of Planning & Community Environment tentatively approved the largest cellphone tower ever in a residential area in all of Palo Alto. The proposed tower would be 65 feet high and located in the Palo Alto Little League field on Middlefield Road. This tower has been a lightning rod for our neighborhood and residents, as the NBC Bay Area TV coverage from that Thursday afternoon highlighted. Dozens of residents have presented their case against the tower on behalf of approximately a hundred households that oppose the Ballpark cell tower. Pa I oAltoCe I ITowe r. m p4 Many residents are frustrated with the lack of transparency in the City of Palo Alto planning process. Residents therefore hired a professional planner and wireless expert to independently review the Verizon proposal. This analysis has validated a significant set of concerns and violations regarding the proposed cell tower in the more than 70 pages of substantial documentation produced by the consultant, which is attached for your review. https://www.dropbox.com/s/yauwhoezvd9yfxr/3672%20Middlefield%20Road%20Kreines%20Report.pd f?d1=0 This letter is to appeal the director's decision for a number of reasons, not limited to the following, with detailed substantiation which can be found in the report: • Decision Under Duress, Compromising Due Process: Verizon is threatening legal action, using the FCC "shot clock" to force a quick decision, yet important details remain unaddressed in this proposal. In addition, a set of inconsistencies exist in Verizon's plan (existing building specifications do not meet requirements of equipment designed for outdoors which it encloses or the requirement for separation of incompatible materials or the clearance requirements, unclear emergency temporary generator operation, no construction detail, application was never frozen so departments are approving old versions on an application that is a moving target weekly, etc.) • Inconsistent CUP History, Target Site Is Out of Compliance Today: The proposed expansion in building size of an existing conditional use requires the amendment of an existing CUP per City ordinance (per Title 18 Zoning 18.76.010.b2). With at least four existing CUPs in violation and numerous unpermitted additions, this project cannot be approved without amending the site's primary CUP, which will require dealing with the site's non-compliance of all of its current CUPs (lighting, pole height, 3 new unpermitted buildings, fence height, structures within R-1 encroachment area, no permit for easement, lights shining in neighbor windows, etc.). And the property's permitting history is significantly inconsistent, as can be seen below and found in the report. i story of Permitting at 3672 Middlefield bowls) C 1965-2008: 1 unpe1rrc<tted, noncoanprant acidtons 1965 651)011 Stoe 1956: UP: Oubhouse 1952: 2.52UP: Construct a Ba9park !new CUP can not be issued until at leas the most recenti CUP and non -compliant additions are brought into compliance 0R PALL remains non -compliant with noCUP equviiit4ove used as 20' Sign Limit Joh • Residential Community: Not only is the project incompatible with a residential neighborhood, the property is zoned as R1 in the City's Comprehensive Plan and the new lease, use and easement rights compromise this planned use by the city. Should the property owner, a California corporation with a continually changing managing board, decide to sell the property for the significant profit it could offer, the property would no longer be viable under its current zoning, R1-8000. Allowing cell towers, hazardous materials, and third party access easements traversing the only property ingress/egress area, all protected under Federal law is akin to a de - facto zoning change, but without the proper City process or community oversight. • Loss of City Oversight and Control: Given a new Federal law signed by President Obama in 2012 and ratified by the FCC Friday October 17th, 2014 (Middle Class Tax Relief & Job Creation Act of 2012), once a cell tower is constructed, "a State or local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station" with the term substantial defined as tower size increases to 20 feet in height and 20 feet in diameter, per upgrade, with no maximum height specified. This means that the City may not deny any request to add additional carriers who wish to collocate at this address (either on the same tower or on a new tower) and may not deny any application for the existing carrier (in this case Verizon Wireless) to upgrade or improve their existing equipment. Federal law has jurisdiction wherever it is defined, state law follows where Federal law is left undefined, and local ordinance follows where no Federal or state jurisdiction exists. As of October 17th for the first time, this Federal law trumps our City ordinance of a 65' height limit, any local "requirement" for a new CUP, or any other locally imposed requirement meant to govern the proliferation, sizing, or appearance of cell towers on existing locations. This site has been called the "crown jewel" of Palo Alto by wireless companies and is now at risk of quickly turning into a cell tower farm. Therefore the reasonably foreseeable cumulative impacts of multiple carriers and monopoles must be well understood now. As indicated at the ARB meeting on September 18th, if another carrier wanted to co -locate at the Little League Ball field and increase the tower height, the City would "have a problem." This seriously disturbs residents, and ARB Chairman Lippert foresees a potential "Federal -City estoppel" in which the City may need to "cede all local control" with a Federal law that gives no local standing. Council needs to be forward thinking and can hope for the best but needs to plan for the worst. This is not something that yet another CUP on this property can solve and requires definitive legal interpretation before approval. - See Middle Class Tax Relief & Job Creation Act of 2012, Section 6409 page 78 at http://www.gpo.gov/fdsys/pkg/PLAW-112pub196/pdf/PLAW-112pub196.pdf - See FCC Notice of Proposed Rulemaking 13-222, release date September 26, 2013 paragraphs 90-134 at https://apps.fcc.gov/edocs public/attachmatch/FCC-13-122A1.pdf • Alternate Location Options. Verizon has not made a reasonable attempt to exhaust other options for cell tower sites nearby. Other 60 -foot tall buildings and industrial parks and manufacturing/warehousing locations exist within half a mile where Verizon could collocate without the degradation of a residential neighborhood (Loral on Fabian or old Cubberley site at 2500 ft away, Middlefield/Charleston Shopping Plaza at 1500 ft away, Mitchell Library roof or East Meadow Utilities Substation 60 feet away) • Pre-empts the City's Own Wireless Plan: The City is in the midst of completing our Comprehensive Wireless Plan with Anthem Telecom in work that was commenced a year ago to decide the appropriate siting for towers and any potential colocation. These are important, permanent city infrastructure decisions whereby they city establishes guidelines and makes decisions based on those standards. Moreover, the City Council is currently evaluating locating cell towers at local power utility stations (60 ft away). It only makes sense to wait until this city- wide planning has been completed before making an ad hoc decision on a new, record -breaking cell tower in a residential area. Thank you for your consideration. Jason Yotopoulos and over 100 very concerned neighbors of the Little League Ballfield 'l01.. '`• {H'ili�'1'";iil�"tFy�•�,�i'.,, �ii<•�!L ii'ii y�h "d �'�S. �o .. �{� `'f���li4;'.;��' f ', f� .��: E�1.'f•�I,Ei�i �. iiifi �E, riZi Yl Wireless ih pr0p,oSidg:a *`I lu['iCli l ld' �adr X' h 'ta' d11 b 3 New erg' 6,4tin . i i pricrC established cell•towe•r r'`f '!A¢4E ' . tfhe,fcc.gov.site, typical • higher. and uglier. .. • ^:i'i;r', Pr operty vedue W,r With all E rE', to rs. � � � �perljr'v'al���„�i�i��.��a���i . negatively impacts pt'ope h. y lue ..Wei D�'aclt g'A 60+ Year old:. 'isIor cal County, Established In the ear jr. 9Stls �fi P ,,, eligible as a'Callforufa'Iilistoii ,A oui' e ,3i `•'; ri;s Safety. The Ballpark' s tkz ;Y#oi or coq hi b it `'i Immediately adjacent"to .Mf ill? Pa the 1iw'+i .. Covenant Childt'en's.CeAttr; plus electrical eriuipmeit•ahed,s; lnd hYdrpg#:.. Palture of Wireless :Curipa y; *derr o ,, coverage' of any car19er,.'S:in,tb .,p'Frrti' Xi'ti,it eij coverage at this'l 'tnli;, Nuisance/lnvasii n.ofl rlvwy, 0ck of l It 140• involve: re ;ul'ar i dus � . eat e:; 1 k; i iir c r s `The• i x 41". droning sound ?4'hours a:'cday ,J6 days,'a e r, ' �. . ., perty'ant! Al eii hbQr �=I Property �il�+(1��S�1IC01�;�7'A��II���` %���rClj�#'#�^�;;. thyee acres zoned.a .Ol gle, ily R,esideii aIi.(4 U e ue f to re -zone. as a Public Pac ity'Zone inistead' of 111 b t'c eciii:to, t p t •Dwi ger ous Approval Precedent to set far'R 1: ne h,lior'hoo ' Ala ro zoned neighborhood surrounded' by homes, schools,'and, ' which could lead the qty to',ignor'e its: awn•lfi • zoning and put'such to flnacially ad ntagious. • Aestheticadly Destructive:, A 65 :foot celltowei (pote t :701 , , .. ,. ,.� , :,;., •, above nearbylocatlions,•with a.9,5.footfall 44O ar Foo i zlt,t squ a i 'G ni<ii :. i ;, Polo Alto M� a Lea '[4e Out ' 1' •7;'I ::iii ' ',E,.i ,;•iEp. � of Cn'�rpllan�e, Tkt�' B�1'�park �s �.�,u �r► ��;..:., variance as a ball ar-lt. It also. op :in .tho evi i , n ,. -, , i p orates�itg�:�. �'� art pojes and Cbntt�ltlon �l �tt't � .f• �' :?'0.1.6',,0,0, �` ��]r;�•'v;�r��i��;,, a ,Use' Per, t {Oil roiri '1 `, �s.' . ' • a .Pur�h6r• Cep toil c' ,;C •. . � • � ',� i l�`•v�,�t � 01 aw r, xt'needs to:tie.tornplii; t'tisti. ~ "i:i h' rb e: t ' s e44p**the New 00110 itn cm bso tent pagos: . No Cell Tower at Junior League Ball Park (3672 Middlefield Rd) it t4,-4, troutr ,1(t (4)cc.) :45„1-4„,etiek(tv 51-)Cj1 toe 4( 3 0 Aire. lct r r ( rtJ, Pi:115(15z,, rco, p e;1 crli '11 3 Rot\ . kr1 tier) P1.111(1(/\ 1,\y, .1 ry No Cell Tower at Junior League Ball Park (3672 Middlefield Rd) 5 1` ..() (4-\640,r,44,:\ c( W5/ 1 .c ct3. (4a ci a...( !r 9iCip 14. (60 cetrtj (.7 37(7 of. 7 . 6 ,t/te— c-71( 1/61 cx /4„.,0 f'cLl (r CC1. �4 Name ADDRESS WE OPPOSE VERIZON1S 65 FT TALL CELL TOWER AT THE PALO ALTO LITTLE LEAGUE BALLPARK, ,A Historical Site in the Heart of Our Residential Neighborhood Signature ' giciwk ui 3sa6C2v‘44Wo1 Aki44(40 6('''11A4 2-.-2-2 00 -4,x -t ..S"A/ IP 4, 4/gN 1 (0-0 iv4ralCKta I fig i ' 11\0vY1,04-\))0,6svpod: 476 Malitir litew Yk 1 `i30(067 ¢f Yy"v� s4io mai/icy Yana AJrj Pay'fi51 001 It 0464K,,,,R-a 606 cJeMv (1; X06 CL)J2Uoyitifi A(6-0 Jck/voz, Pvi hyvNI WE OPPOSE VERIZON'S 65 FT TALL CELL TOWER AT THE PALO ALTO LITTLE LEAGUE BALLPARK, A Historical Site in the Heart of Our Residential Neighborhood Signature Name T'41 CA, . 5-114 tie, ADDRESS ,rl)(Jr1f%I 6vviii Dr. /*/d . q3i Pr‘rw, )),t Vtib Pvto cA e 346Z &or 57r1 . f)4,Co Is E, iv? g 51/re4-1,-;-a\iet4) 3104 Oak;\ Ck Aft cA614.30i, �.._S JZikAok 6;tx, [ to E cLADtKn On LW430 PirAttooti 161). Li9V-0161te-, Aviz_itA cc4' 1/4,4 ? Pos-emvc.),4 DIR ail 4^‘c's Aix°. 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Hew► l(Dcfr. cfl °rqti yom hAQ )444 x,63f •atay ci ?I' c4("t° WP OPPOSE VERIZON'S 65 FT TALL CELL TOWER AT THE PALO ALTO LITTLE LEAGUE BALLPARK, A Historical Site in the Heart of Our Residential Neighborhood Signature Name ADDRESS c-\ 7%-SUaacA4 1�. r��avws,.aActAr IY-J1%,e-44(14.-V ERs- ettf3Q3 54/bictellin .M19 053 KO, VI ;04‘”) mer Alv., 37 F-5 /IfIdollee 412,630,3 P/A,kt_ /4,( nc9S- ,ete-.1d cep SCI L1"%Sii 3b61 MtD9t-k.f,+EiD Gl43Q.3 at-Ale:ra bOtA 1140 avJoaireovo 3 S S 0 14 3(4 ifAll) 3842r d ;10;5 •e4 (%0, 1--)Cu\linj Wkiti 41-‘iu LA:rAt ukajz, 7,17-tzkc Cv:/\ 4%A.c7,4e; WE OPPOSE VERIZON'S 65 FT TALL CELL TOWER AT THE PALO ALTO LITTLE LEAGUE BALLPARK, A Historical Site in the Heart of Our Residential Neighborhood l Signature Marne A -;n. 6,74,1-,\R-. ADPIESS ea) Aii;k) rifYhg.7121- mirve,/,4),41///4y �sl �Yiib logo ((-4-f<r, .30/ fo 1/40.,4A.u_41,, 1)6E4. 444 p, i43v( ?G.0 Watt, 41, 7640:5L. iceula,,56L,0-0,a9)/0/ vtY, 1J kuNi-e‘, 17 NAlcitg,,[12, 1//1,A,73 j�?A L. Cr 4, rt L 5315 NfeinA; Te,neliggio 10,v6/ P6'%--A, cog,R,5'd'et4,6 °143c )te(et-gt6141Lvv,/Art, 4-~rlCn /dve ki2.4,60 /44v, ci.qq b {/yj`j41M1 win 317�( Gtt"V'1 /e,{,AQ,lee/wl,, /"FLU mI(.c'�, am} (L6) WE OPPOSE VERIZON'S 65 FT TALL CELL TOWER AT THE PALO ALTO LITTLE LEAGUE BALLPARK, A Historical Site in the Heart of Our Residential Neighborhood i Signature --sofcci Name W y: ADDRESS qe covuole aNt<4 ro,a.,70,fekes. pr, AellpA&D/L, c,4,*O,) "-real) 1 '1 Ot,a 1746- rnI2A; 61104,40 11V/c) cibmd/A._, N124.1 40 teed(. (4114 g (4-0 ta qv.anl COdLizfrjut cp-P8a9 11-12, nr, Pfi 90 03 4tiftetr- M c con\ € cocip,e0�3�Si� P� CA 1L3c3 v.y/co_Ait, 7f6,7„; WE OPPOSE VEtt'x ., AT THE PALO A'1TC A Historical Site -..41`` '1*,,U Signature • dame '' i ;,; , • kr'fft...f.; 2-1014 au„). .5hi4A0' 4111 VERIZOS AT. THE :PALO ALTO LITTLr0A. ;i ALU ARK, A Histotical site Oahe ea of O r:'Res` Jeri a1 Nejgblisi0464 Signature. • Name • 7 .I, r .1-)N\itAcovi es."'" k. 3r1 5 4yzype., Pab illy, (vow , Original message From: Florinda Poggesi Date:09/09/2014 10:18 AM (GMT -08:00) Mrs. French, Mr. Reich, I live across the street from 3672 Middlefield Road and was disappointed to receive a flyer about an Architectural Review Board meeting regarding the proposed celltower next week, as I had hoped that this proposal had been killed already. I am opposed to the proposed celltower on the kids ballfield because the application for the Verizon celltower will clearly degrade the visual character of the site, substantially altering public view. In November, the $40 million Palo Alto state of the art Mitchell Park Library and Community Center opens after much delay. If this 65 foot monster is passed, the scenic view from both, including the Library's 2nd floor panorama windows, will be staring directly at this industrial monstrosity which will stand out like a sore thumb hovering over the treeline with its "lollipop" top and 18 inch non -tapering girth. Moreover, not only is this a new pole, wider and 5 feet taller but there will also be a new 9.5 foot tall 440 square foot shed with high voltage equipment and hazardous chemicals enclosed within, which clearly presents an "attractive nuisance" with children around all day each day and therefore presents a real danger to our children, the liability of which no party involved with this application is prepared to take on. One death or injury, and this would represent the end of Little League in this Palo Alto location. The existing storage containers on the property are an eyesore and I am not sure how they were originally approved in the first place. Now to add another 400 square foot facility directly visible and just feet from Mitchell Park and Covenant Community Childcare playground (and frankly Mitchell Park Library and Community Center) which enlarges the existing footprint substantially and pushes it into the parking area is just too much "industrial junk" for our residential neighborhood. The Verizon application states that this site will collocate multiple carriers, but the fact is that the barbell ontop of the new pole that is shown in the design has only the capacity to hold one carrier's equipment as specified in the latest application, not two. So this begs the question as to where the new antennae will go on this pole which has certainly been designed at an ugly 18 inches to maximize Verizon's sublease revenue by loading as many carriers as it can in the future. The answer is that the new antennae will go either above or below the current barbell, which means that with co -location as is stipulated in the application, there is reasonably foreseeable and significant cumulative impact of this 65 foot monopole which needs to be contemplated by the ARB and the City right now before we have multiple bulbous structures protruding from this very pole next year. In fact, it turns out that any subsequent extension or future modification of this tower is subject to the passage of the Middle Class Tax Relief and Job Creation Act of 2012, which makes it illegal for state and local governments to deny additional height and carrier antennae once a tower is erected. Moreover, this 2012 law requires co -location on existing towers. So this Architectural Review Board, Planning, and City Council decision needs to contemplate much more than just the visual impact that is proposed today. The Middle Class Tax Relief and Job Creation Act of 2012, Federal Statute Section 6409a says that once a cell tower is erected "local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station." The FCC subsequently published a Public Notice on January 25, 2013 to provide guidance on the interpretation of the term, "substantially change the physical dimensions," which they define as: 1. [t]he mounting of the proposed antenna on the tower would increase the existing height of the tower by more than 10%, or by the height of one additional antenna array with separation from the nearest existing antenna not to exceed twenty feet, whichever is greater, except that the mounting of the proposed antenna may exceed the size limits set forth in this paragraph if necessary to avoid interference with existing antennas; or 2. [t]he mounting of the proposed antenna would involve the installation of more than the standard number of new equipment cabinets for the technology involved, not to exceed four, or more than one new equipment shelter; or 3. [t]he mounting of the proposed antenna would involve adding an appurtenance to the body of the tower that would protrude from the edge of the tower more than twenty feet, or more than the width of the tower structure at the level of the appurtenance, whichever is greater, except that the mounting of the proposed antenna may exceed the size limits set forth in this paragraph if necessary to shelter the antenna from inclement weather or to connect the antenna to the tower via cable; or 4. [t]he mounting of the proposed antenna would involve excavation outside the current tower site, defined as the current boundaries of the leased or owned property surrounding the tower and any access or utility easements currently related to the site." With this federal law, the City's ability to have any control over subsequent carrier colocation or Verizon modifications and extensions on a monopole that is already installed is almost non-existent. For this reason, any such changes will be cumulatively considerable and not governed by Planning or the ARB. Therefore, the largest and most obtrusive potential tower must be assumed as part of the planning and ARB process for this initial Verizon application. The FCC has further provided a Notice of Proposed Rulemaking 13-122, release date September 26, 2013 paragraphs 90 through 134 note the same definition for "substantially change the physical dimensions" as the above -quoted Public Notice. This facility being proposed for colocation and once approved, there is nothing more that the City of Palo Alto or the neighborhood can do. This makes it imperative for Cumulative Impacts review under CEQA. California Administrative Code Section 15301 seems not to apply to this project at 3762 Middlefield Road for the following reasons: -It is not an "existing facility." This is an entirely new 2 foot diameter wireless monopole, taller than what is currently there, that is being erected on the property for the purpose of a fundamentally new use. It is clearly not in the category of "negligible or no expansion of use beyond that existing at the time of the lead agency's determination." -It is not a "replacement or reconstruction... (with) substantially the same purpose and capacity as the structure replaced." -It is not a "Conversion of a Small Structure" at 65 feet in size, dominating the landscape. In fact, the application under consideration proposes THE LARGEST wireless monopole structure ever on R-1 zoned property in the City of Palo Alto. Be assured that this is no run of the mill wireless application. The project indeed has impacts that are individually limited but cumulatively considerable when viewed in connection with past projects, the effects of other current projects, and the effects of probable future projects, particularly in light of the fact that Verizon has clearly signaled its intent to load additional carriers onto this property. In fact, in prior applications by other carriers, this property has been called the "crown jewel" This is a first step to a number of carriers coming into the property over the next few years and this needs to be considered at this decision juncture, particularly in light of federally ensured height and colocation extensions. For this reason, this initial proposal can not stand alone before the City for review in the absence of the cumulative effect of what modifications are likely/possible once this tower is erected. I oppose this celltower in our residential neighborhood for aesthetic reasons and believe we need now to take into account ALL cumulative future impacts for this proposed structure. Sincerely, Alberto Gen Isayama , Charlene Liao, Rod Creason 3739, 3751, 3775, Middlefield Road Palo Alto, CA 94303 Hilary Gitelman Director of Planning, City of Palo Alto 250 Hamilton Avenue Palo Alto, CA 94301 Dear Ms. Gitelman; April 26, 2014 As you know, the residential neighbors nearest the Little League Ball Park, located at 3672 Middlefield Road, have repeatedly reported violations of the Ball Park's Conditional Use Permit (CUP) for their 60' lights. These violations were reported to Judy Giaes and Brian Reynolds in the Code Enforcement Department, with you copied on at least one of them and your staff copied on many of them. Presumably, your staff has kept you apprised of the repeated complaints they have received about the CUP issued by your department. These violations have been continuous for the five years since the lights were installed. The Conditional Use Permit states, "The proposed lighting shall be allowed only when needed for a night game. Night games shall be allowed only twice per week, and will go no later than 9:00 pm., except once every other year for the regional all-star tournament in July, when the games would be allowed until 10:00 pm." To date, the reported violations have resulted in nothing but 'thanks for your email' type responses. On 3/15/14, we reported the lights were not only on for a third time that week, but also that there was no one at the ballpark — not on the field and no people or cars in the parking lot. Giaes responded with: "The Little League board does want to comply with their lighting restrictions. They've put new measures in place, but it seems fine tuning is needed. I wrote them today and advised that future violations will result in citations." In a second reply to the 3/15 complaint, Giaes quoted the Ball Park's response as, "Palo Alto Little League has responded to my notice based on your complaint. The Board representative said they were compliant last week and provided me with a report generated by their computerized lighting system. The report shows for the period of Sun 03/09/2014 — Sat 03/15/2014 the lights were on only..." and provided a cut and paste of lighting timing that is inconsistent with what was observed and reported in real time by the neighbors. Her final comment was, "Let me know if you have a response to this information." While we completely disagree with the Ball Park's "report generated by their computerized lighting system," the response from Judy Glaes is the more troubling matter. Are the neighbors being impacted by these CUP violations now responsible for not only monitoring compliance and reporting violations, but also somehow proving the violations days later when the City employees finally get around to reviewing the filed complaints? How, exactly, should we do that? Has the City endorsed the Ball Park's "computerized lighting system" to the extent it is deemed the de facto truth over actual human witness and reporting in real time? We disagree with the Ball Park's claims about the timing of the lights — we witnessed, and reported, the violations in real time. The City of Palo Alto is responsible for enforcing the CUPs they issue, and yet in this case the City's response to repeated CUP violations is to tell the parties to work it out amongst themselves. Given the multiple complaints and consistent pattern of violation, the City's response is extremely disappointing and a red flag for all CUP applications. The Bali Park was in violation on 3/15, and despite a promise of "future violations will result in citations," the next complaint on 3/22 received yet another response representing the ballpark's position, doing nothing to address the issue, and even suggesting the neighbors call the Ball Park themselves to complain about future violations. To quote Glaes' email, "Palo Alto Little League has advised us they are committed to complying with the CUP and have reviewed their entire game schedule to make sure they only have two night games each week. Palo Alto Little League President Kristin Foss told me you are welcome to call her directly with your concerns. You can reach Ms. Foss by calling 650.387.8473." This is the response from the City after many documented complaints and a promise that future violations will result in citations - reiterating the violating party's "intent" and telling the neighbors to deal with it themselves? Should we infer from these emails that the City has abdicated`' their responsibility to enforce the CUP they issued, despite its responsibility as dictated in the Palo Alto Municipal Code? How can the City of Palo Alto grant Conditional Use Permits with clear "Conditions" and then ignore the violations of those very conditions? No CUPs should be granted in the City of Palo Alto until this issue of enforcement is resolved. The City cannot have the power to grant CUPs and then ignore the "Conditional Use" violations. Had we known the city would fail so miserably in it's code -mandated enforcement we would have spoken loudly against the granting of this Conditional Use Permit, which is like no other in Palo Alto. Despite the arguments in favor of granting this CUP, nowhere else in R1 zoning are 60' lights allowed. The entire premise under which the lights were allowed is false, and now the City is refusing to take responsibility for a mistaken decision. Clearly, the Ball Park never intended to live within the constraints of the CUP, as five years of violations prove, and the City has allowed them to thumb their collective nose at the neighbors who unwittingly believed they understood the sacrifice they were making for the sake of Palo Alto Little League kids. In addition, Judy Glaes cites conditions that are not consistent with the actual CUP. The CUP states: • the lights can only be used for games, • games can run no later than 9:00 pm, and • there can be no more than two lighted games per week There is nothing in the CUP about additional lighting being allowed until 9:15 pm. There is nothing about allowing errors with automatic timers keeping the ball field lit when there is no game in progress and the entire property is empty. There is nothing about the Palo Alto Little League being allowed multiple infractions or that the neighbors are responsible for monitoring, reporting, and somehow proving the violations of the Palo Alto Little League's CUP days later. Additionally, per section 18.12.040 of the Palo Alto Municipal Code, Site Development Standards, "Recreational and security lighting shall be permitted only so long as the lighting is shielded so that the direct light does not extend beyond the property where it is located... Direct light from outdoor fixtures shall only fall on the walls, eaves, and yard areas of the site on which it is located. Outdoor fixtures shall have lens covers or reflectors that direct the light away from the neighboring properties." The Ballpark lighting is not shielded and shines directly onto adjacent properties, onto properties across the street, and into residential home windows, which is another long-term violation that requires a cure. The Palo Alto Little League was granted a very specific Conditional Use Permit for their 60' lighting (where only 12' lighting is allowed in R1 zoning) that the neighbors did not protest based on the conditions imposed and their support of Little League. The CUP has been consistently violated, and while no city agency has sought to monitor compliance, the neighbors have now complained repeatedly, and been soundly ignored by the City of Palo Alto. The Ball Park has been in violation of the 60' lighting CUP for five years, and continues to be up to and including this evening, when again the entire field was fully lit and there was not a single person anywhere on the property — not on the field, not in the clubhouse, and not even in the parking lot. Please see the attached photo. It is completely unacceptable that the neighbors have been forced to continually report, and then be told they have to prove, the Ball Park's abuse of their CUP. Please provide a response to this letter, with answers to the following questions: 1. What mechanisms of enforcement of the Ball Park's lighting CUP are in place, given the impact to the residential neighborhood? 2. How many times has the Ball Park been formally cited for violations of the lighting CUP, and what penalties have been levied? 3. When will the City provide an actual cure to the repeated violations by revoking the lighting CUP and require the lights be removed? 4. When will the variance that was approved in support of this CUP be revoked and the 60' light poles removed? On behalf of many neighbors, thank you for the important role you perform for the City of Palo Alto, and we look forward to you acting in the best interests of this City's comprehensive plan and enforcing the City ordinances. Charlene Liao Rod Creason Gen Isayama From: Yu Jackie <jackiejvuOvyahoo.com> Date: September 10, 2014 at 3:43:49 PM PDT To: "Russ.Reich: CitvofPaloAlto.org" <Russ.Reich «CityofPaloAlto.org>, "Amv.French;'c1CityofPaloAlto.org"<_Amy.FrenchilCitvofPaloAlto.org> Cc: "arb@cityofpaloalto.org" <arb cityofpaloalto.org> Subject: Request of Rejecting the 3672 Middlefield Road Cellphone tower proposal Reply -To: Yu Jackie <jackiejyuwahoo.com> City Planning of Palo Alto, I am strongly OPPOSED to the proposed Verizon tower at 3672 Middlefield Road in Palo Alto for aesthetic reasons, and ask that the CUP and application be denied. The visual impact will turn an otherwise residential neighborhood into an ugly industrial one. The 65 foot tower will be located in a very visible public place. It will compromise the harmonic look of the surrounding areas. Neighbors as far back as May have asked for photosimulations from the neighboring new Mitchell Park Library, as well as from their homes across the street, and a few points on Middlefield Road, but has neither received them from the City or Verizon..these visual impact issues have not been adequately explored in response to neighbor requests. Moreover, what is shown in current pictures is only for one carrier, whereas Verizon is asking for approval for multiple carriers.which will increase the visual nuisance and needs to be evaluated NOW. This level of visual nuisance will devalue the residential properties nearby, which constitute the majority of most residents' net worth, and the City is responsible to protect this. A celltower on a residential propel ly surrounded by a City Park, flagship Palo Alto Library and Community center, 3 of the major public schools in i the area (and many of the private), and many single family homes is not compatible with a residential neighborhood. I am aware of a neighbor who recently purchased a home across the street who should probably sue his realtor if this tower is approved, as there was no prior disclosure and this visual monstrosity will clearly affect his new home value. The 65 foot straight pole (unlike the others on the property) will be a different color.while it may be only one feature of the property, it is the ONLY feature that has nothing to do with baseball on the property. It is like the pimple at the end of your nose. It occupies only a small portion of your face, but it is what everyone looks at. And this will happen from the bleachers, from the residential houses across the way, from our new Library, and from folks who drive by. People would rather be looking at the beautiful treelined background to this ballpark than 65 feet of tower sticking up at them. While I am an avid cell phone user (Verizon and I get perfect coverage across the street, in what is supposed to be Verizon's dead zone), the placement of this tower is not compatible with the neighborhood and will as a result have a negative impact on property values. The issue is compatibility.this 65 foot monopole clearly presents a compatibility issue. See attached article for how other cities are evaluating visual nuisances such as this. I encourage the Council to DENY this Conditional Use Permit for the proposed tower at 3672 Middlefield Road, our Little League Ballpark. Regards, Jackie Commissioners overturn peitiiit for Lincoln City cellular tower By Steve Card Of the News -Times A permit approved for the construction of a cell tower alongside U.S. Highway 101 at the north end of Lincoln City was overturned on appeal this week by the Lincoln County Board of Commissioners. On May 14, the county planning commission approved a conditional use permit for the cell tower at the request of Trinity Wireless Towers, Inc. In June, that decision was appealed by Otis resident Richard King, who resides on Clancy Road, near the site of the proposed tower. A public hearing to consider this appeal took place during the regular meeting of the county commissioners Wednesday morning in Newport. 2 The first issue before the commissioners was a request that they hear the appeal "de novo," which is essentially holding an entirely new hearing. The other option is to hear it "on the record," which allows no new evidence but only testimony related to evidence already submitted into the record during the planning commission hearing. King argued that he had not had time to adequately prepare for and present a case in opposition to the proposed tower when the issue was heard by the planning commission. Although he resides fairly close to the proposed tower site, King is not within the area that received a mailed notice of the cell tower application. He said he learned about the application from a neighbor about a week before the planning commission hearing. Since the time the conditional use permit for the tower was approved, King has conducted tests to determine what the visual impact of the proposed 190 -foot, monopole tower would be. From the site of the proposed tower, he floated a large balloon on a 190 -foot tether line, to determine how high the tower would be. This balloon was photographed from various locations around the neighborhood. A picture of a cell tower was then superimposed over the balloon in the photos. It was mainly these photos that King and other opponents wanted county commissioners to accept as new evidence. When considering whether to allow this new evidence, Commissioner Jean Cowan said, "I don't think I have ever supported a de novo request...because I support the planning commission and the process that goes on at that level. (But) I really feel like, for the first time, this is an exception that I would grant." Cowan said questions about the visual impact issue were raised at the planning commission hearing, "and I don't think they were adequately explored." The other commissioners concurred, but decided to limit any new evidence to just those items that King and the other opponents brought to Wednesday's hearing to present. During testimony to the commission, King said, "I believe the tower will devalue my property a great deal." He said he owns 5 acres, and the proposed tower would be located 700 feet from his house and 500 feet from his property line. King also said that he thought photos presented by the applicant during the original hearing were misleading. He claimed that these photos, which also show a cell tower superimposed over an actual photo of the site, do not accurately portray the tower's height. "That tower should never have been approved in the first place," said King. "It is a lot less compatible with the area than the tower that was turned down by the planning commission in the Eddyville area." Another issue of concern raised by King is the recent publicity about cellular communications interfering with emergency services transmissions. "I'm on the fire board up there, and there is getting to be a concern about towers beginning to interfere with public safety," he told the commission. Richard Brandlon also owns property near the proposed cell tower site. He, too, said the cell tower would have a negative impact on the value of his property. Brandlon's wife, Sheila, raised the issue of Highway 101's designation as a 3 state scenic highway. "I don't think that tower is compatible with a state scenic highway," she said. "The tower should not have been approved, and was approved in haste." Sheila Brandlon added, "When the balloon was floated, I could see it from every north facing window in our house, on both the first and second floor." Kevin Brady, a representative of Trinity Wireless Towers, said he does not believe the photos he submitted during the planning commission hearing are misleading. "We have an expert in our office who has been doing photo simulations for eight years," he said, adding that the company goes to great lengths to accurately portray how a towers will look at a given site. "We're certainly not trying to be deceptive," he said. "We're simply trying to depict, in photo simulation, what the visual impact was going to be for those who have objections. "The Brandlons simply are not going to see a significant part of this tower from their property," added Brady. "I would suggest carefully weighing whether this devaluation of property is accurate or not." Brady made the argument that the cell tower represents only a small segment of the overall view. "If you look at the whole spectrum of the view corridor, this tower is only a small portion of that view," he said. In later response to this statement, Richard Brandlon said, "That's like a pimple at the end of your nose. It occupies only a small portion of your face, but that's what everybody looks at." And King said, "I'd sure rather be looking at the trees than at 100 feet of tower sticking up above them." Regarding cellular communications interfering with emergency services, Brady said, "The real problem with interference with public safety is not the industry, it's Nextel (a cellular communications company)." He said Trinity is willing to agree to a condition that Nextel not be allowed to lease space on this tower - which can accommodate up to four carriers - until concerns about its signal are resolved. During deliberation on this issue, Commissioner Don Lindly said he is an avid cell phone user and believes in the importance of having access to a signal. "But I think the placement of this tower is not compatible...with the neighborhood," he said. "I think it will have an impact on the property values." Lindly also believes that the presence of this tower, right next to Highway 101, is not in keeping with the intent of the state scenic highway designation. "I think what we put alongside this road in the future is something we need to look closely at," he said. Cowan added, "It seems to me that the issue is compatibility. I think the appellants proved that this can be seen and that it presents a compatibility issue." Commission chairperson Karen Gerttula agreed. "When you get down to the issue of the scenic highway, it's pretty clear in my mind that this tower would not be compatible on this highway," she said. Gerttula also raised a concern about the manner in which this issue was heard by the planning commission. Just five of the nine commission members were present at the hearing when the decision was made, representing a bare quorum. And those five were split on the issue, approving the conditional use permit on a 3-2 vote. "That's hardly a mandate," Gerttula said. A motion was made to uphold the appeal filed by King and deny the conditional use permit for the cell tower. The motion passed unanimously. Findings of fact and a final order reflecting this decision will be brought back to the commission's next meeting for approval. From: Barb Cooley <barb_cooley@yahoo.com> To: "Russ.Reich@CityofPaloAlto.org"<Russ.Reich@CityofPaloAlto.org>; "Amy.French@CityofPaloAlto.org"<Amy.French@CityofPaloAlto.org>; "hillary.gitelman@CityofPaloAlto.org" <hillary.gitelman@CityofPaloAlto.org> Cc: "arb@cityofpaloalto.org" <arb@cityofpaloalto.org>; 2Me <barb_cooley@yahoo.com> Sent: Wednesday, September 10, 2014 4:55 PM Subject: I strongly oppose the proposed 3672 Middlefield Road Cellphone tower Dear City Planning Department and Architecture Review Board, I received the postcard notice of the review of the Little League Ballpark cell tower application at next week's Architectural Review Board meeting in the mail yesterday. I want you to know I strongly object to the approval of this cell tower application. It is important to understand that this is not a typical cell tower application. If approved, this would be THE LARGEST CELL TOWER BY FAR IN ANY RESIDENTIAL NEIGHBORHOOD IN PALO ALTO. And in fact, it would be one of the largest on any property in Palo Alto, including industrial parks and manufacturing / warehousing locations. The mere existence of a 65' macro cell tower is incompatible with any residential neighborhood, and it is unnecessary here. If this monopole cell tower is approved by the ARB it will set the dangerous precedent of a huge communications tower on a residential -zoned property (R-8000) in a residential neighborhood. Where will the next one be requested? What grounds will the planning department or ARB have to deny the next one if you approve this one? The City of Palo Alto has been asked for years to establish policies around the cellular communications and the management of telecommunications providers — we need a plan that serves the best interests of all of our residents, not one that is dictated by telecommunications companies and individuals or groups seeking only personal gain. The visual impact of this out -of -place pole and the additional supporting structures, lights, and noise has no place in a quiet residential neighborhood, nor does it belong next to a children's park and our brand new (and long-awaited!) library with floor -to -ceiling windows looking directly toward this proposed tower. Far from "blending in," the top of the tower is just a few feet from the Eucalyptus trees - thus spoiling the view and the visual impact of the beautiful grove of trees. While Verizon may have finally proposed a "stealth" looking tower, future carriers and additional antennas will be barred from any type of city, community, or ARB review based on provisions in section 6409 of the MIDDLE CLASS TAX RELIEF AND JOB CREATION ACT OF 2012 which was signed into law by President Obama in 2012. If you are not familiar with this law, and the FCC's follow-up publication clarifying some of the terms, YOU HAVE A FIDUCIARY DUTY TO BECOME FAMILIAR WITH IT AS IT PERTAINS DIRECTLY TO ANY DECISION YOU MAKE ON THIS APPLICATION. I've included links to the FCC's website below. Many of us, including everyone in my household, have Verizon cellphones and have not had any coverage issue, so Verizon has not demonstrated that the tower is actually necessary. Additionally, there are a plethora of alternative sites Verizon should evaluate - all in commercial or industrial locations. My understanding is that within one mile of this location there are eight towers, and 27 within two miles, all 100+ feet tall which provides plenty of range and colocation ability. There are 19 single antenna sites within one mile (three over 65 feet tall) and 67 within two miles (11 over 65 feet tall) that should also be pursued as options. There are 16 multiple antenna sites within one mile (three over 65 feet tall) and 85 within two miles (31 over 65 feet tall)...so other carriers have not had trouble finding colocation spots. Over 14 existing sites over 65 feet exist within one mile, and 69 over 65 feet exist within two miles for the cellphone companies to collocate on. Again referring to the 2012 law cited above, the FCC's intent is to encourage or even require colocation of antennas on existing towers in order to prevent the exact thing that is happening here — new towers springing up simply because it is financially more attractive for telecom carriers to not have to work out agreements with their competitors. Verizon has failed to demonstrate why they cannot leverage an existing site versus create a new one simply because it's cheaper for them. You should also be aware of recent communications from the Department of the Interior, specifically the US Fish and Wildlife Service, which attacks the FCC regarding the adverse impact of cell tower radiation on wildlife. I've attached a letter from Albert M. Manville, II, Ph.D., C.W.B., Senior Wildlife Biologist, Division of Migratory Bird Management, U.S. Fish and Wildlife Service, to this email. With a quick search, I found multiple local bird species that are on the endangered list and could be harmed by this cell tower. We all know that the Ballpark is three acres of prime land privately owned by Little League of Palo Alto, a corporation, however it has operated as a public facility, more specifically an Outdoor Recreation Service over the past 65 years. Little League of Palo Alto discussed with the City to rezone as a public facility a number of years ago but backed out, presumably so they could pursue such commercial ventures on the land and potentially even sell the property in the future for millions. It is not clear to me why the zoning of this property is not consistent with that of Mitchell Park in the City's comprehensive plan - we're now seeing a slippery slope toward commercialization. The neighbors have experienced many violations of the existing lighting CUP over the past years: lights shine directly into bedroom and kitchen windows all the way across Middlefield Road today, evening and weekend games more than allowed violate the CUP as well as noise ordinance (neighbors hear the names of every single player announced on a team from the loudspeaker system every single), and there are huge traffic jams on Middlefield Road during games. The neighbors have been patient but now Little League wants a cell tower, which has pushed the neighborhood quite far enough. The Land Lease Agreement dated October 5th, 2010 between GTE MobilNet and Little League Baseball of Palo Alto, Inc states "right for ingress and egress, seven (7) days a week twenty-four (24) hours a day, on foot or motor vehicle, including trucks, and for the installation and maintenance of utility wires, poles, cables, conduits, and pipes over, under, or along a ten foot (10') wide right of way extending from the nearest public right of way, Middlefield Road. This Lease agreement also refers to yet another third party also having the same rights as listed above, all of which is quite an industrial nuisance for our residential neighborhood. The bottom line is that the according to the criteria ARB evaluates a project by, this project is not appropriate for this property: • Constructing a cell tower in this location compromises the current residences in this neighborhood and would also compromise the City's planned R-8000 use of this property, in direct conflict with the City's land use plan in the form of the Comprehensive Plan and Zoning Ordinance. The installation of a wireless pole at this location would render any future subdivision for Single Family Houses on this plot of land impossible, compromising the comprehensive land use designation of the site and irrevocably damaging the site's dominant use and value as designated by planning in the Comprehensive Plan, relegating it to more "stack and pack" high -density housing which would need to be located away from the pre-existing cell sites. And the City land use consideration by far supercedes any telecommunication use provision. ® The design of a 18 inch wide pole with a bulb on the top against a backdrop of trees and sky in a residential community and at the City's publicly used by over 1000 children each year, with no other Little League option, is fundamentally incompatible with the immediate environment. ® Impairs the historic character of this site and the industrial design is incompatible with such • Lacks a harmonious transition in scale and character on the site (incompatible with existing poles) as well as with the natural surrounding of Mitchell Park and the new Library ® Does not create an internal sense of order or design environment for neighbors, visitors (of which there are many thousands to this flagship Northern California Ballpark every year), and the general community by virtue of its siting ® Presents an incompatibility in materials, shapes, and colors versus adjacent and neighboring structures ® And environmental effects of having high voltage equipment is significant. The routine transport, use, and storing hazardous materials at a kid's ballpark are significant and challenging to insure when the site is within a few hundred feet of schools and libraries. They also create an industrial hazard to users of the site to contamination in soil or groundwater. Verizon needs to find another way to meet its coverage needs that is more compatible with site and surroundings. I applaud Verizon for its six -year "wear down the neighborhood" "find the point of least resistance" campaign through its contractor NSA, but now it is time for this to stop. The reason it has taken so long is simply the fact that there is no good place to hide a 65 foot tall cell tower at an open baseball field. It is fundamentally incompatible with this residential location and the character of this historic property, and we now need to tell Verizon so and that they need to stop harassing our community. By the way, this in no way denies their right to find another location within the context of the Telecommunications Act of 1996, but precedent amply shows that is entirely within the authority of the City to make this decision without the risk of being sued (which unfortunately has been threatened by the applicant). The Telecommunications Act of 1996 also states that nothing in the Act shall affect the ability of a State to impose requirements necessary to protect the public safety and welfare, and safeguard the rights of consumers. We want to ensure you understand that we feel very strongly that the proposed cell tower is a significant risk to our family's and neighbors' safety and welfare, as well as a 20-25% (or more) negative impact to our home (and primary investment) value. Please carefully consider how the city can, and should, protect the health, welfare, and financial investment in our neighborhood. The most important court cases on this issue, which are binding law for all of California, are the Ninth Circuit Court of Appeals' MetroPCS v. City and County of San Francisco (2005), Sprint PCS Assets, L.L.C. v. City of Palos Verdes Estates (2009), T -Mobile USA Inc. v. City of Anacortes (2009) and Sprint v. County of San Diego (2008) decisions. The MetroPCS decision may be found by searching the Ninth Circuit Court of Appeals website at http://www.ca9.uscourts.gov/ (it's a 2005 decision). It's worth reading through this because it spells out the authority a local government has to say 'no'to a cell tower like this one at 3672 Middlefield Road. The Sprint PCS Assets v. City of Palos Verdes Estates decision builds upon MetroPCS to discuss the authority of a local government to deny antennas proposed for public rights -of -way (e.g., on light and utility poles) for aesthetic reasons. The T -Mobile USA Inc. v. City of Anacortes decision also builds upon the MetroPCS decision with regard to a local government's responsibility under the 'least intrustive alternative' language discussed in MetroPCS. We need to deny the application for the cell tower at the Little League Ballpark and have Verizon find an existing pole on which to colocate. Thank you for your time and consideration in this matter. -- Barb Cooley Links to items referred to above: MIDDLE CLASS TAX RELIEF AND JOB CREATION ACT OF 2012: http://www.gpo.gov/fdsys/pkg/PLAW- 112pub196/pdf/PLAW-112pub196.pdf Links to items referred to above: MIDDLE CLASS TAX RELIEF AND JOB CREATION ACT OF 2012: http://www.gpo.gov/fdsys/pkg/PLAW- 112pub196/pdf/PLAW-112pub196.pdf Additional FCC Clarification on the meaning of "substantially change the physical dimensions:" Local Review of Collocation Applications, Interpretive Guidance Local Review of Collocation Applications, Interpretive G... Local Review of Collocation Applications, Interpretive G... review byahe -- be 5 From: Keiko Isayama <keikoisayamaicyahoo.com> Date: September 10, 2014 at 14:40:00 PDT To: "Russ.Reich a CitvofPaloAlto.org" <Russ.Reich c CityofPaloAlto.org>, "Amv.French :Cityo#PaloAlto.org" <Amy.French ✓CityofPaloAlto.or6> Subject: Neighbor opposition to 3672 Middlefield Road Celiphone tower Reply -To: Keiko Isayama <keikoisayama c vahoo.com> Mr. Reich, Mrs. French, I live across the street from the Little League Ballpark at 3672 Middlefield Road and just received a notice of ARB hearing yesterday. This letter is to strongly object to the project on the basis of significant aesthetic concerns. This is and has been for 65 years Palo Alto's showcase Little League Ballfield where teams from all over California come each year to play, with Palo Alto as host for California -wide tournaments. This type of unsightly visual nuisance which is being proposed is not at all how we'd like to portray our youth facilities in the City. Let me outline why, below. 65 feet of straight 18 inch wide vertical steel against a natural green Eucalyptus tree forest backdrop is extremely unsightly and totally contrasts i to any other lightpole on the property which has a base of 12 inches or less and tapers to its full height. And the light color (also different color from any of the other poles on the property) contrasts against the dark tree background and would be very destructive to the aesthetic of this historic sunken diamond ballpark. The fact that this new pole is a different shape from top to bottom is of real concern: much wider, taller, with a bulbous structure on the top, and non -tapering makes it entirely distinct in the visual landscape of the property, and makes one immediately recognize the this proposed pole's function is not for lighting the field during night games but rather for commercial purposes on this residentially zoned property in this residential neighborhood. This proposed 65 foot monopole would clearly be the only thing in the Ballpark that is entirely unrelated to baseball..it is not easy to hide such a monstrosity, which is why we must now after so many years finally tell Verizon that an open space like a ballpark in a residential community is not the right place for this structure. As one approaches the property or drives by, the rear corner is the most visible part of the field. Driving by on Middlefield Road, this is the area that is most exposed, with the least visual tree obstruction from the street. In fact, the way the field is set up, this comer happens to be the focal point of the property almost from any angle, framed by the tree grove in the background. There are only two places to park on the property, one by Middlefield Road and the other by the side of the batting cages in right field. Both of these stare straight at this corner of the property where the 65 foot monstrosity would loom, in a clear visual shot, the most visible spot from anywhere on the property. And from a player's perspective, this massive hammer -shaped monopole would hover above during games with a distinctly industrial feel. It is unnatural to have a barbell top-heavy shape above lights which makes it seem like it could fall at any moment into the neighboring Covenant Childcare, onto the Ballpark storage structures or the field itself (which it actually could with this area's clay soil and high water table in the case of an earthquake like the one we recently had in Napa). It looks more like a water tower than anything else, none of which exist in this area. The increase of the size of this celltower monopole which would replace the existing lightpole from 60 to 65 feet is significant, as the head would protrude above the treeline and therefore stick out like a sore thumb. For this reason, neighbors have asked numerous times for photosims from our new Mitchell Park Library first and second floors, from Covenant Children's Center, and Middlefield Road at the street/bleachers level, but with 110 response. The extra 5 feet actually makes all the difference visually and makes it plainly visible (trust me, I have checked) from the neighboring AchieveKids playground, the Covenant Childcare playground, the adjacent residences 2 across the street on Middlefield, East Meadow which is the next street over, as well as prominently from the bay windows of our $40M flagship Palo Alto Library and Community center.as a beacon of ugly intrusion in our residential neighborhood. Such a 65 foot tower would clearly mar the field of vision and visual landscape, as there is no way from the bleachers to watch a ballgame from the 3rd baseline and not be staring at such a tower. This also happens to be exactly the same view of the multimillion dollar two story houses across the street, which really irks us and significantly degrades the value of our familys' largest investment (and by implication the same for miles around, given comps). In fact, a neighbor who recently purchased a home across the street from the ballpark should probably sue his realtor if this tower is approved, as there was no prior disclosure and this visual monstrosity will clearly affect his new home value. Equally importantly, this Little League Ballpark at 3672 Middlefield Road is a historical property that has been in consistent use for the past 65 straight years exclusively as a children's ballpark. This 65 foot celltower would be the first commercial incursion in the property's history and will be painfully, visually obvious. The Ballpark founders' families have nominated to Amy French and the Historic Resources Board (HRB) this property to the Palo Alto Historic Inventory and have applied for a hearing date with the HRB at the next opportunity. This is in process (now accelerated, given this celltower application for the same site), and the site deserves this recognition after so many years. However, it should be noted that an approval of this 65 foot tower proposal on this historic property will impede the property's ability to be included in the California Historic Register and the National Historic Register, both of which it is eligible for. For this reason, this latest celltower application needs to go through a new Section 106 process (even if done many years ago, as the design has changed) in order to secure an FCC license and get approval of not only the State Historic Preservation Officer but also the local Historic Association. A Section 106 process triggers CEQA. And for all the right reasons, to make sure that a thorough alternatives analysis has been conducted so that we don't inadvertently destroy the cultural landscape of a local historic property. I recognize that our two historic officers in the City of Palo Alto have recently departed and now Planning officer Amy French responsible for the celltower application also now wears the hat of Palo Alto Historic Officer, so it will be important to have the right checks and balances in this process to make sure that the historic element gets the attention and priority it needs relative to planning's evaluation of the Ballpark's application in favor of commercial interest. Again, for aesthetic and historical reasons, a 65 foot celltower at 3672 Middlefield Road makes no sense and I will vehemently oppose it. Regards, Gen Isayama Keiko Isayama 4 September 1, 2014 Palo Alto Planning, I object to the proposed celltower at the Little League Ballpark at 3672 Middlefield Road for safety reasons given the presence of hazardous materials within feet of our children in Verizon's proposal. Verizon has disclosed in its application that such materials exist in significant quantity in its equipment shed. You will find below articles from various industry and government web sites that discuss safety hazards and liability issues with these types of wireless telecommunications installations. These include a) chemical battery issues with back-up batteries: problems including fire, explosion, and leaking of sulfuric acid as well as b) liability for RF interference with a variety of industrial, medical and home electronic equipment in the neighborhood. While Verizon has not yet disclosed the detail around its batteries, this material provides substantial evidence in written record regarding key public safety issues in order to deny this permit on public safety grounds given its in close proximity to schools, homes, and day care facilities The equipment shelter/hut that is required for the operation of the antennas presents a clear hazard to the safety of the neighborhood. The cost of liability insurance to cover all of these hazards is not something that either Verizon or the Little League of Palo Alto organization has accounted for. I encourage the City of Palo Alto to REJECT the 65 foot celltower proposal at 3672 Middlefield Road in Palo Alto. Signed, p7 -z --7--/e / 0 g-,4 7 <95 , dd& PGA /4/, ,, 624 9v ?.3 BATTERY HAZARDS Several of the authors of these articles were asked to describe a typical battery array for a cellular or PCS base station supporting an antenna site. Typically there are 16 one hundred pound, Lead -Acid 48 volt batteries that are most often filled with sulfuric acid. Their chemistry is similar to automobile batteries. There is some controversy as to whether the EPA regulation which requires notification of the presence of hazardous materials to local fire and safety authorities should apply. Sulfuric Acid is on the EPA list of "Extremely Hazardous Substances" and is present in an array of 16 batteries in sufficient amount to require this notification. As more and more antennas are sited on rooftops, in steeples, and in residential neighborhoods, notification becomes more critical. http://www.calicorp.corrm/articles/batteries-hazards.html Lead -Acid Battery Hazards http://www.ncs.gov/n5_hp/information_Assurance/HazSec2.htm Web site of the National Communications System (NCS). In 1962 after the Cuban missile crisis, President Kennedy directed the National Security Council (NSC) to form this interdepartmental committee to examine the communications networks and institute changes. NCS keeps on -going records of all hazards that have affected telecommunications systems in the United States. From this on-line NCS Report - 2.0 NATURAL AND TECHNOLOGICAL HAZARDS: This section provides information concerning major natural and technological hazard threats to NS/EP telecommunications and supporting systems. 2.2.1.3 Experiential Data Properties wholly dedicated to computer or telecommunications activities are actually a comparatively small part of the U.S. fire problem. From1990 to 1994, computer and data processing centers annually averaged 29 structure fires, no reported deaths, 1 injury, and $1.31 million in direct property damage. All communications, defense, and document facilities combine - including defense radio and radar sites, police and fire communications centers, telephone exchanges, and document centers and record repositories- annually averaged 249 structure fires, no deaths, 6 injuries, and $7.21 million in direct property damage. The large problem actually occurs in electronic equipment rooms or areas where more than 1,000 structure fires are reported each year to U.S. fire departments. See section entitled "1994 Los Angeles Telephone Exchange Fire" and paragraph under Table 2- 8 Causes of Fires at Telecommunications Facilities. http://www.telecomclicfccom Type in "A battery for all seasons?" in the SEARCH box. Click on GO. http://www.calicorp.com/advisory,htm Advisory: Lead -acid Batteries http://www.telecomclick.com Type in "Power Struggle: Battling over battery technologies" in the SEARCH box. Click on GO. http://www.zomeworks.com/tech/H2/H2FAQ.html Hydrogen FAQ [This article discusses how complex proper venting of a battery shelter/room is. This company sells shelters as well as designs to properly vent existing shelters.] "What is the danger of explosion during battery charging? Battery rooms and cabinets are notorious for explosions when hydrogen created by electrolysis and mixed with oxygen is ignited by a spark. The proliferation of back up batteries at communications sites has spread the hazard from the private concern of the battery's users to the public at large. Battery cabinets, vaults, and rooms are now scattered like time bombs all around the world, many where explosion could injure or kill unaware bystanders. The danger is not imagined. Many vaults have exploded and recently a communications shelter in Yuma, Arizona, exploded shattering the windows of a neighboring house..." http://www.powerquality.com/art0060/artl.htm From the industry journal, Power Quality Journal. From the authors of these various articles we learned that a typical cellular/PCS equipment cabinet/hut contains 16 automobile -type batteries to back up the generator that is operated by diesel. The cogent point in this article is in the first paragraph: ". . . Most battery owners, including some of the biggest companies is the country, do not follow IEEE recommendations. They claim that the full program is too expensive. That is short-term thinking and sooner or later they will pay for it." http://www.caiicorp.com/articles/open-house.html Fire Department Safety Officers Association - "Open House" Battery Incident http://www.firehouse.com/news/2000/6/14_APstate.html Fire Knocks Out State Department Phones http://www.wa.gov/lni/news/pr051800.htm All telecommunications contractors must register with Labor & Industry by June 8 http://www,telecomclick.com Type "Powering wireless telecom basestations" in the SEARCH box. Click on "GO." http://www.ospmag.com/features/1999/h2_ohno,htm H2-OhNo! Hydrogen Build -Up Can Cause Battery Cabinets to EXPLODE http://www.telecomclick.com Type in "Flirting with disaster" in SEARCH box. Click on GO. http://www,calicorp.com/articles/osha_special_equip.htm Electrical Safety Requirements for Special Equipment - OSHA Regulatory Profile - Special Equipment http://www.calicorp.com/articles/batteries-build1ngs.html Lead -Acid Batteries in Buildings ENVIRONMENTAL HAZARDS OF BATTERY CHEMICALS http://www.calicorp.com/articles/osha-articleshtml Industrial Lead -Acid Batteries Are Not Considered "Articles" http://www.calicorp.com/epa_news_release.htm EPA News Release - Ten Telecommunications Companies Voluntarily Disclose and Correct Environmental Violations http://es.epa.gov/oeca/are/enfaiert/vol3num6.html EPA's "Audit Policy" Offers Opportunity for Telecommunications Industry to Remedy Violations http://www.americasnetworlccom/issues/2000supplements/20000915cc/cc20000915_finesprint.ht m Smart builders: The Fine(s) Print - EPA takes kindly to telecom companies that catch and report their own mistakes City Council, ARB, Planning, I have a significant concern over the safety of our children playing on the Little League Ballfield at 3672 Middlefield Road if the celltower that is proposed by Verizon passes. And 1 do not believe that Little League of Palo Alto has sufficient liability insurance to cover this concern. Do not for a moment think that this is your average minor city cellular facility application....indeed, if approved, it would be THE TALLEST CELLTOWER IN A PALO ALTO RESIDENTIALLY ZONED AREA... and one of the handful of tallest towers in the entire city... this is no radio affixed to the top of a utility pole. For this reason there are a number of things that must be taken into consideration from a safety perspective when approving a high voltage 65 foot 18 inch wide monopole. The likelihood of lightning with celltowers which stand as the highest pinnacle in the area (which this proposed celltower would be) is dramatically increased, which is not as publicly known but the attached documentation amply evidences. As near as the top of this proposed tower would be to the eucalyptus tree wall separating it from Mitchell Park (ie only a matter of 5 feet)...this represents a significant fire threat from lightning and fire to the trees and to the adjacent buildings, including residential homes. Please review the attached substantial written evidence which substantiates this threat to fully understand the risks which I am mentioning. For reasons of safety, please reject this celltower application at 3672 Middlefield Road. Sincerely, flai-a r°4 7/W c.:( -7-7y---3 4:3 Strike back at lightning By Vicki W. Kipp Site Management & Technology, Sep 1, 2002 While humans have 1 in 6,000 odds of being struck by lightning, towers have 1 in 1 odds of being struck. It's basically inevitable. How lightning works When the equilibrium of electrical charges between the atmosphere and the earth becomes unbalanced, nature uses lightning to restore the balance. The atmosphere is composed of atoms. Warm air moving upward and atmospheric turbulence from storms cause atoms to dissociate into separate groups of charged ions. Negatively charged ions accumulate at the base of the clouds in the lower atmosphere while positively charged ions ascend to the upper atmosphere (Figure 1). Normally, the surface of the earth has a negative charge. However, when negative charges build up in the lower atmosphere, they repel the negative charges on the surface of the earth. Consequently, the earth takes on a large positive charge. Since opposite charges attract, the negative ions in the lower atmosphere are now attracted to the positive surface of the earth. Negative ions are very light so they can move towards positive charges with speed and ease. The negative charges move swiftly toward the earth, creating a phenomenon known as lightning. As the negative ions head toward the ground, positive ions on the surface of the earth are drawn upward slowly. Initially, the ions flow slowly because air is a poor conductor. However, the attraction between the negative and positive ions becomes so great that they overcome the resistance of the air. When negative ions move down through the air, their flow is called a "step leader" or "pilot streamer" because of the erratic path that electrons take as they seek the earth. The negative ions flow downward until the resistance of the air becomes too great, and then they travel horizontally, followed by further downward movement. Finally, the downward moving negative ions are met by the upward moving positive ions. When negative and positive ions connect, a conductive path from the cloud to the ground is formed (Figure 2). Negative ions hurry down the path creating an observable stroke. New negative ions flow into the void left by the discharge of negative ions. These new negative ions rush along the path. Additional negative ions come from neighboring clouds. Negative ions continue to flow until equilibrium returns between the atmosphere and earth. There is a long-standing argument about whether lightning strikes up or down. Although the negative charges are moving downward, it is the fast-moving charges that create the light. Hence the visible lightning stroke in fact moves upward. Lightning seeks towers Observing an NTSC antenna from the Candelabra as it lay on the ground during tower work, I noticed that the antenna grounding rods were covered with sizzle marks where they had been branded by the tips of lightning bolts. According to Winton Wilcox of ComTrain, "Towers are struck by lightning more than any other man-made structure." Towers are frequent targets for lightning because they are so high above ground level. For an optimum coverage area, broadcast towers are intentionally designed to be taller than neighboring buildings. Besides the height factor, towers attract lightning because they are built of conductive steel. Positive ions from the earth can travel up a steel tower much easier than they could travel up through air alone. The highest point at the top of the tower is where the positive charges will accumulate. Lightning damage When lightning strikes a tower, various types of damage can occur. Under certain circumstances, a lightning strike could lead to collapse of the tower structure. Lightning can melt the insulation on the guy wires or cause cracks in the concrete guy anchor. Transmission lines and voltage sensitive devices can be damaged by large peak voltages from lightning. Electrical current from lightning can generate heat and transfer energy. Guyed towers can tolerate lightning better than self-supporting towers because guyed towers deflect the lightning charge down the guy wires to the ground. Assuming that the guy anchors are grounded properly, a great deal of energy is dissipated into the ground away from the base of the tower. For proper grounding, grounding components should be attached to the guy wires above the preforms, turnbuckles, and anchor heads. Minimizing damage Grounding allows some control of where energy will go when lightning strikes a tower. Experts remind us that grounding is meant to be a lightning protection system, not a lightning prevention system. Grounding involves applying a system to allow an electrical surge to pass through a conductor rather than lingering at and causing damage to the conductor. Grounding also shields tower structures, such as a fence or site building, from the antenna's radiation pattern. This prevents the tower accessories from absorbing and then re -transmitting RF, causing a skewed signal pattern. Believe it or not, there are some people who are opposed to grounding systems. They argue that installing a grounding system provides a path to the top of the tower for positive charges to climb. The anti -grounding faction feels that grounding almost guarantees that the tower will be struck by lightning. Grounding advocates point out that if a tower is struck by lightning and a grounding path has not been provided, the tower will be subjected to the excess charges. They claim that it is easier and more cost-effective to build lightning protection and grounding into a tower site than to repair lightning damage. Grounding system A successful lightning grounding system needs to rapidly disperse large quantities of electrons from a strike over a broad area. A tower grounding system must meet the specifications set in the 1996 TIA/EIA-RS-222-F standard. To be effective, the grounding system requires a low impedance path to earth, and a low resistance interface with earth ground. A tower grounding system (Figure 3) usually includes a lightning rod or lightning dissipater, secondary ground, primary ground, and ground rods. Lightning rod A lightning rod, or collector, is placed at the top of a tower to extend at least two feet above all other tower hardware. The purpose of the lightning rod is to receive a strike and pass it through to the next element of the grounding system. The rod is usually made of copper clad steel. Lightning dissipator An alternative to placing a lightning collector on top of the tower is to place a lightning dissipater on top. A dissipater acts as a shield by reducing the potential between the tower and a storm cloud. Performing controlled leakage of the positive charge, it transfers the positive electrical charge to nearby ionizing air molecules. In theory, this action reduces the likelihood of a strike. If the electric charge accumulation rate at the top of the tower significantly exceeds the dissipation rate and lightning strikes, the dissipater will redirect the lightning away from equipment toward a safe, planned path to earth. Secondary ground A conducting connection should be run between any tower appurtenance such as an antenna, bracket, or platform and the tower. For transmission line, a grounding connection should be made at the top of the tower, bottom of the tower, at the entry port to the building, and at every 200 feet of run. This connection is called the secondary ground. The secondary ground provides a low resistance path to ground. It discharges static charges, lightning, or other electrical phenomena away from the tower structure. The term "down lead" is often used to describe the wire that runs between tower attachments and the primary ground. Copper wire is often used for the secondary ground. Unfortunately, rain can cause a reaction between the copper strap and the steel tower that leaches away the copper. Primary ground The primary ground is the link between the tower and the earth or a conducting element used in place of earth ground. Grounding straps (Figure 4) run as radials between the tower structure and the ground halo. Flat wire is more effective than round wire for grounding straps since it has greater surface area. Bus bar A bus bar is a piece of highly conductive copper or copper -clad steel that collects energy from numerous sources and conducts it down a common path to ground. With dimensions of % inch thick, 4 inches wide, and 18 inches long, a bus bar is connected to the ground with a ground strap. A bus bar should be mounted to the exterior of the building where transmission lines enter the building and to the interior of the building just below the entry ports. The exterior bus bar is insulated from the building and grounded to the ground halo. Transmission lines are grounded to the exterior bus bar. The bus bar that is mounted inside the building is called a ground window. The repeater equipment; entry hatches for transmission line (if they are a conductive material); door frames, window frames, ventilation louvers, and any other sheet metal surfaces; cable trays; AC power line and breaker panel box; telephone lines, blocks and related parts; any peripheral conductive item within 6 feet of any other conductive surface; metal battery racks; utility conduit and pipes; transmitter combiner; receive multicoupler; and any surge suppressor equipment should all be grounded to the common collection point of the ground window. Ground halo The purpose of a ground halo is to allow single point grounding. Single point grounding directs all charges down one path to one exit point. A ground halo is often built around a site building and is also built below ground to connect the ground rods. The underground ground halo connects to and transfers energy to all of the ground rods. Foundation grounding Controversy surrounds the premise that reinforcing bar in the foundation of site buildings should be grounded. Some argue that rebar is insulated inside the concrete, and does not need to be grounded. The debate centers on the conductivity of concrete. Under normal circumstances, concrete is not conductive. However, when the ground is wet and lightning strikes, rebar that is close to the surface could collect energy. There is a risk that the energy passing through concrete could turn the water portion of the concrete into steam, cracking the concrete. Ufer grounding, named after the engineer who originated the concept, can protect against this risk. With Ufer grounding, the rebar is grounded inside the concrete block, and a ground strap is run along the underside of the foundation to a ground rod. Charges in the concrete are dissipated down into the earth. Ground rods Ground rods are conductive metal poles placed in the ground for the purpose of dissipating electric charges to the soil. They are made of steel and coated in a stainless cover of copper cladding or galvanized coating. The coating on the rod prevents rust. This is important since rust is a poor conductor of electrical charges. A typical ground rod has a diameter of one-half inch to one inch, and length of eight to ten feet. Most ground systems contain at least four ground rods. The successfulness of a ground system is influenced by the depth of the ground rods, conductivity and resistivity of the soil, and distance between the rods. Ground rods are inserted horizontally underground at a depth of at least two to six feet below ground level. Moist clay bearing soil is desirable for setting up a grounding system. The conductivity of the soil can be improved with soil treatment techniques such as electrolyte fill. Installation of ground rods requires that the rods be driven into the ground forcefully instead of placing the rods in pre -drilled holes. Pressure must be used when inserting the rods so that the soil will be compacted to form a connection with the surface of the rod. When ground rods are installed, the correct distance between the rods must be determined for proper placement. Traditionally, the minimum separation between rods should be greater than the sum of the lengths of two adjacent rods. The sphere of influence(Figure 5) of a rod is the amount of soil used in dissipating the charge from one rod. The area of the sphere of influencehas a radius and depth equivalent to the length of the rod. For example, the sphere of influence of a 10 -foot ground rod would have a diameter of 20 feet around the rod and would be 10 feet deep. It is essential to determine the correct separation distance between rods. When rods discharge they will saturate the soil in their immediate area. Inefficiency will result if a rod tries to dissipate charge in soil already saturated by another rod. If the charge being dissipated by a ground rod is too great for the soil to absorb, the rod could actually fuse into glass. A glass ground rod makes a great insulator, and a poor conductor of charges. Conclusion Humans face a relatively slim risk of being struck by lightning. If such misfortune should occur, there is a lightning strike survivors support group that they can join. Towers have an extremely high risk of being struck by lightning. There isn't a support group for towers, but there is a multitude of grounding hardware available to make a lightning strike less harmful. © 2003, PRIMEDIA Business Magazines & Media Inc. All rights reserved. This article is protected by United States copyright and other intellectual property laws and may not be reproduced, rewritten, distributed, redisseminated, transmitted, displayed, published or broadcast, directly or indirectly, in any medium without the prior written permission of PRIMEDIA Business Corp. Lightning strikes rooftop mobile phone and paging antennas Two people sent to the hospital Mecosta County, Michigan 7/19/02 Reported by WPNB-WTOM TV Traverse City, MI Two people are sent to the hospital after lightning strikes just blocks from a crowded sidewalk sale. The lightning struck near the corner of Maple Street and Michigan Avenue in downtown Big Rapids, Thursday afternoon. Fortunately no one at the outdoor sale was injured, but employees at some nearby businesses were not so lucky. Some workers had just headed outside to grab a bite to eat when they saw the sky light up. Brian Goodenow, manager of Net -Port, "It was just like an explosion and then accompanied by a crackling sound you'd associate with electricity. That's when i knew it had hit our building or very close to our building." The lightning bolt actually struck the tower directly on top of the building that holds Net -Port and Select Cellular and Paging. And the scary bolt did more than just physical damage to the stores. It sent a shock to employees below. A woman who was sitting at a workstation had the electricity travel through the keyboard and apparently into her body. She started feeling a little faint and co-workers drove her to Mecosta County General Hospital where she was kept overnight for observation. Next door at Select Cellular, the only employee in the business at the time drove herself to the emergency room feeling some of the same effects. In addition to the injured employees, a lot of the Net -Port business equipment was damaged by the strike. Three workstations were also destroyed by the power surge. And Net -Port employees are still finding glitches around the office as they try to cleanup. But they say none of their major. Health officials warn to stay away from water and electrical equipment during storms. And if you are outside, get low to the ground to avoid being struck by lightning. NATE Conference Speakers Address Economy, Safety And Advances By Mark Dziatkiewicz February 25, 2002 (c) 2003, Reed Business Information, a division of Reed Elsevier Inc. All Rights Reserved. ORLANDO, FIa.Despite the doldrums in the wireless industry, the tower sector is proving once again there's no bad time to be concerned about safety. Neither the dampened economy nor travel worries kept a record crowd of tower professionals from the National Association of Tower Erectors conference and exposition here last week. Dedicated to improving safety and promoting uniform standards throughout the tower construction, service and maintenance industry,, the group got down to the nitty-gritty in its seventh annual gathering. Keynote speaker Larry Nelson, executive vice president of development and general manager at CommScope Inc., kicked off the proceedings by putting a positive spin on the wireless industry's current economic downturn. Pointing to the traditional growth curve for new technology, Nelson suggested the "wireless industry is fundamentally sound" despite its current position. He applauded the assembly of infrastructure builders for contributing to what he says will go down in history as "a great monument to technical achievement." Nelson also touched on the industry's concern and caution surrounding ultrawideband technology. Considered by many to be potentially disruptive, it nevertheless could prove a boon to the tower industry because many antenna sites are required, he said. Staying true to its focus on safety and construction, the conference featured presentations by the Occupational Safety and Health Administration and National Institute of Occupational Safety and Health. The discussions provided a rare opportunity for both sides of the safety issue to explore their concerns together in a neutral, non- worksite environment. Even topics such as rope and rigging safety demonstrated ongoing technological advances are worth considering for a safe work environment. Willie Crear, a presenter from Sterling Rope Company Inc., discussed the wide variety of rope types and their potential tower applications. Crear stressed that cost shouldn't be the only factor when selecting from various rope options because manufacturing methods often determine the ultimate price, not tensile strength alone. But rope pricing does vary widely, from low -end nylon up to Kevlar and zylon at nearly 60 times the cost. Tensile strength and weight are the overriding factors in choosing the right rope for a particular application. In tower situations, weight is often a major consideration because of its relationship to climbing fatigue. Crear offered a number of helpful tips on keeping ropes in good condition, including avoiding prolonged exposure to sunlight. Saltwater and rope also can be a dangerous combination if the rope is later exposed to cold or freezing temperatures. And while it may sound like rope trivia, a single knot can reduce a rope's tensile strength by up to 40 percent. Grounding towers and equipment for lightning protection were other topics. Despite decades of experience with towers and lightning strikes, it still is a subject that often is misunderstood. Ernest Duckworth, strategic accounts manager for SNC Manufacturing Co., spoke at length about the damage caused by lightning strikes, some $26 billion annually, a good portion of that to telecommunications equipment. Suggesting that lightning strikes and grounding issues aren't totally understood even by telecom engineers, Duckworth cited an example of a cell site building that was destroyed after a nearby tower was hit by lightning. He attributed it to ground potential rise, a phenomenon that kills people and animals without a direct lightning hit. Duckworth contends that telecom equipment is not protected the way it should be and national codes provide little in the way of guidance. The issue becomes more important and critical, he says, as operators place equipment at the top of towers and move to the more sophisticated, and costly, electronics associated with next - generation wireless equipment. FIRE: Blendon firefighters cut through the roof of Russ' communications to get at the fire, Monday afternoon. Sentinel/Brian Forde Web posted Tuesday, July 24, 2001 Lightning burns fire chief's home By NATE REENS Staff writer A lightning bolt to a 199 -foot communications tower likely caused a Monday blaze at the business and home of Biendon Fire Chief Russ Hirdes and his wife, according to Assistant Chief Tom Meeuwsen. The flames, which ignited at about 10:30 a.m. and kept Olive firefighters occupied until 4 p.m., severely damaged the video, electronic, and bait and tackle shop Hirdes runs from a building attached to his home at the southwest corner of Port Sheldon Street and 96th Avenue. Hirdes' wife also operates a real estate and lease management business from the building, according to the couple's daughter, Laurel von Douschutz. Hirdes, a 27 -year veteran fireman, was in Lansing for a firefighting convention and could not be reached Monday afternoon, according to his daughter and Meeuwsen. "The radio service and equipment is likely a total loss, but the structure itself appears to be in good shape," Meeuwsen said. "We'll have to wait until he gets back to determine exactly what works and what doesn't." Firefighters battled the blaze by ripping off the building's siding and cutting holes in the roof to gain access to the persistent flames, which shrugged off heavy rains and caused "light structural damage to the attic." Meeuwsen said Hirdes' home received smoke damage, but was otherwise unaffected by the fire. "My mom will probably cry and I don't know what Dad will do," a rain -soaked von Douschutz said at the scene of the fire. "He had a lot of inventory in there and has been in business for 30 years." Von Douschutz said the tower, which stands adjacent to the business portion of the structure, has been hit before during severe thunderstorms. Meeuwsen said Hirdes would be glad his department saved what they were able to, considering the force also was aiding Robinson Township firefighters battle a large barn fire near 112th Avenue and Pierce Street. "I think he'd be pretty proud of the guys," the assistant chief said. "They did a good job." All contents ©Copyright 2000 Morris Digital Works and The Holland Sentinel. Please read our Privacy Polly * Contact us * Content Rating September 8, 2014 Russ Reich and City of Palo Alto, I am writing to ask you to DENY the application for a celltower at 3672 Middlefield Road for reasons of health and safety of our children from new environmental factors brought into the site with the installation of such a tower. The equipment shed will emit objectionable odors of a running backup generator, exposing the general public and children to toxic air contaminants. This generator is called out in the initial proposal, and the cell tower operator can add it at any time later to meet the colocation requirements of a second or third carrier loaded onto the monopole, which is fully anticipated in the application. The proposed site would be creating a hazard to the public of the environment as a result of routine transport and use of hazardous materials, within less than one quarter mile of multiple schools and library (Fairmeadow School, Challenger School, Covenant Childrens Center, Mitchell Park, Mitchell Park Library and Community Center), and creating a hazard to users of the site to contamination in soil or groundwater. Moreover, this celltower and its significantly sized equipment shed immediately next to the batting cages, the ballfield, the other equipment sheds which are open ever day...and with high voltage electrical equipment and hazardous materials inside will be an attractive nuisance, tempting kids to climb it and possibly hurt themselves by falling off, or break inside leading to personal injury. For these reasons of public health and safety near our children who are at this site every day of the week, I ask you to deny the celltower application at 3672 Middlefield Road in Palo Alto. Sincerely, Jason Yotopoulos From: frank ingle <frankwingle@gmail.com> Sent: Monday, September 22, 2014 11:17 AM To: hillary.gitelman@cityofpaloalto.org Cc: Jason Yotopoulos Subject: re Verizon proposal for cell phone tower next to little league ball park: there is no safe way to locate an industrial sized fire and explosion risk in an R1 residential area Flag Status: Flagged Hillary, We have not yet met, but I as a courtesy I am sending you below this email a copy of the email I sent to the Architectural Review Board pointing out new potentially serious safety issues with the proposed design of the Verizon cell phone tower at the Little League Ballpark in Midtown. I also spoke to this issue at the 9-18-14 ARB meeting. The safety issue is that the large quantity of high pressure hydrogen in tanks required for the hydrogen fuel cell backup power supply for the tower in my opinion represent a serious fire and explosion hazard, especially when located in a grove of trees in an R1 neighborhood. Should a fire arise, it could rapidly spread upward into the crown of the trees around the site. With the generally prevailing northerly wind, the fire might quickly spread in a southerly direction along the line of mature trees to the rear of the new library, the new Rainbow park, the Achievekids facility, the rear of the Abilities United facility, and possibly to the Challenger school. The hazards are detailed in federal government documents found at the links in the email below. I also brought copies of the documents to Ken Duecker, the director of emergency planning in Palo Alto and he responded that he forwarded them to Rich Dean, the fire chief. The first document describes the general layout of a cell phone tower site which incorporates a hydrogen fuel cell backup power supply. it indicates that one or two sleds of 6 cylinders (about 1000 pounds each) is needed for a single fuel cell to last 1-4 days, and several fuel cells may be included to facilitate "hot swapping" of tanks during use. The power backup of the Verizon proposal requires a building about the size of a two car garage. The second document is from a database of incidents involving hydrogen fueled facilities which will be useful for risk management. The third document is a list of links to regulations and ordinances relating to hydrogen fueled facilities, which will be helpful in evaluating the types of control and testing needed to ensure safety. From a published MSDS (material safety data sheet) https://www.utdallas.edu/research/cleanroom/safety/msds/documents/H2 MSDS.pdf are the following warnings: FIRE AND EXPLOSION HAZARDS: Severe fire hazard. Severe explosion hazard. Vapor/air mixtures are explosive. Pressurized containers may rupture or explode if exposed to sufficient heat. Electrostatic discharges may be generated by flow or agitation resulting in ignition or explosion. FIRE FIGHTING: Move container from fire area if it can be done without risk. Cool containers with water spray until well after the fire is out. Stay away from the ends of tanks. For fires in cargo or storage area: Cool containers with water from unmanned hose holder or monitor nozzles until well after fire is out. If this is impossible then take the following precautions: Keep unnecessary people away, isolate hazard area and deny entry. Let the fire burn. Withdraw immediately in case of rising sound from venting safety device or any • discoloration of tanks due to fire. For tank, rail car or tank truck: Stop leak if possible without personal risk. Let burn unless leak can be stopped immediately. For smaller tanks or cylinders, extinguish and isolate from 1 other flammables. Evacuation radius: 800 meters (1/2 mile). Do not attempt to extinguish fire unless flow of material can be stopped first. Flood with fine water spray. Cool containers with water spray until well after the fire is out. Apply water from a protected location or from a safe distance. Avoid inhalation of material or combustion by-products. Stay upwind and keep out of low areas. Evacuate if fire gets out of control or containers are directly exposed to fire. Evacuation radius: 500 meters (1/3 mile). Consider downwind evacuation if material is leaking. Stop flow of gas. I expect that there will be a multidisciplinary discussion among the city departments about what would be required to ensure safety of an installation at this site. I think it likely that a wide margin around the site, cleared of trees and brush, and a large concrete pad and access ramp for the heavy trucks transporting 1000 pound sleds of hydrogen tanks or for refueling of stationary tanks by a tank truck of hydrogen. And, adequate access must be provided for fire and emergency vehicles. And perhaps a chain link fence to provide adequate protection for the facility. And periodic application of weed killer to insure that grass and shrubs do not grow up in the enclosed area. In my personal opinion, there is no safe way to locate an industrial sized fire and explosion risk in an R1 residential area, and so the Verizon proposal should be sent back to the company for redesign for this site, or selection of other sites which are clearly in industrial areas or even East of US 101. Please let me know if I can be of assistance in discussing the technical aspects of these issues. Thank you, Frank Ingle, Ph.D., PE, CEO Instruments for Science and Medicine, Inc. 814 Richardson Ct Palo Alto, CA 94303 650-799-3813 From: frank ingle [mailto:frankwingle@gmail.com] Sent: Wednesday, September 17, 2014 1:08 PM To: 'arb@cityofpaloalto.org' Subject: new safety information for discussion of item #2 ball park cell phone tower for tomorrow's meeting Members of the Palo Alto Architectural Review Board, I have this late but very important information for the ARB's discussion of item #2, the cellphone ball park tower. I will try to attend and speak to this meeting, but I am speaker at another meeting which ends at 10 AM and so I may not be there in time. I urge you to send the recommendation back to the Planning Division for more discussion of the safety issues relating to fire and explosion. Summary: The ONLY reason to use hydrogen fuel cells is to provide standby power during a power outage, which amounts to perhaps a few times a year for short periods of time. Is this requirement driven by a government grant or requirement? This tower could be powered more easily and cheaply by conventional electric power from the grid. If the purpose of this 2 cell phone tower is to insure continuous cell phone coverage during a power outing, Palo Alto would be better served to have a taller tower sited well outside the residential area. Discussion of concerns of fire or explosion: A hydrogen fuel cell is not at all like a battery. It requires a considerable volume of high pressure hydrogen for the standby power system, in a building of very considerable size, 442 square feet. Further, there is no mention in the Verizon application of the explosive risk of high pressure hydrogen, high risk of hydrogen leaks due to the high pressure and low viscosity, and the need to exchange many charged tanks of high pressure hydrogen or bring in a tank truck to recharge the existing tanks. There is also no mention of the roadway needed to allow the trucks to recharge the tanks in the building, the need for fire department and possibly police department presence during the recharging procedure, and local ordinances to insure safety of the installation. The following federal governmental publications cited below describe these aspects in more detail. Fuel Cells for Backup Power in Telecommunications Facilities http://www.hydrogen.energy.gov/pdfs/44520.pdf Complete list of reports of safety incidents involving hydrogen, from Hydrogen Lessons Learned site: http://h2tools.org/lessons/list.asp Codes and standards citations: http://www.nrel.gov/docs/fyl4osti/57944.pdf Frank Ingle, Ph.D., PE, CEO Instruments for Science and Medicine, Inc. 814 Richardson Ct Palo Alto, CA 94303 650-799-3813 3 9/1/2014 City of Palo Alto Planning, Given the risk to property values of having such an unsightly 65 foot tower near our homes in Palo Alto, I would encourage the City to please reject the Verizon celltower application at 3672 Middlefield Road in Palo Alto. To me it is a question of liability insurance question. What liability coverage does the Little League of Palo Alto, the field owner, have to cover potential loss of property value for all the homeowners who live close to the proposed tower site? I am attaching information from a court case in which an insurance company will not cover claims of reduction in property value or personal injury from mobile phone base stations. See the original complaint filed by attorney John Hamilton of South Bend, Indiana, last summer. The complaint of the four families who are party to this suit includes reduction of property value due to nuisance of towers and antennas, personal injury due to the nuisance, radiation is an invasive and chronic source of illness and substantial distress, and that plaintiffs are entitled to an injunction prohibiting defendants' continued operation of the tower as a source of microwave emissions and mandating removal of such tower. The insurance company filed a motion for declaratory judgment, so this is a matter of public record. See the attached Complaint of a Declaratory Judgment from Cincinnati Insurance Company. It states, "This policy states in pertinent part as follows: Pollutant (a) At or from any premises, site or location which is or was at any time owned or occupied by, or rented or leaned to, any insured. We shall have no duty to defend or pay damages for any person or organization that is not a named insured. Pollutants means any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste. The underlying facts of this cause, together with the pertinent policy provisions, affirmatively establish that Horvath Communications is not entitled to either a defense nor indemnity incurred in the underlying litigation under the Cincinnati policies issued to Horvath Communications since the damages alleged by the plaintiffs do not constitute an "occurrence", and further that the alleged damages caused by the microwave radiation were reasonably expected by the insured, and further that the microwave radiation which the plaintiffs complain is a pollutant, and therefore coverage is excluded. City of Palo Alto, this means that the Little League of Palo Alto in such a similar case as the one below, would be required to reimburse neighbors for any damages, which they are not able to do. For this reason alone, I encourage you to reject the application for a 65 foot celltower at 3672 Middlefield Road, Palo Alto. 19 kclolcs e ?a-tk.) (c CA 93c STATE OF INDIANA, ST. JOSEPH COUNTY ST. JOSEPH CIRCUIT COURT WILLIAM HICKS, BONNIE HICKS, BRETT ONNINK, LESLEE ONNINK, PAUL BARBER, PEGGY BARBER, and LOUANN PENNINGTON, Plaintiffs, ) ) ) v, ) Cause No. 71 C01 -0l 07-CP- CHARLES S. HAYES, CHARLES S. HAYES, INC., JACQUELINE L. HORVATH and HORVATH COMMUNICATIONS, INC., Defendants. ) ) ) ) ) COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF RE NUISANCE WITH JURY DEMAND AS TO DAMAGES Plaintiffs William Hicks, Bonnie Hicks, Brett Onnink, Leslee Onnink, Peggy Barber, Paul Barber and LouAnn Pennington for their complaint allege as follows: Jurisdiction and Parties 1. Plaintiffs William Hicks and Bonnie Hicks own and reside at 55685 Clover Road, Mishawaka, IN within the County of St. Joseph, State of Indiana. 2. Plaintiffs Brett Onnink and Leslee Onnink own and reside at 3112 Mishawaka Avenue, South Bend, IN within the County of St. Joseph, State of Indiana. 3. Plaintiffs Paul Barber and Peggy Barber own and reside at 352 Weber Street, Roseland, IN within the County of St. Joseph, State of Indiana. 4. Plaintiff LouAim Pennington owns and resides at 55650 Clover Road, Mishawaka, IN within the County of St. Joseph, State of Indiana. 5. Defendants Charles S. Hayes and Jacqueline L. Horvath are each individuals resident in the County of St. Joseph, State of Indiana. Such defendants are either the agents of defendants Charles S. Hayes, Inc. and Horvath Communications, Inc. and are personally responsible for the nuisances alleged hereafter as such, or they are principals of such corporations, the corporations themselves merely shells through which such defendants operate their business of constructing, owning and operating cellular telephone towers throughout St. Joseph County. 6. Defendants Charles S. Hayes, Inc. and Horvath Communications, Inc. are each a corporation established pursuant to the laws of the State of Indiana with its principal place of business in St. Joseph County. Facts: Defendants and Plaintiffs 7. Defendants own, operate and maintain cellular telephone towers, scattered across St. Joseph County, many in close proximity to residential property, schools and other places of human congregation; each are equipped with a number of antennae each of which emit microwave electromagnetic radiation. 8. The homes of plaintiffs William Hicks and Bonnie Hicks and Lou Ann Pennington are located within 700 feet of the defendants' 235 foot high cellular telephone tower at 2010 Mick Court, Mishawaka. 9. Plaintiffs Brett Onnink and Leslee Onninks' property abuts the defendants' 187 foot high cellular telephone tower which is located at 3108 Mishawaka Avenue, South Bend; in fact defendants' installation encroaches on the Onninks' property. 10. Plaintiffs Paul Barber and Peggy Barbers' property is located within 100 feet of the defendants' 199 foot high cellular telephone tower, which has as its address 436 McComb, Roseland. 11. William Hicks and Bonnie Hicks have one child, Cody, who is 3 years of age. 12. Brett Onnink and Leslee Onnink have two children, Marshall, 4 and Reid, 3. 13. Paul Barber and Peggy Barber have one child Kimberly, aged 6. 14. Lou Ann Pennington has one child living with her, Kris, a college student, aged 20. Facts: Nature and Impact of Cellular Telephone Towers 15. Growing numbers and varieties of scientific studies of microwaves emitted from cellular telephone base stations, or towers, have reported disturbing health effects in areas relatively close to such towers. 16. For example a study of generations of laboratory mice placed near microwave towers in the vicinity of Thessalonika, Greece, show increasing levels of sterility, until, by only the fourth generation, the mice subject to the study had shown complete sterility. 17. Other research has demonstrated a variety of adverse health developments associated with microwave towers, including weakened immune systems, tumors, neurological disorders, learning and memory problems, sleep disturbances, headaches and even skin rashes. 18. The variety of symptoms just recited likely is explained by the fact that microwave radiation in the vicinity of such towers interfere in a way similar to cell phone interference with landing commercial aircraft: they conflict with, or resonate with (or against), the essentially electrical process of human cells. As to landing aircraft, cell phones are ordered turned off; no such order exists for humans living under microwave base stations. 19. Scientific studies are already showing some disturbing incidences of pre -cancerous cell breakdown as a result of microwave impact; in fact scientists have observed changes associated with microwave radiation in DNA, the very fabric of life. 20. Exhibit A attached hereto is a listing of studies only through 1997 reflecting microwave effects on human and animal tissue. 21. The foregoing scientific developments are, by process of publication and growing citizen and political debate, becoming well known, with the result that the public's concern about living, or even attending school or working for substantial periods of time in the near vicinity of microwave base stations, is and has been growing at an increasing rate. 22. That growing concern includes a developing realization among many that any single or microwave tower may carry a multitude of antennae, each of which emits its own pattern of microwaves on its own set of wave lengths, with the result that a single tower can emit several different patterns of relatively intense signals, or "lobes" of such signals, some of which may change on a daily basis, to homes, schools and businesses within hundreds of feet of the tower. Count I: Reduction in Property Value Due to Defendants' Towers as Nuisances (Onninks) 23. Brett and Leslee Onnink purchased their home at 3112 Mishawaka Avenue on December- 6, 1996. 24. The Onninks purchased their home long before defendants constructed their 187 foot high tower, immediately next door, indeed such that the defendants' installation encroaches on the Onninks' property -- in an area of dense population, a characteristic of many of the defendants' towers situated in urbanized parts of St. Joseph County. 25. The defendants' tower carries several antennae, the total number, manufacturer, owner or operator and purpose of each of which is unknown. 26. Subject to discovery, the number and size of such antennae may be physically too great in terms of weight and surface dimension for the tower safely to bear. 27. The tower's emissions interfere with and in some cases make impossible the operation of the Onninks' electrical appliances and other electrical products, including but not limited to garage door opener, radio, television, VCR, cordless phones and the childrens' baby monitors. 28. The tower's regular operation produces a constant drone of noise which necessarily affects, and reduces, the Onninks' quiet enjoyment of their home. 29. Because, in the Onninks' case, the tower is so close to their home, when the defendants have the tower serviced or modified, the Onninks have been asked, in the interest of their safety from debris falling from the tower, to leave their own home; the noise created by the defendants servicing the tower has also injured the enjoyment of their home; furthermore, service trucks block or interfere with ingress to and egress from their property. 30. In addition, in the Onninks' case, they are required, on a regular basis, to remove from their property debris fallen from the tower including cable ties, plastic bags, hats, bolts, cigarettes, electrical tape as well as a multitude of dead birds. 31. Because the tower attracts birds and because the tower is only 20 feet away, the Onninks' home and yard are constantly barraged by bird droppings. 32. In addition to the foregoing, the very existence of a 187 foot microwave tower next to their home has caused a substantial and in-emediable reduction in the value of the Onninks' home due to the following characteristics, characteristics shared by any such tower sited within close proximity to homes, schools and businesses: (a) the public's growing concern that sustained microwave radiation, even at allegedly low levels of intensity, may cause serious short tern and long tern harmful health effects; (b) the tower's negative impact on the appearance of the neighborhood. 33. The foregoing reduction in property value has forced plaintiffs to discontinue plans to improve or add to their home. 34. All of the foregoing, individually or in combination, constitute a nuisance which has seriously and permanently reduced the value of the plaintiffs' real property. Count H. Reduction in Property Value Due to Defendants' Towers as Nuisances (Hicks) 35. Paragraphs 1 to 22, 25, 33 and 34 are incorporated. 36. William and Bonnie I-Iicks purchased their property at 55685 Clover Road in 1990 and built a home and moved in in July 1993, long before defendants constructed their 235 foot high tower within 700 feet of the Hicks' home. 37. The tower's emissions interfere with and in some cases make impossible the operation of the Hicks' electrical appliances and other electrical products, including but not limited to their telephone, television, garage door opener, radio controlled cars and other toys and their baby monitor. 38. The tower's existence within 700 feet of the Hicks' property has caused a substantial and irremediable reduction in the value of the Hicks' home due to its following characteristics: (a) the public's growing concern that sustained microwave radiation, even at allegedly low levels, may cause serious short teen and long term harmful health effects; (b) the tower's negative impact on the appearance of the neighborhood. Count III: Reduction in Property Value Due to Defendants' Towers as Nuisances (Barber) 39, Paragraphs 1 to 22, 25, 33 and 34 are incorporated. 40. Paul and Peggy Barber purchased their home at 352 Weber Street in Roseland in November 1990, long before defendants constructed their 199 foot high tower within 100 feet of the Barbers' home. 41. The tower's emissions interfere with and in some cases make impossible the operation of the Barbers' electrical appliances and other electrical products, including but not limited to telephones, VCR and television. 42. The tower's existence within 100 feet of the Barbers' property has caused a substantial and irremediable reduction in the value of the Barbers' home due to its following characteristics: (a) the public's growing concern that sustained microwave radiation, even at allegedly low levels, may cause serious short teen and long terrn harmful health effects; (b) the tower's negative impact on the appearance of the neighborhood. Count IV: Reduction in Property Value Due to Defendants' Towers as Nuisances (Pennington) 43. Paragraphs 1 to 22, 25 and 34 are incorporated. 44. LouAn n Pennington purchased her home at 55650 Clover Road in September 1990, long before defendants constructed their 235 foot high tower within 700 feet of her horse. 45. The tower's emissions interfere with and in some cases make impossible the operation of the Ms. Pennington's electrical appliances and other electrical products, including but not limited to telephone, television and VCR. 46. The tower's existence within 700 feet of Ms. Pennington's property has caused a substantial and irremediable reduction in the value of her home due to its following characteristics: (a) the public's growing concern that sustained microwave radiation, even at allegedly low levels, may cause serious short tern and long term harmful health effects; (b) the tower's negative impact on the appearance of the neighborhood. Count V: Personal Injury Due to Nuisance (Hicks) 47. Paragraphs 1 to 22, 25, 33, 34 and 36 to 38 are incorporated. 48. The defendants' tower at 2010 Mick Court, Mishawaka, emits microwaves in patterns, wave lengths and from antennae owned or operated by various third parties, all of which is unknown to plaintiffs. 49. On information and belief, the foregoing emissions of microwaves have resulted, since the defendants' tower began operating, in the plaintiffs Hicks experiencing and suffering the following effects: heart palpitations loss of peripheral vision interference with hearing recurring headaches including migraine headaches - short tern memory loss - repeated sleep disturbance 50. In addition to the foregoing observable symptoms, plaintiffs live in fear of sub- cellular breakdown or change and advanced cellular aging, another effect of microwave radiation reported in scientific literature. 51. The foregoing effects have imposed on plaintiffs medical expenses as well as substantial mental distress including adverse effects on the plaintiffs' intra-family relations. Count VI: Personal Injury Due to Nuisance (Onnink) 52. Paragraphs 1 to 34, 50 and 51 are incorporated. 53. The defendants' tower at 3108 Mishawaka Avenue, South Bend, IN emits microwaves in patterns, wave lengths and from antennae owned or operated by various third parties, all of which is unknown to plaintiffs. 54. On information and belief, the foregoing emissions of microwaves have resulted, since the defendants' tower began operating, in the plaintiffs Onninks experiencing and suffering the following effects: - multiple tumors - loss of peripheral vision weakened immune system - recurring headaches and migraines repeated sleep disturbances glandular problems short term memory loss allergies chronic fatigue Count VII: Personal Injury Due to Nuisance (Barber) 55. Paragraphs 1 to 22, 25, 33, 34, 40 to 42, 50 and 51 are incorporated. 56. The defendants' tower in the vicinity of 436 McComb, Roseland, IN emits microwaves in patterns, wave lengths and from antennae owned or operated by various third parties, all of which is unknown to plaintiffs. 57. On information and belief, the foregoing emissions of microwaves have resulted, since the defendants' tower began operating, in the plaintiffs Barbers experiencing and suffering the following effects: loss of peripheral vision interference with hearing - recurring headaches weakened immune system short term memory loss repeated sleep disturbance learning capacity diminished chronic fatigue heart palpitations miscarriage Count VIII: Personal Injury Due to Nuisance (Pennington) 58. Paragraphs 1 to 22, 25, 34, 44 to 46 and 50 are incorporated. 59. The defendants' tower at 2010 Mick Court, Mishawaka, IN emits microwaves in patterns, wave lengths and from antennae owned or operated by various third parties, all of which is unknown to plaintiffs. 60. On information and belief, the foregoing emissions of microwaves have resulted, since the defendants' tower began operating, in the plaintiff Pennington experiencing and suffering the following effects: recurring headaches repeated sleep disturbance - weakened immune system - chronic fatigue 61. The foregoing effects have imposed on plaintiff medical expenses as well as substantial mental distress. injuries. Count IX: Injunctive Relief (Hicks and Pennington) 62. Paragraphs 1 to 22, 25, 33, 34, 36 to 38, 44 to 46, 48 to 51, 60 and 61 are incorporated. 63. Monetary damages are inadequate to remedy the plaintiffs' physical, mental and proprietary 64. Because emissions from defendants' towers are invasive, chronic and seriously deleterious as alleged above, plaintiffs are entitled to injunctive relief that will prohibit the defendants from imposing on plaintiffs a level of microwave radiation greater than the background level of microwave radiation in the South Bend - Mishawaka region. Count X: Injunctive Relief (Barber) 65. Paragraphs 1 to 22, 25, 33, 34, 40 to 42, 50, 51, 56, 57, 63 and 64 are incorporated. Count XI: Injunctive Relief (Orruink) 66. Paragraphs 1 to 34, 50, 51, .53, 54 and 63 are incorporated. 67. Because defendants' tower installation physically intrudes on plaintiffs' property, is a clear and present danger to plaintiffs' physical well-being as well as, due to the microwaves it emits, an invasive and chronic source of physical illness as well as substantial mental distress, plaintiffs are entitled to an injunction prohibiting defendants' continued operation of the tower as a source of microwave emissions and mandating removal of such tower. WHEREFORE, plaintiffs pray for judgment as follows: 1. On Counts I through IV, for damages sufficient to compensate plaintiffs for loss of the value of their real property. 2. On Counts V through VIII for damages according to proof. 3. On Counts IX and X for injunctive relief sufficient to shield plaintiffs from microwave radiation greater than background radiation in the South Bend -Mishawaka region by means short of ternination of all emissions from such towers if technically and physically feasible, but if not, termination of all emissions from such tower. 4. On Count XI for removal of the tower adjacent to the Onninks' home or, in the alternative, injunctive relief sufficient to shield plaintiffs from microwave radiation greater than background radiation in the South Bend -Mishawaka region by means short of termination of all emissions from such towers if technically and physically feasible, but if not, termination of all emissions from such tower. 5. For plaintiffs' cost of suit incurred herein. 6. For such other relief as the Court deems just. SYPIP AEMANA IIup6vavr To TptaX PlAs 38 71XfIlVTINKS pe0ue6T XouvT6 1 Tppouyr' gin (3n Tpte5 To a Tom'. Respectfully submitted, THE HAMILTON LAW FIRM John C. Hamilton (7416-71) Wayne Place, Suite 200 103 West Wayne Street South Bend, IN 46601 (219) 289-9987 Facsimile (219) 289-8138 Attorneys for Plaintiffs 9/8/2014 Russ Reich and City Planning, I am writing this letter to ask you to reject the 65 foot monopole tower proposal at 3672 Middlefield Road's Little League Ballpark where our children play here in Palo Alto, as I am convinced that such an industrial structure in our residential neighborhood will destroy home values. It is clear that such monopoles significantly affect home values (as opposed to more innocuous localized forms like DAS). In its book published in 1996, the Appraisal Institute listed the top 50 environmental hazards to the value of one's home in its book The Home Environmental Sourcebook: 50 Environmental Hazards to Avoid When Buying, Selling, or Maintaining a Home. Wireless base stations are included in their list of 50. Even the American Bar Association Annual Meeting on Environmental Law Activities, in its Session on Monday, August 3, 1998 entitled Stigmas, Contamination and the Environment: Their Influence on Property Valuation for Tax Purposes noted that microwave and cellular towers are included in the list of stigmas. I attach evidence of such a case in another community in which the local tax assessor is documented as needing to lower the property valuations of homes near a cellular tower. The County review board then upheld his determination. It is the City's job to protect the value of the homes to "preserve property values" in the City of Palo Alto and for that reason, the City needs to reject this application at 3672 Middlefield Road. Thank you, a i s 72:tio (VD E3 ARRINGTON ()LEER ER rZ EV Eii. Tower opponents ring up a victory BY PHIL BROZYNSKI STAFF WRITER Cellular towers may be beneficial to the customers they serve and to the owners of the property on which they are built. But they still can be eyesores. The Lake County Board of Review sustained Tuesday the decision of Cuba Township Assessor Fred Foersterling to lower the assessments of 12 homes whose market values he determined were adversely affected by the presence of a new cellular tower built on the North Barrington Village Hall property. The board ruled that evidence and testimony submitted at a hearing Jan. 21 by the village of North Barrington and representatives of Ameritech were not sufficient to warrant a change in Foersterling's assessment. "It is very good news," said Larry DeBoer, whose property on state Route 22 and Old Barrington Road adjoins the North Barrington Village Hall lot to the south. The tower is just 60 feet from DeBoer's property line and only 270 feet from his home. "It confirms what the plaintiffs in the lawsuit against North Barrington and Ameritech said all along — that a cellular tower in the midst of a beautiful, residential neighborhood diminishes the value of surrounding properties." Ameritech paid North Barrington $300,000 to allow construction of the tower in March of 1998. Surrounding residents who opposed construction filed suit complaining that the rezoning of the Village Hall property was illegal. As part of their suit, residents hired Howard Richter of Howard Richter& Associates of Chicago to determine if the tower impacted home values in the area. Richter concluded the presence of the tower diminished the market value of DeBoer's home by as much as 15 percent. Foersterling considered Richter's report when he lowered the assessment of the DeBoer property and 11 other surrounding properties. He lowered the assessment of the 12 properties between 4.6 and 11.2 percent. The village appealed Foersterling's decision to the board of review, presenting testimony from its own appraisers who said the tower had little or no affect on home values in the area. "Here is an independent source with no ax to grind either way saying yes, the tower does harm property values," DeBoer said. The village also argued that the assessor's action would pave the way for any property owner who lived within sight of water towers, standard roadside utility poles or other objects they decided spoiled the view from their home to obtain a lower real estate assessment. However, Foersterling contended that market values in the Barrington area are extremely sensitive to change like the construction of a tower, the widening of a road or the presence of power lines and based his lower assessments on the negative impact of the tower. "I have to congratulate Fred," DeBoer said. "He stood up for what he believed. He took a lot of political heat but did not waver. He was affirmed in his belief." The decision could also benefit the homeowners' lawsuit against the village. "This decision is definitely a feather in our cap, but who knows how much affect it will have (on the suit)," DeBoer said. Marty Paulson, assistant supervisor of assessments for Lake County, said the case was unique in that most appeals that are heard by the board of review are from individuals seeking to have their assessments lowered. "This situation was unique because an assessor made an adjustment and the municipality that allowed the tower to come in said that these assessments need to be raised," Paulson said. "We don't see a lot of situations like that." "In this type of case, it's very difficult for the objector to prove that the assessment needs to be raised," he added. The village may appeal the board's decision to the State of Illinois Property Tax Appeal Board within 30 days. North Barrington officials had no comment on the decision. "I am pleased that we won, but I do not think we have heard the end of all of this," Foersterling said. Copyright© 2002, Digital Chicago Inc. 9/7/2014 Russ Reich and City Planning, I oppose the application to site a Personal Wireless Services Facility (PWSF - cell tower and antenna base station) on the grounds of our local Little League Ballpark at 3672 Middlefield Road, Palo Alto, California which is zoned R-1 (8000). It is clearly an inappropriate residential zone location to place a 65 foot cell tower based on the following court information and legal precedent: • Local government control of land use i.e. zoning, in the United States dates back to 1916. A 1926 Supreme Court decision, Euclid v. Ambler Realty Co., reinforces the principle that the single-family residential use is at the top of the hierarchy of land uses to be protected by zoning regulations. Zoning regulations are written to implement municipal planning priorities whose purpose is to mitigate negative externalities that one real estate owner's use could impose on other members of the community. • While upholding local siting authority, the Telecommunications Act of 1996 (TCA) requires that towns not prohibit personal wireless services (PWS). It requires that zoning permit applications be acted upon in a timely manner. It requires that local government not discriminate among providers of functionally equivalent services. It requires that local government base its decisions on "substantial evidence in a written record." • Local government is not required to issue a zoning permit unless and until an application for a Personal Wireless Services Facility proposal demonstrates that it is in compliance with locally enacted zoning regulations. The technical specifications of the antennas proposed for the site must be included in every application so that local government can evaluate whether the proposed site is the only option available. Local government should seek the expertise of an independent radiofrequency consultant to evaluate the technical specifications of each application to site PWSFs. Both professional real estate appraisal literature and federal court decisions validate property devaluation arguments. • In the Summer 2005 issue of The Appraisal Journal: volume 73/3, pp. 257-277, authors Sandy G. Bond, PhD of Auckland University, New Zealand, and a director of the International Real Estate Society, and co-authors published the study entitled, "The impact of cell phone towers on house prices in residential neighborhoods." Both the survey examining residents' perception of living near cellular phone base stations (CPBS) and the market sales study analyzing actual property sales data found that CPBS have a negative impact on the prices of houses in the study areas. • Based on their professional experience, Real Estate brokers and agents recognize that the presence of a nearby cell tower brings on a definite and ultimate decline in the potential buyers pool for homes in the vicinity. They point out that allowing construction of a cell tower which is a commercial/industrial use in a designated residential zone alters the character and aesthetics of the surrounding area. They have stated that this shrinking of the buyer pool can translate to a loss of 30 to 50% in the value of a home. Some homes in this situation are impossible for agents to sell. • A Pennsylvania decision from the U. S. Federal Court of Appeals for the 3`d Circuit defines the TCA's requirement that a municipality provide wireless service. In Penn Township we established a two -gong test to determine if the decision of a local zoning authority has 'the effect of prohibiting the provision of personal wireless services. ' 47 U.S. C. S .332 (c) (7) (B) (i) (II). It requires that the service provider first 'show that its facility will fill an existing significant gap in the ability of remote users to access the national telephone network ' Penn Township, 196 F.3d at 480. If this burden is met, the provider must still prove `that the manner in which it proposes to fill the significant gap in service is the least intrusive on the values that the denial sought to serve.' • The "least intrusive manner" takes into consideration the adverse impacts of the development on the character of the neighborhood in which the site is found, and the potential for property devaluation of the adjoining landowners. • In Massachusetts decision from the U.S. Federal Court of Appeals for the 1st Circuit (found at: http://laws.findlaw.com/l st/001164.html), the judge determined that a cellular tower is a "visual intrusion" that will affect property values in a residential neighborhood. The plaintiff, Southwestern Bell, applied for a permit to build a 150 -foot cellular phone tower in the center of a small town (Leicester, MA). Southwestern Bell claimed that it needed the tower to provide adequate coverage in the area. The town board unanimously denied the application after the public demonstrated significant opposition to it at the permit hearings. The board's written denial said that the tower would be an "attractive nuisance" because it was close to the schools, would adversely affect property values, and didn't satisfy the requirement of "minimum visual impact" because there were no trees to hide it. Southwestern Bell argued that the denial violated the Telecommunications Act, 47 U.S.C. Sect. 332(c)(7), because there wasn't "substantial evidence" in the record to support it. But the court said that: [a]lthough some of the evidence before the board did consist of general statements that the tower was an eyesore ... [tJhe majority of the objections to the visual impact of the tower specifically addressed whether this 150 -foot tower was appropriate for this particular location, on the top of affty-foot hill in the middle of a clearedfield... The location has no trees, was in the geographic center of town, would be visible at all seasons of the year, and would be seen daily by approximately 25% of the town's population. It was also located in close proximity to three schools and two residential subdivisions...Indeed, the evidence supports a conclusion that the proposed tower was of a different magnitude than anything else in the vicinity When combined with the other evidence deinonstrating that the tower was out of keeping with the residential uses in close proximity to it, we conclude that reasonable minds would find adequate evidentiary support for the denial of... [the] permit application. The court also denied Southern Bell's argument that it was the zoning board's responsibility to find alternative sites where there would be less visual impact. We see nothing in the [Act] that would support placing a burden upon the board to present evidence that there were other sites available to Southwestern Bell with a lesser minimal visual inmpact...The burden would he on Southwestern Bell. • The AT&T v. Virginia Beach decision from the 4th Federal Circuit Court of Appeals describes the judges' expectation that a municipality and its concerned citizens build "substantial evidence in a written record" in order to be able to deny a wireless permit application under the terms of the TCA of 1996. This denial was based on the argument that a PWS tower was out of character with the scenic value of the neighborhood of the proposed site. The decision is found at: http://laws.findlaw.com/4th/972389.html • In the Ho-Ho-Kus, NJ decision from the 3"i Federal Circuit Court, the judge upheld the property devaluation argument of the expert witness hired by the citizens group. This decision is available at: http://laws.findlaw.com/3rd/992322p.html The local government officials of the City of Palo Alto must not leave it up to tower site developers or PWS providers to interpret the requirements of the TCA of 1996. There is an ample record from the federal courts and from professional real estate appraisers and agents to justify denying permits for inappropriate tower site proposals. Denying a specific permit does not equal denying wireless service. Local authority to preserve property values has not been removed by the language of the TCA of 1996. For these reasons and as a neighbor close to the property, 1 ask that the City of Palo Alto REJECT the Verizon application to place an unsightly 65 foot monopole celltower, clearly visible from both Middlefield Road, all the homes adjacent to the ballpark, the adjacent Covenant Childcare Center (which it hovers over), and the second floor of our new Flagship Library in Palo Alto which is next door and is scheduled to open in just a few months. Signed, Sept 5, 2014 City Council, ARB, Planning, I have a significant concern over the safety of our children playing on the Little League Ballfield at 3672 Middlefield Road if the celltower that is proposed by Verizon passes. And I do not believe that Little League of Palo Alto has sufficient liability insurance to cover this concern. Do not for a moment think that this is your average minor city cellular facility application....indeed, if approved, it would be THE TALLEST CELLTOWER IN A PALO ALTO RESIDENTIALLY ZONED AREA... and one of the handful of tallest towers in the entire city... this is no radio affixed to the top of a utility pole. For this reason there are a number of things that must be taken into consideration from a safety perspective when approving a high voltage 65 foot 18 inch wide monopole. I have significant concerns about the proximity of this tower to many other structures nearby and believe that the setback from these structures is far from insufficient. This 65 foot tower is proposed to be placed 30 feet from Mitchell Park and 90 feet from the Covenant Community Childcare children's play yard. It is 150 feet from the major Palo Alto electrical utility substation next door. And it is 25 feet from numerous storage structures, including one which is the telecommunications shack which contains chemicals and high powered electrical equipment. The cellular monopole is only 2 feet from the playing field itself, which means that its fall zone covers the entire right outfield. The cellular equipment sheds with hazardous chemicals and electrical equipment are 10 feet from the pitchers warmup area, 15 feet from parked automobiles, and 60 feet from the metal caged batting area. The top of the tower itself would only a few feet from the existing eucalyptus branches, so some significant trimming may be required. With an eye toward the future, what is the Palo Alto ordinance's setback requirement for a 90', 100', 120' tower? Future modifications of this proposed tower must be considered given the passage of the Middle Class Tax Relief and Job Creation Act of 2012 (below), which makes it illegal for local and state governments to deny additional height and carrier antennas. In fact, this 2012 law requires co -location on existing towers. Having just had the strongest earthquake in the area in 25 years on August 24th, 2014, which we felt vividly and woke the whole household just 100 feet from the proposed site, it is worth evaluating the certainty of a significant earthquake in the coming years in our area of even larger magnitude. Napa experiences hundreds of injuries, power outages, fires, and ruptured gas lines, among other things. In the case of an earthquake in our area, which we know is inevitable as we were recently reminded of, it is the case the "fall zone" of the proposed tower covers approximately one third of the surface area of playing field which the children are playing on. It is also right near the Covenant Community Center, the neighboring Mitchell Park parking lot, a Palo Alto Utilities substation, and our Mitchell Park Library. We also know that this area of Palo Alto has soft claylike soil and is at approximately 10-20 feet above sea level, with a high water table which typically makes the impact of earthquakes, even as far away as the North Bay, felt in a significant way, which is not the case, for example in other cities in the hills like Portola Valley...making the area most susceptible to feeling the effect of earthquakes even a hundred miles away. This also makes our area a high risk area for soil liquefaction. What is the liquefaction of the soil? "Liquefaction occurs when ground shaking causes wet granular soils to change from a solid to a liquid state. This results in the loss of soil strength and three potential types of ground failure: lateral spreading, flow failure, and loss of bearing strength. Buildings and their occupants are at risk when the ground no longer support buildings and structures. Areas susceptible to liquefaction include areas with high ground water tables and sandy soils." Please see attached substantial documentation regarding the risk and substantial costs of a tower fall James S. Cohen, P.E. MASCE , The information was compiled primarily from newspapers articles and telephone interviews, but also from a multitude of other sources. The database currently lists 140 such failures of towers, ranging in height from 40 to 2000 ft. above ground level, dating as far back as 1959. For each case...the following information [is being compiled]: 1) structural characteristics of the towers, 2) the geographic location and topography, 3) a description of the collapse, 4) concurrent weather, and 5) damage. The database is growing and therefore not fully analyzed. In many cases, data in all these topic areas do not exist or are not available; some data... [is yet to be obtained.]Trends in the current information are presented." Also attached is research on the typically safe radius in the case of a tower fall (which typically spreads much further than just the radius, in fact the impact zone spreads to two times the radius or 130 feet beyond the site location as the study shows). These clearly outline the risk and caution when approving such a tall, top heavy, high voltage electricity laden structure near children and neighborhood buildings. Lastly, attached is Law journal article on liability considerations for all parties in a tower collapse situation. I encourage you to REJECT the celltower application, as it is simply in the wrong location for our neighborhood...in fact, could not be in an more dangerous location than that which has been proposed. Signed, �l o �j ri .--J5. t'.1-6 re \ TOWER FAILURE SURVEY: CURRENT EFFORTS AND PRELIMINARY RESULTS James S. Cohen, P.E. MASCE1 Abstract Although it is widely known that towers have, on occasion, collapsed, and that problems have arisen with their performance, the frequency of these problems has not been previously investigated. Therefore, a survey of tower structural and serviceability failures has been commenced through the Committee on Telecommunications Facilities (CTF) of the American Society of Civil Engineers (ASCE). This paper presents the first preliminary results of the survey, including the method of data collection. Introduction It is known that telecommunications and other towers suffer structural failures and collapse due to extreme loads, poor construction methods, excessive corrosion and misuse. However, the frequency of these failures has not been previously investigated and therefore remains unknown. Common causes of failure also remain unquantified. Similarly, data reflecting problems of overall tower performance have not been previously collected. These problems can include: loss of signal strength; transmission or reception failure due to excessive deflection or vibration; excessive, difficult or excessively costly maintenance; poor provision for access; lack of necessary resistance to vandalism; inattention to corrosion protection; insensitivity to later needs for tower expansion or increased aerial complement; or other unsatisfactory performance of the structures, as perceived by the owner or user. This paper preliminary results in attempts to survey this data. Previous Surveys The author is aware of only two previous survey attempts. The first, carried out by the International Association of Shell and Spatial Structures Working Group No. 4 on Towers, appears to have been restricted to the direct experience of the Working Group?s membership with very tall towers. Due to the limited and restricted membership, results of the survey, however interesting, appear to have very limited value. The second survey was carried out by Nathan Mulherin at the Cold Regions Research and Engineering Laboratory in Hanover, New Hampshire. This funded telephone survey was directed towards failures of towers solely from ice accretion. Results of the survey, providing details of 140 tower failures are published elsewhere.2 Director, James Cohen Consulting, PC, Pennington, New Jersey 2 Mulherin, Nathan D., Atmospheric Icing and Tower Collapse in the United States, presented CTF Survey Until tower performance data is collected and recurring problems identified and prioritized, efforts to improve design, construction and maintenance practices will remain haphazard. For this reason a survey has been commenced inclusive of both serviceability and ultimate load failures. This survey is intended to be the beginning of a longterm data collection effort. For this reason, and to encourage response, the initial survey was limited in length to only two pages of data entry, following a fill -in -the - blank format and is presented at the end of this paper. Pages 1 and 4 of the survey, not included in this paper, comprise a cover sheet with explanatory and contact information for use by the respondent and a final page of optional followup contact information. All data is considered confidential, to the extent that the specific structures, owners, designers and contractors cannot be identified, unless otherwise authorized. During data collection it is stressed that the results will be publicly available and for non - commerical use. Further to this, basic contact information is directed through ASCE headquarters in Virginia, rather than directly to the author. The survey at the time of writing this paper is in its sixth month. Initially, it was hoped to distribute the survey during national conventions of interested organizations, such as the Society of Broadcast Engineers (SBE) or the National Association of Broadcasters (NAB). However, this was not found to be practical: methods of distribution required greater coordination than could be provided on a voluntary basis without the support of a larger organization such as ASCE. Simple items, such as copying and collating, were quickly seen to be impediments to this method of distribution. The Internet offered an alternative low-cost method of publicizing and distributing the survey. There are many E-mail news groups related to broadcasting, but none with a specific interest in towers. [Note: E- mail news groups, in contrast to bulletin boards or ?chat rooms? operate through coordinated distribution of E-mail messages to a pre -defined membership, which may be open to the general public at the discretion of the news group organizer or moderator. The ?audience? is therefore targeted towards specific and active interests.] Although targeting these news groups was very successful in advertising the survey, the response has continued to be very low with regard to direct solicitation of news group members. However, continued efforts at initiating open discussions on tower problems are beginning to provide actual data which can be constructively used. SBE and NAB were also contacted directly via the Internet for assistance with the survey. Both organizations have responded very positively and posted notices on their home pages encouraging participation by their members. Unfortunately, this, too, did not generate more than a few responses. Attempts at publicizing the survey through bulletin boards have, so far, been equally unsuccessful. More recently, NAB has sent a notice of the survey through their newsletter which is generating an increased interest in the survey. Radio World has additionally published a notice which has provided some additional data. ASCE has been approached with regard to funding a direct mailing to SBE members, comprising the individuals throughout the United States most closely involved in the day-to-day operations of braodcasting towers. Additionally, the National Association of State Telecommunication at the 7th International Workshop on Atmoshperic Icing of Structures, Chicoutimi, Quebec, Canada, June 3-6, 1996 Directors has provided a mailing list of members for distribution of the survey. This will be taking place shortly. The insurance industry has also been contacted and is has already provided significant data. An underwriters association for tower insurers has provided summary claims information for the past five years. The type of loss is divided into 9 categories: fire, lightning, explosion and smoke; windstorm and hail; breakage, collision and upset; water damage; theft, burglary and robbery; vandalism, rior and other civic disturbances; collapse from volcanic action and earthquake; flood; and, ?all other?. A total loss of $76 million was reported for the period for 1989-1993. Although it is understood that this data includes ancillary buildings and structures, such as cable gantries, the primary losses are associated with the towers. This is tabulated below, in millions of dollars: Year 1989 1990 1991 1992 1993 Value $ 28.5 m $9.4 m $14.8 m $12.3 m $11.2 m Table 1 - Total Reported Losses Radio and TV - By Year Total losses for 1989-1993 for each of the categories was provided as follows: Category Value Percent of Total Number of losses Fire, Lightning, Explosion and Smoke $21.6 million 28.4% 2,215 Windstorm and Hail $12.4 million 16.4% 637 Breakage, Collision and Upset $2.6 million 3.4% 126 Water Damage $1.6 million 2.1% 217 Theft, Burgalry and Robbery $3.9 million 5.2% 902 Vandalism, Riot and Civil Disturbance $2.1 million 2.8% 179 Collapse from Volcanic Action and Earthquake $3.1 million 4.1% 51 Flood $3.1 million 4.1% 105 All Other $25.5 million 33.6% 1,107 Table 2 - Total Reported Losses Radio and TV - By Category As can be seen, data is available and losses are significant. In summary, the survey appears to have direct application towards improvements in tower design and construction. More work is needed to enhance data collection and interpretation of the survey results. Calculations on the Mechanical Safety Area at Transmitter towers determining the endangered area at transmitter towers for a worst case of mechanical failure. The transmitter towers for telecommuniction are normally from 200 ft (ca. 60m) to 350 ft (ca. 100m) high, and in some cases even more, depending on the local elevation. To accomodate the construction a site is required, being a square with a sidelength of about twice the towers height. However, if available properties in desired locations are not big enough to accommodate this, in an area with lower wind activity the steel ropes ( guys), that hold the tower in place, are set at a steeper angle requiring a smaller area for construction, thus the square size is reduced allowing the use of a smaller piece of property. In higher wind load areas, where a steeper angle may not secure the tower safely, a big enough site must be found. But according to the local office of Industry Canada in Belleville, ON the above outlined square size is not regulated and since those towers are considered utility structures local building codes do not apply.. The size of the square depends only on the area needed for the actual construction of the tower with the anchors. Furthermore, the size of the security area (fence) is set to protect the site from outside hazards, and not to protect the public from hazards caused by the installation. This distance by itself is therefore inadequate as a safety zone, because it is does not give a safe area in case of a serious mechanical failure at the tower. This is a serious flaw in the site selection process. The following calculations are based on a worst case scenario to determine the area endagered in such a situation by mechanical failure at the tower. We assume for a worst case scenario a total mechanical failure that can be caused by stress, extreme overload, defect in material, fatige, corrosion, poor workmanship, insufficient maintenance, and sabotage, as well as any combination of these factors. In the following calculations the letter h represents the height of a given tower. CASE A) The tower falls over For a rigid structure (e.g. a pole or even a tree) the endangered zone is a circle with a radius of the structure's ( tower) height, that is twice the height in diameter, it is accomodated by a square with such a sidelength, that is 2 x h. Most sites have exactly this size and are therefore declared sufficient by the operating company. However, most of these towers are not single pole structures; they are cage eleinent structures secured with steel ropes (guy wires) to ground anchors. The possible hazards of these wires add to the endangered area. The upper ones of these wires are reaching up to at least about 90% of the height of the tower, that is 0.9 h. They are secured to an anchor in the ground that is positioned within the square. For the calculations the anchors are assumed to be at a distance equal to 90% of the height from the center of the tower, that is also 0.9 h. The length of the highest reaching wires calculates then to about 1.27 times the height of the tower, that is 1.27 h. (apply Highschool Math -[ Pythagoras]: guy wire length = sqare-root of ((0.9 h) 2 + (0.9 h) 2} = 1.27 h ) CASE B) The guy wire snaps at the top - lashing out. The whip -lashing and falling steel rope endangers an area with a radius given by it's length around the anchor. The guy anchors are assumed to be located at 90% of the height, that is 0.9 h , from the center of the tower. Therefore the endangered zone is 0.9 h + 1.27 h. = 2.17 h reaching 1.17 h outside the nor nal tower site (a 2 h square). With tie wires this risk could be reduced, but a tie wire may give way under such conditions too. The theoretical distance endagered by such a wire is therefore 2.17 h from the tower center. Taking in account bends in the falling wire and obstructions in the path, a reasonable reduction of this distance by 10 % o can be made. The real danger zone for mechanical failure is therefore 90% of this distance, that is 0.9 x 2.17 h = 1.953 h , rounded to 2.0 h, from the center of the tower. The danger area is a circle with 4 h in diameter Therefore, only if the site is a square with a side of at least 4 times the height of the tower, it encloses the danger zone in case of severe mechanical failure! CASE C) The wires snap at the anchor, and the tower falls. The falling tower causes the guy wires to whip out in the direction of its fall. The longest wire is connected at 90% of the towers height. Hence, the calculations have the same numbers and the result as in case B). The distance of danger is 2 x h from the center of the tower. The radius of danger is given by this distance = 2 h. The area is a circle with 4 h in diameter Again here, only a square with a side of 4 times the height of the tower encloses the danger zone. CASE D) The top wire snaps at one anchor the top cage element breaks off and lashes out tied to a remaining anchor . The total mechanical length is 2x wire length plus anchor distance from center that calculates to (0.9 + 2.54) h = 3.44 h applying bend and drag reduction the safe distance in this case easily calculates to 0.9 h + 0.9 x 1.27 h + 0.4 x 1.27 h = (0.9+1.143 + 0.508) h =2.551 h. The safety zone is a circel with about 5 h in diamenter requiring a squre of this side length . The 40% drag -lash length is a favourable assumption - applying the fill length of this "debris" 3.44 h from center would require a square of about 7 h to ensure 100% safety. The fenced area may be smaller, depending on regulations, but the tower must then be removed from a neighbouring property by the above calculated lengths to be at a safe distance.Therefore, any such tower should be distanced at least twice the height better two and a half times the towers height from any neighbouring property line or even road! copyright OO 1997 by Wolfgang W, Scherer The Legal Landscape When a 7! http :// www.mobar.org/journal/2001/julaug/oflaherty.htm by Vincent F. O'Flahertyl Towers are increasing as our communication needs expand. When a tower collapses or there is an accident, the legal duties and rights of tower owners, engineers who design towers, and the contractors who build and service towers come into scrutiny. This article provides in summary form a discussion with applicable case law of the legal ramifications to the tower industry. The proliferation of towers across our national landscape has been a direct response to increased appetite for radio, television and telephone communications. The structures have also increased in size, complexity and design. Now, with the advent of a world hungry for wireless access to telephone, internet and e-mail services, the role of towers as a key "brick and mortar" component of the broadcast, internet and telecommunications industry is being fully recognized. The legal setting, duties and responsibilities for tower owners and contractors has changed since the first broadcast towers were built. Nevertheless, many towers built 30 or 40 years ago are still in working service. The age or useful life considerations of these towers are especially relevant as television stations contemplate the transition to digital television (DTV) by choosing between installing DTV antennas on existing towers or building new towers. Decisions on whether to maintain costs while keeping aging structures warrant a recognition by tower owners of their legal duties. Also, those hired by tower owners in such projects, namely design and consulting engineers and general contractors and subcontractors, need to be aware of increasing liability risks as the tower owners upgrade, modify and replace existing towers. An accident involving all or part of a tower is naturally a high profile event that will obtain maximum media scrutiny. This is in part because of the desire of competing stations and/or entities to capitalize on the tremendous impact of a tower collapse as well as the newsworthiness of the event. The legal fallout from a collapse can continue for many years. An example is the collapse of the KELO television tower in South Dakota in 1968. The resulting litigation lasted more than 14 years.' Today's marketplace has many towers with an increasing number of tenants leasing space that can be adversely impacted by damage. Property damage is not the only consideration. Loss of use and lost income, as well as personal injury claims from those injured in a tower collapse, are also involved. Therefore, this article will identify the major duties and responsibilities a court will look for in the event of a tower accident for the following three groups: (1) tower owners and lessors; (2) design and consulting engineers; and (3) contractors and those performing work. I. The Duties and Responsibilities of Tower Owners/Lessors Tower owners and lessors are not immune from claims asserted against them following a tower collapse. Courts have examined the following issues in the tower owner context: (1) theories of negligence, (2) liabilities of previous owners, (3) an owner's liability for work done by contractors, and (4) insurance coverage. A. Negligence Theories Generally speaking, owners and those responsible for maintaining and leasing towers have a legal duty to act reasonably to prevent and warn of those dangers which they know or should know and are not openly obvious to those working on or near towers for a particular business purpose.' A failure to do so is negligence. The negligence of the tower owners can be asserted in two ways. The first way is as a defense by a person or company accused by the owner to have damaged or destroyed a tower. Such a party can rightfully assert that the damages claimed by the owner should be barred or reduced due to the owner's own fault in failing to advise or warn the person or company of all dangers the owner knew of, or should have expected to have known. The owner is in the unique position of having, in the case of some broadcast towers, more than 30 to 40 years of knowledge and documentary history. Inadequate record keeping, changes in management and engineering personnel over the years, and various consultants' reports can be pieced together as evidence of an owner's negligence. Failure to provide those working on towers access to tower records and work history will expose owners to the possibility of significant damage reduction in the event of a catastrophic claim. This is particularly important given the age of many towers in existence and the increasing body of knowledge and understanding of tower dynamics. Owners who are hiring contractors will be found to have knowledge and responsibility for all upgrades, additions and other work performed on a tower over the years of its life. A failure to properly maintain such work records and/or a failure to supply contractors with access to any and all applicable records for their review will render tower owners with increasingly shared responsibility in the event of an accident. Whether or not the injured party knew of, or in the exercise of ordinary care could have known, of the condition that controlled is a necessary fact in examining liability issues. However, in an age of comparative fault, even an injured party's knowledge of the risk will not always absolve an owner of liability.4 The second way to assert negligence of an owner is by way of a direct claim by a person suffering personal injury as a result of a collapse. It is a general rule of law that owners who contract with independent contractors to do work are not liable for harm caused to another by the acts or omissions of the contractor.5 There are several exceptions to the rule that fall into three broad categories: (1) the "non delegable duty" doctrine, which does not permit an owner to shift liability risks to a contractor in certain areas; (2) negligence in selecting, instructing or supervising a contractor; and (3) certain tasks that are inherently or especially dangerous. Each state has its own complex set of rules to apply in this situation, and must be examined proactively. An attempt at holding an owner liable for injuries to a tower contractor's employee was asserted in Kelly v. LIN Television of Texas, L.P.6 A 1,500 -foot television tower collapsed when a 10,000 pound piece of equipment broke free from the tower and struck a guy wire. Two of the independent contractor's employees were killed in the collapse. The families of the deceased workers asserted wrongful death claims against the tower owner and others. The claim was made under Texas law that the tower owner was negligent because it exercised or retained control over the manner in which the work was performed. Further, it was asserted the tower owner had actual knowledge of the danger or condition resulting in the deaths and failed to warn of such danger. Claims presented included "negligence, negligence per se, res ipsa loquitur, negligent misrepresentation, fraudulent misrepresentation and constructive fraud." The court held that the plaintiffs failed to present sufficient evidence that the station owner retained control over the workplace. The presence of the owner's maintenance supervisor at the site, who observed the work being done but was not in charge of the manner in which the subcontractor performed, was critical to the court's decision. Additionally, evidence that the station owner discussed the status of the project with the independent contractor and oversaw reductions to power did not support an inference of control over the workplace. Also, in Campbell v. Barnett,' a claim was asserted for an owner's negligence. In that case, a 1,610 -foot tower in New Mexico collapsed during a snow, sleet and windstorm in 1960. The plaintiff was injured when portions of the tower crushed him in a nearby building. Plaintiff asserted that the owner was liable for the negligence of the tower designer in failing to design and build the tower with sufficient strength and stability to withstand wind and ice conditions. The court noted that state law permitted an owner to be liable if the owner discovered a danger, or it was obvious to him and that foreseeable danger would result. The court permitted the case to go to the jury, where a verdict was rendered in favor of the owner. This verdict was affirmed on appeal. B. Liability of Prior Owners The general rule is that prior tower owners owe no duty to keep a property safe after sale or transfer.8 Prior tower owners, however, have been subjected to claims by tower purchasers following a tower's demise. One way such a claim has been asserted has been through the body of law stated in the Restatement (Second) of Torts § 353, which provides for an exception to the general rule of no liability for prior owners.9 Section 353 requires a showing that the prior owners knew or should have known that a dangerous condition existed on the tower and failed to disclose that dangerous condition. If such a duty does exist, § 353 also provides that the prior owner's liability continues only until the new owner has had a reasonable opportunity to discover the condition and take precautions. A claim of liability against prior owners was asserted in Kelly v. LIN.1° The court refused to impose liability on the prior owners. There was evidence that the prior owners transferred all tower records to the new owner and that all maintenance employees were transferred as well. Additional evidence of tower maintenance being regularly performed helped to shield the prior owner from liability. The court found there was a lack of any duty on the part of the prior owner. A similar claim against a prior tower owner was made in Woodward Communications Inc. v. Shockley Communications Corp." In 1996 Shockley sold to Woodward the assets of a radio station. Included within the assets was a 640 -foot communications tower. This tower had been built in 1948. The closing for the sale took place in July, 1996. The tower collapsed during a wind and ice storm on December 31, 1996. It was determined that the tower failed when a metal bolt broke. Woodward brought breach of contract and breach of express warranty claims against Shockley. Woodward cited to sales documentation containing a representation from the seller that it would "keep in good repair and operating efficiency, all tangible personal property." The tower was defined to be tangible personal property. The issue before the court was whether or not the failed metal bolt was a latent defect that led to the tower not being in good repair and operating efficiently at the time of the sale. The court found in favor of the seller and refused to impose liability for breach of contract or breach of warranty. The court found that the language "keep in good repair and operating efficiency" was a commonly understood term. The seller did not represent or warrant at the sale that there were no latent or hidden defects in the tower. The court held that the seller did not have any obligation or responsibility with regard to the latent defect. Also of significance to the court was the fact that an inspection report just prior to the sale indicated that the condition of the tower was good. There was no evidence that any repairs were necessary to keep the tower in good repair and operating efficiency. Therefore, the seller met all of its obligations. Owners can deal with these risks by way of indemnity agreements with a contractor and insurance protection. However, this does not absolutely relieve the owner from liability exposure. C. Insurance Coverage Issues Insurers are becoming more cautious in their underwriting and renewal of coverage for towers. A tower owner should be cognizant that insurance companies may attempt to deny and/or limit coverage for property damage following a tower's collapse. Additionally, contractors performing work on a tower may have their coverage challenged following an accident. An insurance carrier's denial of coverage for its insured contractor weakens an owner's ability to obtain full compensation following a calamity. In TV -3, Inc. v. Royal Ins. Co. of Am.,"Z a 2000 -foot tower collapsed in October, 1997 in Mississippi. The TV -3 litigation followed the carrier's denial of insurance benefits to its insured, the TV station. The station brought suit for breach of contract, breach of duty of good faith and fair dealing, fraud and unfair or deceptive trade practices. The carrier denied coverage based upon an exception in its policy for towers "in the course of construction or undergoing repairs or alterations, other than routine maintenance." While the opinion was concerned with a motion to transfer venue the case is instructive on insurance risks that an owner may face following a collapse. Another insurance scenario facing tower owners is the potential lack of coverage for a contractor doing work on a tower at the time of its collapse. In National Union Fire Ins. Co. of Pittsburgh v Structural Sys. Technology, Inc.,13 three employees of a tower contractor were killed when a 2,000 -foot tower collapsed in Missouri in 1988. The court interpreted a commercial general liability policy and products -completed operation policy for the general contractor. The contractor's carrier denied coverage, which placed the station at risk for having a large part of its business interruption damages uninsured. The owner was named in the suit and argued in favor of coverage. The court found coverage to exist. I I. The Duties and Responsibilities of Tower Contractors and Others Performing Work Tower contractors have three sets of concerns in the event of an accident, including: (1) contractual and liability claims from its customer, the owner; (2) liability claims of those who did not hire the contractor, including lessees and personal injury claims; and (3) governmental oversight from OSHA or other applicable institutions. A. Contractual and Liability Claims The first place to start in examining a contractor's liability in the event of a tower collapse or accident will be the contractual relationship between the owner and the contractor. To the extent the contractor breached any affirmative duty to the owner, a common law cause of action for breach of an express contract would arise. Express warranties can also be found in product literature provided to an owner before entering into the contract. Related contractual theories concerning breaches of implied warranties may also be asserted. Under a contract theory the issue of the comparative fault of the tower owner is not a determinative factor. However, it will be asserted by the contractor that any failure by the tower owner to warn of any blatant defects in the tower structure that causily related to the tower's collapse would amount to a material breach of the contract. Beyond contractual theories, other theories of liability - including negligence, res ipsa loquitur and strict liability - will be asserted against a tower contractor. It is acknowledged that a contractor who is paid to render services to a tower owner is subject to liability for any physical harm resulting from the contractor's failure to exercise reasonable care if the tower owner suffered harm because of reliance upon the contractor. Such a failure is negligence. Another theory of liability related to negligence is the long recognized doctrine of "res ipsa loquitur." Res ipsa loquitur is Latin for "the thing speaks for itself." It is a theory whereby negligence can be inferred by the mere fact the accident happened and that absent someone being negligent or at fault, the accident would not have happened. The key element is that the contractor have exclusive control of the damaged product and that the event would not ordinarily have happened if reasonable care had been used.14 An additional cause of action is strict liability. This is the theory that holds a contractor liable if it sold a product that was in a defective condition unreasonably dangerous to a user or consumer, and the contractor has liability for any physical harm caused by the defective product.15 B. Responsibility for a Subcontractor's Negligence Another consideration involves situations in which a general contractor is held liable for the negligence of subcontractors performing work on towers. In Channel20, Inc. v. Worldwide TowerServs., Inc.,16 the court concluded that a general contractor who was in control of the premises owed a duty to the employees of subcontractors similar to that owed by an owner or occupier of land to its invitees. The court found the duty attaches regardless of whether the general contractor is in actual physical possession of the premises. Actual possession was not a necessary element of control so long as there was a right to manage, whether or not it was ever actually exercised. Therefore, the court found it proper to hold a general contractor liable for failing to discover hidden dangerous conditions and to warn the subcontractor or its employees of such conditions. HI. The Duties and Responsibilities of Design and Consulting Engineers The role of the design and consulting engineer in a tower accident cannot be under -evaluated. As professionals carrying duties and responsibilities that go with their professional licenses, engineers owe a duty to the tower owners who hire them and the public to exercise that degree of skill, learning and care ordinarily exercised and practiced by other professionals and engineers under the same or similar circumstances. A failure to do so will be recognized as negligence, thereby exposing engineers to liability for damages associated with a tower's collapse. Each state's laws impose varying rules for examining liability of professional engineers in the event of a tower's collapse. In addition to negligence theories based upon active negligence and/or failure to warn, other areas looked at by the courts include breach of contract, strict liability and fraud. A. Express Warranty A television station that truly experienced bad luck was KELO in South Dakota. In 1968 it lost a new 2,000 -foot tower when it was struck by an airplane. Thereafter, a 2,000 -foot tower was built. Unfortunately, in January, 1975 this tower collapsed during a blizzard. The design engineer of the second tower, Dresser Industries, Inc. was subjected to several suits in which its liability as a designer was examined. In Community Television Servs., Inc. v. Dresser Indus.,17 the designer was sued under various theories of liability for negligence, strict liability and breach of express warranty. At a jury trial the designer was found to have breached its express warranty, and damages of more than $1.2 million were assessed. On appeal the court focused on Dresser's liability for failing to meet design windload specifications as contained in the sales contract and related sales literature. The court agreed that the engineer could not be held to be an insurer of its product as designed. However, the engineer nevertheless provided a catalog to the buyer that was a basis of the bargain of sale. The statements provided in the catalog were a warranty that the engineer's tower would be properly designed so as to safely withstand windloads. Nothing in the sales literature indicated that the broad statements in the sales literature were superseded or cancelled by technical specifications in the contract. Therefore, there was sufficient evidence to support the finding that the engineer breached its warranty that the tower would withstand wind and ice loads common in the area. B. Statute of Limitations Design engineers are also faced with potential suits long after a tower has been designed. In KSLA-TV, Inc. v. Radio Corp. of Am.,18 a 1,709 -foot tower was designed, fabricated and sold in 1964. It collapsed in 1977 due to undetermined causes. The designer successfully asserted a statute of limitations defense. Also, a tower that was designed in 1954 collapsed 17 years later due to a defective guy line in Mt. Hood Radio & Television Broadcasting Corp. v. Dresser Indus., Inc.19 The court found no liability for the designer due to the implication of the 10 -year statute of limitations. C. Res Ipsa Loquitur In 1973 a 70 -foot radio tower collapsed in City of Kennett, Mo. v. Akers,2° and the designer was alleged to be negligent. The court held that the doctrine of res ipsa loquitur applied because the falling of an antenna tower is an unusual occurrence and does not ordinarily happen in the absence of negligence. D. Negligence In Northern States Power Co. v. ITT Meyer Indus.,21 five transmission towers collapsed in Minnesota in 1979. The cause of the collapses were found to be defective screw anchors designed by defendant. Claims of breach of warranty and negligence were made, which the court affirmed. E. Strict Liability A wrongful death action following the collapse of a 40 -foot tower in 1981 in Ohio was brought against the tower designer and manufacturer in Moerch v. Srepco Electronics.22 Claims of negligence in the design and manufacture of the product, along with failure to provide warnings and instructions, were made along with the theory of strict liability. A jury found the defendant designer strictly liable for the loss. On appeal the court affirmed the trial court's finding. A tower supporting a wind energy generator collapsed in Illinois in 1988. Suit was brought by the plaintiff, who sustained property damage, against the tower designers in Loos v. American Energy Savers, Inc.23 The court granted judgment in favor of the designer and manufacturer. IV. Conclusion By anticipating risks associated with a tower accident, tower owners, engineers and contractors may seek to protect themselves contractually from liability. However, today's legal landscape warrants recognition that all those involved in a tower project have overlapping duties and responsibilities that involve more than a pure contract analysis. Endnotes 1 Vincent F. O'Flaherty is a shareholder with Niewald, Waldeck & Brown of Kansas City, with experience in providing advice to the tower industry. He has expertise in tower accident prevention, tower collapse investigation and causation analysis throughout the United States and internationally, and negotiation with governmental regulatory agencies including the Department of Labor, OSHA and Canada Labour. He is a graduate of the University of Missouri -Columbia. 2 Community Television Servs., Inc. v. Dresser Indus., Inc., 435 F. Supp. 214 (D. S.D. 1997), affirmed 586 F.2d 637 (8th Cir. 1978). 3 Restatement (Second) of Torts § 341A (1986). 4 Restatement (Second) of Torts §§ 343 and 343(A) (1986). 5 Restatement (Second) of Torts § 409 (1966). 6 Kelly v. LIN Television of Texas, L.P., 27 S.W.3d 564 (Tex. Ct. App. 2000). Campbell v. Barnett, 351 F.2d 342 (10th Cir. 1965). 8 Kelly, 27 S.W.3d 564 at 571. 9 Restatement (Second) of Torts § 353 (1986). 10 Kelly, 27 S.W.3d 564. 11 Woodward Communications, Inc. v. Shockley Communications Corp., 622 N.W.2d 756 (Wis. Ct. App. 2000). 12 TV -3, Inc. v. Royal Ins. Co. of Am., 28 F. Supp. 2d 407 (E.D. Tex. 1998). 13 National Union Fire Ins. Co. of Pittsburgh vStructural Sys. Tech., Inc., 964 F.2d 759 (8th Cir. 1992). 14 Larry D. Hudson, LDH, Inc. v. Townsend Assocs., Inc., 704 F. Supp. 207 (D. Kan 1988). is Restatement (Second) of Torts § 402(A) (1966). 16 Channel 20, Inc. v. World Wide Towers Servs., Inc., 607 F. Supp. 551 (S.D. Tex. 1985). 17 Community Television Servs., Inc., 435 F. Supp. 214. 18 KSLA-TV, Inc. v. Radio Corp. of Am., 693 F.2d 544 (5th Cir. 1982). 19 Mt. Hood Radio & Television Broadcasting Corp. v. Dresser Indus., Inc., 530 P.2d 72 (Ore. 1974). 20 City of Kennetti v. Akers, 564 S.W.2d 41 (Mo. banc 1978). 21 Northern States Power Co. v. ITT Meyer Indus., 777 F.2d 405 (8th Cir. 1985). 22 Moerch v. Srepco Electronics, 1988 Oh. App. LEXIS 1181 (Ohio Ct. App. 1988). 23 Loos v. American Energy Savers, Inc., 522 N.E. 2d 841 (III. App. Ct. 1988). JOURNAL OF THE MISSOURI BAR Volume 57 - No. 4 -July-August 2001 September 1, 2014 City of Palo Alto Planning, I request that the City of Palo Alto REJECT the celltower application for 3672 Middlefield Road, as it will destroy the cultural environment of one of Palo Alto's most historic sports facilities, one that has relevance to California and perhaps even nationwide...the Palo Alto Little League Ballpark. Why we would mar this historic property as a City is beyond me. This site deserves recognition as such and for this reason some of the founders' families have banded together to submit this property to the Palo Alto Historic Inventory, having done all the research in conjunction with the relevant Palo Alto historic experts. The City of Palo Alto's Historic Inventory lists noteworthy examples of the work of important individual designers and architectural eras and traditions, as well as structures whose background is associated with important events or trends in the history of the city, state, or nation. The city classifies buildings at the local level into the following categories: -Category 1 (Exceptional Building): any building or group of buildings of preeminent national or state importance, meritorious work of the best architects or an outstanding example of the stylistic development of architecture in the United States. An exceptional building has had either no exterior modifications or such minor ones that the overall appearance of the building is in its original character. In addition, the City has specific criteria: -The structure or site is identified with the lives of historic people or with important events in the city, state, or nation -The structure or site is particularly representative of an architectural style or way of life important to the city, state, or nation -The structure or site is an example of a type of building, which was once common, but is now rare -The structure or site is connected with a business or use, which was once common, but is now rare -The architect or building was important -The structure or site contains elements demonstrating outstanding attention to architectural design, detail, materials or craftsmanship The historic Little League ballpark clearly meets the above criteria. If this celltower is constructed in this location, it will change the fundamental use of the property from what has been over the past 65 years exclusively baseball to a new commercial usage, and the property will no longer be eligible for the California or National Register, as new construction will fundamentally alter the landscape and dedicated use which has been substantially preserved since its founding. The community is concerned with the defacing of a 60+ year old Historical Palo Alto property. Little League of Palo Alto would be giving Verizon and other carriers extensive easements across their property for maintenance and build -out that would severely hamper future uses of the ballpark property. To erect cell towers here would violate the intent and history of the property and all those who donated the funds to purchase the property in the early 50s, such as Bill Alhouse who was commemorated as a Palo Alto Tall Tree Honoree and outstanding citizen for this. The property is comprised of a stadium/sports arena and its clubhouse and is well over 40 years old. The property is historic with mid-century modern architecture. A State of California placard commemorating the founders resides on the exterior of the Little League Ballpark Clubhouse building and identifies the historic property having been created as the region's first such ballpark in 1952. The property and its structures are clearly designated in the City of Palo Alto GIS system and the County's Parcel Report system as having been "Deemed Potentially Eligible for the California Register of Historic Resources in 1998"...one of a select group of such eligible sites in Palo Alto. The property was also flagged for the architecture of its structure (the 1946 clubhouse) as being (at a minimum) CRHR eligible in the "windshield drive by" Palo Alto Historic Survey Update (Corbett and Bradley for Dames & Moore in 2000), which took into account only the physical structure and not the cultural landscape, events, or persons associated with the property. It has not yet been formally evaluated for National Register, California Register, or Palo Alto Historic Inventory. You will find below substantial documentation as to the Ballpark's historic relevance. Please consider them carefully. It appears that the ballpark is the first dedicated Little League baseball field under private ownership (owned by the Palo Alto Little League organization) in California and may be the oldest privately owned dedicated Little League field in the nation (to be confirmed). It still exists in operation to this day with the same original purpose- indicating significant post-war foresight by its founders who initiated a vision that just years later would have been prohibitively expensive given the significant growth of Stanford and the new City of Palo Alto. Since inception, this ballpark has had one dedicated purpose, has been privately owned, and has continued to function exclusively as a Little League field for the community. This was quite unusual for its time when Little League in most communities was a public function held on public fields. By virtue of its private ownership, it avoided the financial challenges and repatriation of land that many municipalities have faced in the past 60+ years, severely impacting the staying power of such Little League fields. The site remains Northern California's flagship Little League ballpark in use to this day. Moreover, it also appears that this ballpark was at least among the first (founders and neighbors can find no evidence that it is not the first) sunken diamond -design Little League ballparks in the nation. It precedes the famous Howard J Lamade Stadium in South Williamsport, Pennsylvania, the home of the Little League World Series since 1959, which also has a sunken diamond design but was constructed 7 years later. Additionally, the Palo Alto Little League appears to be among the first created in California (perhaps the very first), created in 1951, the same year as San Bernardino's). Notably, Palo Alto Little League's ballpark was built within one year of organizing, quite unusual for an newly established organization to have the means to finance and build a ballpark so quickly. The first two Little League organizations ever created in California were the Palo Alto American Little League in Palo Alto and the Jaycee Little League in San Bernardino, both formed in 1951. It is unclear which was created first, although it the Jaycees did play in the 1951 Little League World Series, whereas Palo Alto did not field a team that year. The Palo Alto National Little League was also formed in 1952. Both these leagues were created by the founders of this property. The Little League organization itself was created on the east coast in 1939. The Little League Ballpark's opening ceremony for the property was on 6/29/52 and was attended by Palo Alto Little League's first President and League Commissioner, baseball great Ty Cobb. It was a historical event which marked the movement of youth baseball into the West Coast and featured both Ty as one of first men ever voted into the Baseball Hall of Fame and his family. Cobb spoke at the opening (and they could scarcely get him off the field to start the game). The Ballpark's 50th Anniversary featured Ty Cobb's grandson and great grandson throwing out the first ball of the day. Ty Cobb is regarded by some historians and journalists as the best player of the dead -ball era, and is generally seen as one of the greatest players of all time (wikipedia). He still holds the highest career batting average ever. The opening day also featured Pop Warner (creator of Pop Warner football), one of college football's greatest coaches, inducted into the Coach's Hall of Fame in 1951. The Ballpark's founders clearly include individuals whose lives were nationally significant in our past: - Bill Alhouse, National Little League Hall of Fame inductee, American Baseball Coaches Hall of Fame and ex -Brooklyn Dodgers player, who with others bought the land. - John Hurlbut, Vice -President of the NCAA, Professor of Law at Stanford University who taught Chief Justice William Rehnquist and Associate Justice Sandra Day O'Connor of the Supreme Court of the US - Joe Eichler, American 20th Century post-war real estate developer known for developing residential subdivisions of Mid -Century modern style tract housing in California. He was one of the influential advocates of bringing modern architecture from custom residences and large corporate buildings to general public availability (from Wikipedia) John Arrilaga Sr, American billionaire real estate mogul and philanthropist, one of the largest landowners in Silicon Valley and the man to help create many of the structures that make up Silicon Valley today (from Wikipedia) later supported the further buildout of the property with paving, walls, etc.. John donated money for these structures under the guideline that the ballpark was never to be a commercial venue (for example, with any form of advertisement, etc.), a stipulation which is still known and respected by the Little League Ballpark Board to this day. Dozens of professional players like Frank Farmer (pro baseball, '41) and Hank Norberg (pro football '46- '48) coached the kids on this field, and storied coaches like Ted Tollner (USC, SD State, Raiders) learned to play baseball on this very field as youth. The project was architected by prominent Bay Area architect Morgan Stedman (who has at least one of his properties listed as a Local Historic Resource). Stedman was a licensed architect for over 30 years, working in his profession for about 50 years, most prominently in the 50s and 60s. He reached fellowship status in the AIA in the 1970s, a program developed by the national organization to elevate those architects who have made a significant contribution to architecture and society, and who have achieved a standard of excellence in the profession. The sunken field design appears to be the first in Little League history in California and perhaps the nation. The property embodies distinctive characteristics of the period that represent the work of a master and posesses high artistic values, apparently being the first sunken diamond Little League Ballfield designed as an exact replica to the Stanford University legendary Sunken Diamond created in 1931, down to the fact that the field was positioned so that the shadow at the end of the day slides right down the right field foul line at dusk in an identical way as it does at Stanford directionally by way of latitude and longitude. This meticulous attention to detail and the exhaustive work of removing a significant depth of soil across the entire face of the field (many tons of soil) and relocating it took significant dedication by a committed team of community leaders to create something unique which remains today. The two story clubhouse design is unique to its era, with the club above and concession, restrooms below. The property appears to be nationally unique in that it is one of the few privately owned Little League fields and clubhouses, which required a great deal of foresight by its founders in the late 40s and early 50s. Overall, the property has a high degree of integrity, never having been moved or substantially altered inside or outside, with many of its original features still intact. Its orientation and surroundings have not changed and continue to be city park and residences, consistent with the original grid of Palo Alto. The ballpark's character defining features are its sunken diamond design, historical clubhouse with club above and restrooms/concession stand below, and dedication of function exclusively as a Little League ballpark...all of which exist today. There appear to be no other examples in the Bay Area, California, or even the nation, as far as we can determine, of such an early Little League sunken ballpark with clubhouse. Moreover, 3672 Middlefield appears to be a first as a privately owned Little League ballpark. For the above reasons, we encourage that the City of Palo Alto consider the historic nature and current application of the Palo Alto Little League Ballpark at 3672 Middlefield Road to the Palo Alto Historic Resources Board for the Palo Alto Historic Inventory in its evaluation of whether to permit the construction of an 18 inch wide, 65 foot tall monopole celltower and new equipment shed on this historic property. I request that the City of Palo Alto REJECT this proposal at 3672 Middlefield Road. Signed, Palo Alto Planning division, I am writing this letter with regard to the health concerns over the 65 foot monopole celltower proposed by Verizon at 3672 Middlefield Road in Palo Alto, which I encourage the City to REJECT. Please see in two recent Insurance industry premier rags, AM Best's Briefing and The Real Estate Finance Journal, the industry's evaluation of this risk on the basis of the best objective evidence they have been able to collect. Are the City of Palo Alto and Little League prepared to take on the unacknowledged health risk of installing such towers immediately upon our neighborhood's children? I acknowledge that the City can not make a decision about this tower based on health concerns, yet if one looks carefully through the property file, there are ample reasons to reject this tower which the community has provided over the past many years...I implore you to make the right decision in rejecting this wireless monopole at3672 Middlefield Road in Palo Alto. Sincerely, Ain xu Cr`dtte ?GA C 5 Air-tkivr etk(306 ��`ti Ay -our c -t, p isc BEST'S BRIEFING February 14, 2013 It is critical for insurers to maintain vigilant oversight of these new risks. ui by ica1 Contact: Mihaly Dia/No, Oidnf.§Cie (, E 4:-A02/31) Ext. 5104 Agiliony.Oidalcidamtpnt. i�Jrri439-22[Xi IAA. 57:.a Ethtoriai Management r Arn King U.S. Property/Casualty & Life/Health Emerging Technologies Pose Significant Risks with Possible Long -Tail Losses he insurance industry faces a constantly escalating level of exposure from rapidly developing technologies with risks that are not well: understood, In many situa- tions, the science associated with understanding these new risks is in the early stages of development, A.M. Best believes that it is critical for insurers to maintain vigilant oversight of emerging technologies as a critical Component of their enterprise risk management system. Effec- tive enterprise risk management encompasses identifying, evaluating and addressing risks that could threaten the earnings or viability of an insurer. This includes a prospective look at the underwriting exposures so that changes to policy language or underwriting criteria can properly manage losses from these new risks. An exposure which may pres- ent only insignificant insured ios,scs at present, may brine; future unprecedented losses. None of the current emerging technologies appears to he the next ashcstos, the lon- gest Winning and most expensive tort in U.S. history, according to the Rand Institute. Asbestos in many ways presented the "perfect storm" of loss characteristics: extreme toxicity; a very lengthy latency period before emergence of illness; a contagion capabil- ity through airborne transmission and physical contact; and lengthy exposure to a very large number of workers, their family members and asbestos product users. A.M. Best recently estimated the tl.S. property/casualty industry's ultimate asbestos losses at 585 billion.Whilc losses from emerging technologies may pale in comparison, they still could he extremely significant to the industry. Insurers need to monitor the manner in which emerging technologies arc, or arc likely to bc, deployed; the risks associated with their use; their residual or unintended impacts; and the manner in which the insurance policies may he called upon to cover losses. Emerging Technology -Based Risks RF (Radio Frequency) Radiation Risk —Today there are more than 6>00,000 cell sites in the United States and that number is expected to grow with the demand for faster, more reliable wireless devices. The risks associated with long term use of cell phones„although much studied over the past l() years, remains unclear. Dangers to the estimated 270000 workers per year who come in close contact with cell phone anten- nas, however, arc now more clearly established. Thermal effects of the cellular anten- nas, which act at close range essentially as open microwave ovens can include eye damage, sterility and cognitive impairments. While workers of cellular companies are well trained on the potential dangers, other workers exposed to the antennas are often unaware of the health risks.The continued exponential growth of cellular towers will significantly increase exposure to these workers and others coming into close contact with high-energy cell phone antenna radiation. Cyber- Riser —Significant data breaches have become common (e.g., Citigroup, the International Monetary Fund,JP Morgan Chase & Co.,Sony Online Eniertainment,.FIi1- ton VG'orldwidc, Marriott international [nc.,Vcrizon and Hear nand Payment Systems). These can involve, for example, loss of sensitive financial itlformation, personal data, and Copyright 0.3 2013 by A.M, Best Company, Inc. ALL RIGHTS RESERVE(). No print of tins. report a document may bw dnstneut.d in any eS :1fcnve ram cr by any maarn , cz stored r a database or re rievu' o orn, without the pane wriiicn asimt.,;, on _t rh,, A M t3 st Gar„weily..Fex additional detoit: , refe.r to our /edits; o1 t.Ge ,valtabfe at line A.M. 1 si C.ivnpony webs 1E. ev stiv. un ;+...,2 co ni3€vrn . Briefing U.S. Property/Casualty & Life/Health proprietary secrets. Identity.' theft alone is estimated to cost consumers and companies roughly $5 billion and $50 billion, respectively; each ycar.A 2009 study found that lost data cost U,S. companies in excess of 5200 per least customer file. In a 2011 study conducted among large U.S. companies, more than 80% of information technology- executives said that they had detected one or more recent attacks. Such exposures continue to evolve as companies are increasingly storing sensitive and confi- dential information with cloud vendors - a vendor that provides other companies with an infrastruc- ture on which to store data or run applications - exposing data to new types of breaches, Frocking Risk —Over the past 10 years horizontal hydraulic fracturing ("fracking") has become a big husines:; and a highly contentious is.sue.Thc process involves pumping a pressurized fluid into a rock layer, which causes fracturing of the rock and release of petroleum, natural gas or other substances for extriction.'l'he potential benefits are enormous; however, there are significant risks, including potential release of radioactive substances, radon (a known carcinogen) in the natural gas going into homes and potential chemical contamination of drinking water. The U.S, Environ- mental Protection Agency has determined that fracking was the likely source of ground water contamination in at least 36 cases.There are a variety of other concerns including the potential for exposed worker to develop silicosis and that the process may lead tt7 earthquakes. Nanotechnology Risk —A wide variety' of consutner and industry products are increasingly con- structed at the molecular level, using materials from 1 to 100 nanometers in length (a nanometer is one billionth of a meter).• Nanotechnology is employed in an array of products, including medi- cines and medical devices, glass, coatings, construction products, fire protection materials, vehicles, foods, textiles, cosmetics, optics and sports equipment. Nano -sized particles, however, act differently than materials built at normal scale, and existing chemical risk assessments are not suited for expo- sures arising from nanoparticles, Considerable concern has arisen that some nanoparticles may be toxie.\Vith the exception of airborne nanoparticles entering the lungs, understanding of the effects of nanoparticte on the human body, including accumulation, metabolism and organ -specific toxic- ity is extremely limited: Concerns involve both the potential of immediate harms as well as harmful effects appearing after long latency periods. Of the technology risks now emerging, nanotcchnology product exposures may he the most similar to ashestos.While it remains unclear whether nanopar- tic.les can lead to asbestos -like losses, insurers need to carefully monitor developments of this emerging technology. Conclusion Insurers must evaluate constantly evolving technology exposures with the knowledge that existing scientific/technical understanding is often incomplcte.A.M. Best will review companies' under- standing of their exposure to emerging risk, and their approaches to mitigating the risks within the framework of their enterprise risk management programs, AM. BEST COMPANY WORLD HFADOUAATERS • 0ldwlck,NJ • +1 (908) 436.2200 Washington Office • W,afiirit2ai, DC • +1 (202) 347-3090 .Mans Office • t#aaml, FL • +1(3051347-5186 AM. Best Asia-i seethe Ltd. Hong Krsa>i) • +852 2827.3400 A.M. Best Eatepe Rating Ser. c:ri Ltd. Land.;a, UK • +44 (0)20 7626.6264 p.M. Best ti'tUrqrglhItcrtn,,IWn Si,;v1cea Ltd. • lnni tl. UK • +44 (0)20 7626-6264 A.M. Best - MENA, Soofft 8 Central n a Wit, , (ME • +971 43 752 780 Important Notice: A e&st s Firta.;r:;a1 Stren=gth 1fii,ng is _, o, ,..,,..den, . : _n at an ir:;1u ss i.' 1 ' 01sating-lb and abady 10 itiiiaat its trigging litsorniwie 1 i o '1 r.atirreaCt ot1Rj-01 , p it :. C.a. a.3 co. A C_z n4 h g �i.-`lnl:lut,e 3 :l �d ],4, i 01 j . 4; .j 1 , 01 a Gas'-aS ny' b.0'r,c.,.„hsK '�la� Ll -`i- as a1?-puriranna ,zc. ,,r,0 on.,,,,, - Nor; profile. Those retinas are not o wan-onty o1 an : 'Baize s 0.. AT"nt or tialw •,. 01:110ty to marit a: nrsct: ;3] ob;.g hies. t rw Finnric‘ol Strr.oatt1 Rating opn,.r ,:;-;:s ues. tl*a r etotive tZi;iity of an in,1.ro710 1.110.E11 I19 Gagging nstiritoio talky 3'-d 'or dr9r01 obilgetiord. The rating lit nOt BB -Signed 10 OpKittig ,3{.2. 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For addrtooal intrrrnation, oo v AMt. 2c:..rs T tins 0t UK:' at wssk u'.,b st.c ; 3 tmilrnt, SR -2013-9-=131 Electromagnetic Field Litigation. A Growing Issue for Real Estate and Building Concerns Bill S. Forcade There is a growing public concern that electromagnetic fields cause personal injury or property damage. That concern is expressed in toxic tort litigation, commercial property transactions, and insurance considerations. Because the number and variety of conflicts is increasing, it is important for prudent property managers to understand what this conflict is about, what kind of situations prompt EMF conflicts, what the courts have done, and what to do to reduce the risks of an EMF conflict. Copyright 2002 West Group. This article was originally published in the Summer 2002 issue of the Real Estate Finance Journal and is reprinted with permission. Wherever there is electric power, electric and magnetic fields are produced by that power. As a general rule, where the power source is direct current, such as industrial electroplating or batteries, the electric and magnetic fields are independent. However, the electric current in electric generating plants, electric transmis- sion lines, industry, businesses and homes is alternat- ing current: current that varies with a frequency of 60 cycles per second (60 Hz.). As the frequency of the electric power variation increases, the electric and magnetic fields become more coupled, and are more properly described as an electromagnetic field. Com- monly, EMF arc defined as electromagnetic fields with frequencies from 0 to 300 GHz. This includes: • Static fields (0 Hz): Magnetic levitation trains for public transportation, magnetic resonance imag- ing devices used in medicine, batteries, and electrolytic devices using direct electric currents for materials processing in industry, • Extremely low frequency (ELF) fields (0 to 300 Hz): Trains for public transport, any device involved in the generation, distribution or use of (60hz) electric power, • lnternediatc frequency (IF) fields (300 Hz to 10 Bill S. Forcade is a partner in the Chicago office of Jenner & Block. He may be reached at bforcade@jenner.com. THE REAL ESTATE FINANCE JOURNAL/ 1 a)MAGNETO/MERCURY/TESTAREA/RM/REFJ/FROCADE SESS: 1 COMP: 07/25/02 PG. POS. 1 Tax Issues MHZ): Anti -theft and security devices, induction heaters and video display units, and • Radio -frequency (RF) fields (10 MHZ to 300 GHz): Mobile telephones or telecommunications transmitters, radars, video display units and diathermy units. Electric fields are typically measured in Volts per meter ("V/m"), and typical exposures at the home and work- place are from 5 to 10 V/m. Electric fields at ground level under a power transmission line may be 10,000 Vim, which is sufficiently high to cause fluorescent tubes to glow. Transmission line workers may have mean exposure values from 50 to 5,000 V/m. Magnetic fields are measured as magnetic flux density, typically expressed in microtesla ("µ.T") or milligauss ("mG"), where 1 µT = 10 rG. Typical magnetic field exposures at the home and office range from 0.01 to 0.08 /IT. Concerns About EMF Generally, people will take some concrete action regarding EMF only if they have a significant percep- tion of risk, and there is a triggering event. Clearly, a large number of people perceive EMF as a potential risk. In 1999, USA Today conducted a survey of 4,567 readers and reported that EMF are the number one environmental concern in America. On August 25, 2000, ZD Net, a popular electronic technology news magazine had an article, "Is Your Cell Phone Frying Your Brain?" ZD Net users were asked, "Do you think cell -phone use is hazardous to your health?" Of the 11,000 people responding, 54% said yes, 24% said no, and 23% said they would wait for completion of the government studies before deciding. Nearly every month some major newspaper or periodical has a sig- nificant article on possible links between EMF and an adverse health impact. Individual perception of risk may vary widely depending on age, gender, background and other factors. People are more likely to accept a perceived risk if they know about it in advance and if they find some personal benefit from the activity. They are less likely to accept the risk if they are not informed in advance, lack personal control over the risk, or derive little personal benefit from the exposure, such as may be the case with installation of new power lines or EMF discovered in schools. The second factor prompting EMF action is a trig- gering event. That may be someone developing a seri- ous health effect such as cancer, or the announcement of construction of a nearby high voltage power line. But the triggering event might have a less obvious con- nection with EMF, such as a business transaction to purchase property or their child starting in a new school. Once people become concerned about EMF around a triggering event they want to take some action. This may involve only investigating the issue or complain - 2 THE REAL ESTATE FINANCE JOURNAL/ ing to responsible parties. However, several factors can exacerbate their fears and prompt vigorous action. Obviously anyone who perceives that they are not receiving accurate, complete or candid information is more likely to take additional action. Second, people may become alarmed if they discover that their expo- sure levels exceed typical values. One issue has only marginal impact on the decision to take action: a strong scientific basis for concluding that EMF cause harm. There is a strong scientific con- nection between exposure to asbestos and specific health consequences. Presently no such data exists for EMF. Any future strong scientific connection between EMF and specific health consequences would greatly increase the likelihood of personal action. But the absence of a strong scientific connection between cause and effect may not preclude such action. Legal Conflicts Most people are aware that there has been a great deal of litigation by homeowners against adjacent high power electric lines or cell phone towers and some liti- gation by cell phone users against manufacturers. But the EMF conflict has a broader scope, including litiga- tion, property transactions, and insurance coverage issues. EMF litigation typically includes personal injury claims or claims of property damage or devaluation. This toxic tort litigation may be founded in trespass, nuisance, products liability, inverse condemnation, eminent domain or other theories. Personal injury claims based on EMF exposure have not fared well in the courts, because no one has pre- sented persuasive scientific evidence that EMF cause particular adverse health effects. Property claims have been much more successful in the courts. Most of the property claims have asserted that EMF have dimin- ished the value of the property, because the public fears regarding EMF reduce the amount buyers will pay for property subject to such exposure. These claims are usually brought under theories of trespass, inverse condemnation or eminent domain. Courts have applied four general theories to awarding diminished valuation damages related to public fears: the liberal (majority) view, the intermediate view, the conservative (minor- ity) view, and the preemption view. The majority, or liberal, view holds that landowners can be compensated for decreased valuation of their property due to public fears, whether that fear is rea- sonable or not. The leading majority view case, San Diego Gas & Elec. Co. v. Daley,' involved a condem- nation proceeding for construction of overhead power lines. The jury awarded the property owner $190,000 for the condemned property and $1,035,000 for the diminished value to the remaining property due to pub- lic fears from EMF. The Court of Appeals affirmed that the issue before the court was not whether EMF cause health hazards, but whether the fear of danger from the nMAGNETO/MERCURY/TESTAREA/RM/REF.VFROCADE SESS: 1 COMP: 07/25/02 PG. POS: 2 power lines affected the property's market value. Da- ley was also awarded $486,066.68 in interest and in litigation expenses. Similarly, in Florida Power & Light Co. v. Jennings,' the court held that "all evidence relevant to the issue of full compensation is admissible in eminent domain proceedings. The public's 'fear' as a factor which may be relevant to the issue of just compensation may be utilized as a basis for an expert's valuation opinion regardless of whether or not this fear is objectively reasonable." The intermediate view is exemplified by Dunlap v. Loup River Public Power District,3 involving construc- tion of an overhead power line on a faun. The Nebraska Supreme Court affirmed the award of damages, stating that while general fears should not be compensable, if there is a basis in experience for the fears, and the fears are reasonable and affect the price a purchaser of land is willing to pay, the loss should be compensable. Similarly, in Willsey v. Kansas City Power & Light,' the court affirmed a three part test for the intermediate view, originally employed in Texas, ruling that "fear in the minds of the buying public on the date of taking is relevant to the proof of damages when the following elements appear: (1) that there is a basis in reason or experience for the fear; (2) that such fear enters into the calculations of persons who deal in the buying and selling of similar property; and (3) depreciation of mar- ket value because of the existence of such fear." Nearly all recent intermediate view case law has allowed diminished valuation damages for public fear of EMF from power lines. Thus the intermediate view provides the same result as the liberal view for such cases. The minority (conservative) view holds that com- pensation for loss of value due to public fears is never compensablc.5 Most of the conservative view cases were decided before the current publicity and scientific studies regarding EMS, and the clear direction of recent court decisions is toward the majority view. A more recent judicial development is the Califor- nia Supreme court decision that judicial evaluation of property devaluation claims from EMS is preempted. The Covalts owned a single-family residence in San Clemente. They sued San Diego Gas & Electric, which ran electric currents through power lines on adjacent property. The court assumed that the Covalts could es- tablish that EMF radiation substantially and unreason- ably interfered with use of their property. However, permitting such a cause of action would interfere with the Public Utility Commission's policy on powerline EMF, which would violate Public Utility Code section 1759. Therefore, judicial evaluation of property value impacts from EMF is preempted by the utility code.' The recovery theories for property devaluation due to EMF are important because of the significant poten- tial impacts nationwide. The July 1992 issue of Sci- ence magazine concluded that "over one million homes and 10 million acres of land in the United States are sufficiently close to high -voltage transmission lines that levels of EMF exceed what is considered normal." A one percent loss in property value could result in $1 billion in damages.' Some property valuation experts have estimated the property devaluation from EMF and power lines averages 20%.8 Susan Coveny, president of RE/MAX Prestige, a realty agency in Long Grove, I11., says a home near a power line can sell for 30 to 35 percent less than a comparable house at some distance away.° Even without a claim of personal injury, damage awards can be quite high. In 1996 a New Jersey jury awarded a couple S762,524 for negligent infliction of emotional distress, trespass, inverse condemnation and nuisance resulting from the utilities construction and operation of an underground power line outside of the right of way. The jury unanimously rejected the plain- tiffs' theory that EMF caused his leukemia.10 Although most of the EMF litigation is filed against those operating overhead power transmission lines, there are other areas of growing litigation concern. Real estate developers could be subject to litigation by disgruntled purchasers claiming failure to disclose nearby power lines. And, as discussed below, residen- tial and commercial building owners and managers can be subject to suit from tenants based on potentially faulty building wiring that causes high EMF levels. There are two important unrecognized aspects to past EMF litigation. First, nearly all prior cases have been filed against a public utility, or product manufac- turers that are large, well funded entities where EMF are a central aspect of their products or activities. Realistically, these entities cannot settle a case claim- ing adverse health effects from EMF, or leave an adverse judgment unappealed, for fear that such action would prompt a flood of additional litigation. They must provide a maximum defense against any and all such claims, even if legal and scientific expert costs are quite high. If plaintiffs commence actions against less well funded companies or against entities where EMF are only incidental to their operations, the results may be quite different. Many large industrial facilities have substantial electrical distribution equipment within their facility that produce EMF. Commercial and residential prop- erty owners are responsible for the internal electrical systems, and the EMF, within their premises. There are many small companies that manufacturer products, such as electric blankets, that produce EMF. Schools, in particular, may find it politically difficult to present an aggressive legal defense if they are charged with having high EMF levels in the classroom. if plaintiffs begin to focus on these entities, the defendants may not present as spirited and well funded a defense, or they may settle, or they may accept adverse lower court rulings. This could significantly change the character of the EMF case law. Second, EMF litigation is profoundly dependent upon the character of the most recent scientific studies on the health effects of EMF. Even a single reputable scientific study showing that EMF are a direct cause of THE REAL ESTATE FINANCE JOURNAL/ 3 @MAGNETO/MERCURY/TESTAREA/RM/REFJ/FROCADE SESS: 1 COMP: 07/25/02 PG. POS: 3 Tax Issues an adverse health effect could lead to an explosion in litigation. Non -Litigation Conflicts Litigation is not the only arca with significant conflicts relating to EMF. Public concerns, including concerns from home owners, businesses, tenants and inside contractors have changed the way we address EMF. Some have added EMF contingency clauses to pur- chase or lease contracts. Similar concerns are arising in the representations and warranties section of docu- ments for industrial and commercial property transactions. These concerns have not been lost on the insurance industry. Most commercial general liability insurance policies cover all contingencies that are not specifi- cally excluded. As a result, EMF claims are likely to be covered under the policy. That position may be changing. Some insurers have recently expanded the pollution exclusions to include electric, magnetic, and electromagnetic contaminants and radiation. Some commentators have suggested that now is the time for insurers to act proactively, as with the Y2K problem, and amend insurance coverage forms so as to specifi- cally exclude or limit coverage on claims arising from EMF exposure.'1 Some states preclude general exclusion of EMF claims in insurance policies. The Maine Department of Professional and Financial Regulation, Bureau of In- surance has policies that preclude a general EMF exclusion for Commercial General Liability and Non - Medical Professional Liability insurance. For programs filed to cover risks associated with a high EMF expo- sure, any exclusions must be supported by claims data. Parties Involved In EMF Conflicts Clearly the public has targeted electricity power lines and cell phone manufacturers as likely EMF targets. But the available data shows that for many individuals these sources may not be the most likely source of high EMF exposure. One frequently overlooked arca of sig- nificant potential exposure is the buildings in which people live or work. It is very common for magnetic field interference problems to emerge following a building remodel or upgrade, but these problems can be anticipated and avoided. In one instance measurements, combined with computer projections confirmed that substantial levels -- in the tens of milligauss (mG) -- of magnetic fields would exist in tenant areas adjacent to the new facility, including the second -floor law offices. Corrective ac- tion kept actual EMF levels near typical office levels.'2 Improper wiring can also lead to EMF problems. If a four -wire three-phase circuit (service feeder/riser busway) is unbalanced by more than 15% or the neutral has excessive net, ground, or plumbing currents, then 4 THE REAL ESTATE FINANCE JOURNAL/ the magnetic field levels become highly elevated and a serious EMF threat. Stray grounding currents in the building steel, HVAC ducts, and metal conduits plus plumbing currents on the water pipes also generate highly elevated levels. Significant ground currents not only produce very high magnetic fields, but are also indicative of electrical wiring problems. This problem is not unique to the industrial and commercial workspace. In 1994, a faculty member at the Community College in New York City, found very high magnetic field levels between 35-150 mG (waist height) in the college fitness center and two adjoining areas (wrestling room and offices) located above four transformers, four network protectors, and the main electrical room. A subsequent ELF EMF contour survey study found, at the peak spot in the fitness center, the estimated worst case school -in -session floor levels were 850-mG.'3 Information on EMF levels is becoming widely available. The EMF Measurements Database is a proj- ect sponsored by the U.S. Department of Energy through the EMF Research and Public Information Dissemination (EMF RAPID) Program. The purpose of the project is to make measurements of electric and magnetic fields publicly available. Its Web site, http:/I www.emf-data.org/, allows the public to download a substantial amount of information on EMF levels in a variety of settings. Reducing Risk There are several steps for prudent companies to take to minimize exposure to adverse publicity, vexatious litigation, and possible financial awards regarding EMF. First, they should check their general liability and other insurance policies for coverage. If they have transferred property to or from others, the transactional documents or lease may have provisions that might shift the risk to other operations. If companies remain unsatified with insurance coverage or liabilities, they should find acceptable coverage before proceeding with other evaluations (and give serious consideration to a "claims made" policy coverage). if companies are satisfied that they have appropriate coverage for any potential claims, they may wish to investigate the nature of any EMF associated with their location, their business activities or their product. There are many competent consultants that can give an in-depth EMF report. But, businesses also can purchase simple EMF meters for under $200. Kcep in mind that this helps to develop information that may be subject to discovery in any future litigation. Therefore, it may be appropriate to contact legal counsel about having investigative studies conducted under the protections of attorney -client privilege. Because small handheld EMF meters are so inexpensive, it is not unreasonable to assume that employees, tenants, customers or others may measure EMF values, too. In addition to present activities, companies should keep EMF risk manage- ment in mind as they acquire or divest properties. @MAGNETO/MERCURY/TESTAREA/RMREFJ/FROCADE SESS: 1 COMP: 07/25/02 PG. POS: 4 Investigating the EMF values of business locations, activities or products may help avoid some nasty surprises. In a May 29, 2001 Complaint, in Arthur R. Slater, et al. v. City of Albuquerque," county employ- ees allege that they developed breast cancer because of exposure to electromagnetic field radiation and toxins while working in the basement of the county courthouse. The complaint states that, "The statistical probability that three men working in the same office will get breast cancer by chance alone is less that one in a trillion." The complaint also alleges that the county was aware that EMF exposure, "has been excessively high, at times in excess of 450 milliGaus . The industry standard for EMF strength is 3 milliGaus or less." As mentioned earlier, typical home and office exposures are about 0.01 to 0.08 µT. No one wants the adverse publicity, litigation exposure or surprise of learning their EMF levels are far above average, whether or not those EMF values will cause adverse health effects. If a company's evaluation shows levels above aver- age, the company could consult an expert on ways to reduce those values. Many high EMF readings are the result of improper wiring or faulty equipment and can be corrected easily and inexpensively. If the problem turns out to be more complex, at least the company can make an intelligent decision on how to proceed. In addition to evaluating EMF levels, companies may wish to acquire more information about EMF exposure or to distribute appropriate information to employees, tenants, or customers. Be very careful in any such effort. Even a properly conducted educational program intended to reduce public fears can substan- tially increase the pubic fear of EMF. Efforts to reduce public fears may only make them worse, 1 253 Cal.Rptr. 144 (Cal.Ct.App.1988). 2 518 So.2d 895, 897 (Fla.1987). 3 284 N.W. 742 (Neb. 1939). 631 P.2d 268 (1981). See, Alabama Power Co. v. Keystone Lime Co., 67 So. 833 (Ala. 1914), Central 111. Light Co. v. Nierstheimer, 185 N.E.2d 841 (111. 1962), and Chesapeake & Potomac Tel, Co. v. Red Jacket Consol. Coal & Coke Co., 121 S.E. 278 (W. Va. Ct. App. 1924). San Diego Gas & Electric Co. v. Superior Court, 13 Ca1.4th 893, 55 Ca1.Rptr.2d 724, 920 P.2d 669 (Cal Sup. Ct. Aug. 22, 1996). ° Roy W. Krieger, On the Line, A.B.A. Journal, Jan. 1994, at 40, note 7 at 45. a The Philadelphia Inquirer, Friday June 3, 1994, Section E, pg. 1. ° Gary Stix, "Are power -line fields a dead issue?" Scien- tific American, March 1998. 10 John R. and Sandra H. Altoonian v. Atlantic City Electric Company, No. CPM-L-1342-91; N.J Super:, Cape May Co. 11 David Thamann, "EMF Claims Could Still Overwhelm Insurers, 45 National Underwriter Property & Casualty -Risk & Benefits Management Vol 103, pg. 6 November 8, 1999. 12 Jon Munderloh, "Unseen, but not Unforeseeable - Tips abound on managing electro-magnetic interference" Build- ings, Vol. 93, no. 3, March 1999. ra http://www.vitatech.net/pub6.html. 14 No. 2001-3644, N.M. Dist., Benullo Co. THE REAL ESTATE FINANCE JOURNAL/ 5 @MAGNETO/MERCURY/TESTAREA/RM/REFJ/FROCADE SESS: 1 COMP: 07/25/02 PG. POS: 5 @MAGNETO/MERCURY/TESTAREA/RM/REFJ/FROCADE SESS: I COMP: 07/25/02 PG. POS: 6 9/1/2014 City of Palo Alto Planning, While I am aware that the City is not permitted by the Telecommunications Act of 1996 today to approve or deny cell towers on the basis of the health concerns of radio frequency, the following is something worth looking at and understanding before making a decision regarding the 3672 Middlefield Road, Palo Alto Little League Ballfield proposed Verizon tower And it is worth knowing that European regulations stipulate, based on health research of people living within proximity to towers, that towers such as the one that is being evaluated are never placed within 1000-1500 meters of public facilities like schools, childcare centers, children's playing fields, libraries, parks...all of which exist in this "ground zero" location for our neighborhood in Palo Alto. In Europe, the regulations stipulate an even higher distance from children's facilities like this one, as little bodies are more rapidly metabolizing than big bodies and therefore more at risk. While the issue of health concerns near celltowers is far from resolved, a conscious decision maker must err on the side of caution and prudence with such a decision if there is any question whatsoever as to safety. Please read the below carefully, from the industry magazine Business Insurance, and consider the implications for the City of Palo Alto, the Little League Ballpark, and the children in our community. While there are many grounds upon which to reject this application, I do urge you to reject the celltower proposal for 3672 Middlefield Road, which is the community ballfield for all of Palo Alto. Very Concerned, �n/n£. Lzft_ 6'06 Liiet�Shwv %'t. (n�� Iltto cl L1-3 0(2 Could Wireless Antennas Be the Next Asbestos? September 14, 2010 Read the entire article by Gloria Vogel in the September 13, 2010 issue of Business Insurance. www.businessinsurance.com/apps/pbcs.dll/article?AID=%2F20100912_%2FISSU E0401%2F30912998 0 Ms. Vogel is the managing director of New York -based Vogel Capital Management. She begins her analysis stating: . an issue that mimics asbestos and is being ignored by insurers could soon hit their pocketbooks. Simply stated, everyone's favorite form of wireless communication and commerce depends on radio frequency -producing base station antennas, which emit radio waves and microwaves that can harm humans. Few insurance claims have been filed to date; but in all respects, RF radiation closely tracks with the early development of asbestos claims. She continues: Based upon data from the Bureau of Labor Statistics and U.S. Census Bureau, it is estimated that as many as 250,000 workers a year are compelled to work in close proximity and in front of RF transmitting antennas. When combined with the 15 years this issue has been in existence, the pool of potential claimants could be staggering. Ms. Vogel clearly delineates the breadth of the issue in her definition of "the wireless ecosystem:" The wireless ecosystem should not be confused with the much smaller commercial telecom industry. The wireless ecosystem encompasses all FCC licensees (federal, state, local and commercial), site owners, property managers, contractors, third -party workers, the utility industry, hospitals, schools and universities, church organizations, banks/financial institutions, and the insurance industry. It involves every person or entity that may be physically or financially harmed by RF radiation. Ms. Vogel explains how workers' antenna exposure differs from cellphone exposure and references the legal precedent from Alaska that awarded total disability to a worker whose antenna exposure only slightly exceeded the FCC RF radiation safety limit: The significance of this topic is overlooked by insurers because of confusion between the harmful effects of cell phones and the damage caused by wireless antennas. Because there is no proven link yet established between cell phones and cancer, insurers see little exposure from this risk. However, there is a marked difference between radiation exposure from cell phones and exposure from wireless antenna systems: The antennas are hundreds of times more powerful. More importantly, there already is peer -reviewed science from the Institute of Electrical and Electronics Engineers linking RF radiation exposure to cognitive injuries. In addition, legal precedent has been established for such claims in AT&TAlascom and Ward North America Inc. vs. John Orchitt; State of Alaska, Department of Labor and Workforce Development, Division of Workers' Compensation. The July 2007 ruling affirmed a 100% disability award to a worker exposed to RF radiation that only slightly exceeded the FCC human exposure limits. By doing so, the Alaska Supreme Court established a legal precedent that recognizes the causal link between an RF radiation exposure and cognitive or psychological injuries including reduced brain function, memory loss, sleep disorders, mood disorders and depression. Ms. Vogel concludes by encouraging the insurance industry to be proactive about worker RF radiation safety and push for a solution from the private sector rather than to wait for government to act: The insurance industry tends to look backwards at historical claims to project future losses. In cases of emerging risk such as the issue of third -party worker overexposure to RF radiation, it would be far better for the industry to be anticipatory rather than reactive, as claims could develop quickly. It would be in the industry's best interests to pre-empt the plaintiffs' bar on this issue and secure a safe workplace for those third -party workers. Reich, Russ From: Xinggang Tong <xinggangtong@yahoo.com> Sent: Tuesday, March 18, 2014 1:42 AM To: Reich, Russ Subject: cell tower at little league baseball field in Michell park Dear Russ, I live on Grove Ave. Five years ago, the celiphone signal inside my house was very weak for either Verizon or AT&T. Over the past five years, the signals gradually get better. Now I don't need to worry about drop off calls anymore. The point is that they do not need to build another cell tower at the little league field anymore. Technology will only get better. I'm confident that Verizon and AT&T or Sprint will develop better technologies to provide better and faster wireless network without adding another cell tower. Sincerely, Xinggang Tong Resident at 3735 Grove Ave Palo Alto 1 Reich, Russ From: Covenant Children's Center <cccoffice@covenantchildrenscenter.com> Sent: Wednesday, March 26, 2014 4:25 PM To: Reich, Russ Subject: Opposition to Proposed Cell Towers at 3672 Middlefield Road Dear Russ, We are would like to register our opinion about the proposed cell tower at 3672 Middlefield Road, Palo Alto for the file and City Council's consideration. Covenant Children's Center (CCC) is located at 670 East Meadow Drive, Palo Alto and is opposed to the installation of the proposed cell tower. Unfortunately, I am unable to attend the meeting tomorrow night, so I am sending this email to register CCC's opposition CCC is concerned for the safety of the young children attending the Center due to 65 foot towers, electrical equipment and batteries being adjacent to the Center and in close proximity to the children. The cell towers would be extremely close to the children at our Center and exposing them to dangerous equipment and situations. Also, the towers and equipment are in close proximity to an electrical substation and high pressure PG&E trunk gas lines. Putting the cell towers so close to a substation, high pressure gas lines with children located at CCC, Fairmeadow, JLS, Hoover, Challenger, Abilities United, AchieveKids, the Library and Community Center, Mitchell Park and Little League Ball Players is absurd when considering the risk of chemical battery fire, earthquakes and lightning. We cannot put young children of our community at risk! The two 65 foot cell towers are aesthetically destructive to the neighborhood, as they will be in plain sight and unpleasing to the eye. With a beautiful library, neighborhood and Mitchell Park, the City should not allow the unpleasant sight of cell towers in such a beautiful area. The Little League Ball Park is zoned R-1, so homes, schools and parks are surrounding the Ball Park. Installing a cell tower is not a good fit with homes, school and parks. Not to mention that the Ball Park was not created to house cell towers. The purpose of the Ball Park was to provide children of the community a safe and fun environment to play baseball, grow and learn. Approving the cell towers will set a dangerous precedent for other cell towers to be approved and installed in residential neighborhoods. Our experience with Verizon's coverage is that Verizon has the best coverage for voice and data than any other carrier in this neighborhood. There is no reason why Verizon needs additional cell towers in this neighborhood, as coverage is more than adequate. We cannot support the proposed cell tower, as the safety of young children is our utmost concern! Thank you, Kathy Hea Director Covenant Children's Center, Inc. 670 East Meadow Drive Palo Alto, CA 94306 (650) 493-9505 www.covenantchildrenscenter.com 1 Reich, Russ From: Mei-Hsia Tan [meihsia@gmail.com] Sent: Tuesday, March 08, 2011 10:33 AM To: Reich, Russ Cc: Ray Lin Subject: Opposition to PALL Cell Tower on Middlefield Road Dear Russ, My husband and I are owners and residents of our home located on Grove Avenue. We are writing to urge you to consider making a recommendation against the building of cellphone towers for use by Verizon at the Palo Alto Little League field. We are members of Palo Alto Little League with two young daughters, aged 6 and 1. As parents, we are deeply concerned at increasing the health risks posed to our children by the proposed cell towers. It seems wrong that the financial benefit of building these cell towers would be limited to a private -the costs wool be_ borne by many for generations to come. Please oppose these cell towers for the sake of those in our neighborhood. Many thanks for your attention. Sincerely, Ray Lin and Mei-Hsia Tan 3825 Grove Avenue Palo Alto, CA 94303 Page 1 of 1 Reich, Russ From: John Morris [evergreenwatchgroup@yahoo.com] Sent: Wednesday, March 09, 2011 8:32 AM To: Reich, Russ Subject: Middlefield Little League Field... Please, No Verizon Cell Tower! Mr. Reich, I am opposed to Verizon's proposed cell tower at the Middlefield Little League Field. Thank you, John Morris 3/10/2011 rage iot1 Reich, Russ From: Bryan & Tene Kember [btkember@sbcglobal.net] Sent: Saturday, March 05, 2011 3:28 PM To: Reich, Russ Subject: against cell phone tower in Little League Field Please consider installing the cell phone tower away from the playing field and away from the sight of the neightbors on Middlefield Rd. It seems that this could be easily resolved by moving the tower father into the park away from everyone and wouldn't pose a direct hazard to the ball players in the Little League Park. We didn't think that the area you are looking at is zoned for commercial use. Isn't getting money for putting up the tower considered a business proposition that is against the zoning laws? Respectfully submitted, Bryan & Tene Kember 3717 Middlefield Rd. Palo ALto, CA 94303 3/10/2011 Reich, Russ From: Ran Hu [ran_hu@hotmail.com] Sent: Thursday, January 20, 2011 7:56 PM To: kallen@kilpatricktownsend.com; hwanghoo@yahoo.com; btkember@sbcglobal.net; richardbauman@att.net; sofya_t@hotmail.com; jjmacl@pacbeli.net; alutz@hotmail.com; xcliao@yahoo.com; bjcooley@earthlink.net; Itashbook@yahoo.com; jay@chesavage.com Cc: Reich, Russ Subject: RE: Attention Middlefield Road Residents -Survey Cell Tower at Little League Park Dear Neighbor, Thank you to Ken for forwarding the cell -phone tower discussion to all neighbors. This helps us be aware of what happening in our neighborhood. We welcome the effort to improve cell phone use quality in our neighborhood. At the meantime, as resident along Middlefield road, we share the same concern that the tower(s) should not be installed too close to residential area, schools (including preschool) and library. Being exposed to high radiofrequency (RF) energy is the major concern. Although there is no scientific conclusion yet about RF's potential health hazard, there are a lot research done and raising concerns about it. The term of "universal precaution" might be applicable to this issue. And, it seems "400 -meter safe zone" is generally mentioned when people consider about the RF safety. To balance the immediate benefit to life quality with better cell phone signal and long term benefit from reducing possible exposure of radiation, we think a cell tower is necessary but should keep a certain distance from residential area. Little league ballpark is too close to residential area in our neighborhood. If Mitchell park area is the only choice, mid of park area might be better (away from resident, schools and library). It seems this is already a tower from Cingular in the park near tennis court, reusing or co -using the existing tower sounds reasonable too. Somewhere along freeway as an alternative place to host cell phone tower may cause less concerns from neighborhood. Regards, Rosalie & Peter 3785 Middlefield Road Subject: Attention Middlefield Road Residents -Survey Cell Tower at Little League Park Date: Wed, 19 Jan 2011 16:34:12 -0500 From: kallen@kilpatricktownsend.com To: hwanghoo@yahoo.com; btkember©sbcglobal.net; richardbauman@att.net; sofya_t@hotmail.com; jjmacl@pacbell.net; alutz@hotmail.com; xcliao@yahoo.com; bjcooley@earthlink.net; Itashbook@yahoo.com; ran_hu@hotmail.com; jay@chesavage.com CC: Russ.Reich@CityofPaloAlto.org Dear Neighbor: As some of you may already know, there is a proposal to site several cellular telephone antennas on the light stanchions and in an artificial tree on the Little League site in the 3700 block of Middlefield. Since you are the residents most likely to be visually and otherwise affected by this development, I am specifically soliciting your opinion. PLEASE REPLY TO THIS EMAIL WITH YOUR COMMENTS, FOR OR AGAINST THE SITING AND ANY SPECIFIC CONCERNS. 1/24/2011 Reich, Russ From: Sent: To: Subject: Dear Mr. Reich Hirokazu Miura [hiromiura@sbcglobal.net] Thursday, January 27, 2011 1:23 AM Reich, Russ Celler phone antennas in Little League Baseball Park I understand you are collecting opinions from Adobe area neighbors on the cellar phone antennas considered in the little league baseball park. Followings are my thoughts on this issue. I work at NASA Ames as an aerospace engineer. Recently, one of the projects I was a small part of it considered Electro Magnetic Interference (EMI) to sensitive electronic devices. I don't know how such risks may propagates in the future. Probably no one knows for sure. Under such circumstances, it will be better to be careful in reducing risk as much as possible, I am an engineer, but don't have technical background on the physical health hazard of electro-magnetic field induced by the cellular telephone relay site. -engine nginccrizg a __ idea, and even medical specialists working on health hazard issues involving environmental; electromagnetic fields may not have sufficient data yet. In fact, even On the other hand, there seem to be reported incidences that may need to pay attention to them. They are interferences to sensitive wireless devices, such as push-button type engine starting device introduced to some new model autos. One report described the incidence that various new model cars failed starting engine at some location in LA. For this case, the bad guy was not cellular phone relay site, but it was traced to a device emitting just strong enough electro-magnetic waves. I am sure that our life will be dependent more and more on wireless communication devices, such as cellular phones, iPads, garage door opener, etc., hence we have to live in the electro-magnetic field. Futuristic medical device may have to depend on wireless communication as a vital life line. Unfortunately, we don't have sufficient data on the practical as well as health hazard of exposure to certain level and frequency range of electro magnetic field. For this time being, we may have to consider that electromagnetic waves could be double sided sword. Therefore, until we will have sufficient data about negative side effects of electromagnetic field to our overall quality of life, it will be a good idea to spread the sources of high intensity electromagnetic field over the area as evenly as possible. In other words, it will be desirable to avoid creating high concentration of strong sources electromagnetic emission. In and around Michell park area, there are already some towers that may look like living trees. The City of Palo Alto should take the leadership to spread the sources of electromagnetic emission devices evenly within the city boundary. Hiro Miura 3815 Middlefield Rd. 1 rage i or 1 Reich, Russ From: Somnuk Ratanaphanyarat [sratana@sbcglobal.net] Sent: Tuesday, May 10, 2011 10:36 PM To: Reich, Russ Subject: Oppose to the cell tower Dear Russ, I am writing to oppose the proposal of building a cell tower at the ballpark near Mitchell park in Palo Alto. It is not necessary to build a cell tower at this location. Besides, such an infrastructure should be built in a commercial area and not in the residential area, especially the area which is surrounded by several schools with a large number of children in the neighbourhood. It is simply wrong. Regards, Somnuk Ratanaphanyarat & Carolin Wang (Palo Alm Resi en s 5/11/2011 Reich, Russ From: Katie Talbot <katiea.talbot@hotmail.com> Sent: Thursday, October 03, 2013 11:19 PM To: French, Amy; Reich, Russ Subject: Please do not allow cell phone towers at the little league park Dear Ms. French and Mr. Reich, Please do not approve Verizon's plan to ruin the lovely Palo Alto Little League ball park with more cell phone towers. I am at the ballpark at least twice per week this fall with my children. I've never had a problem witl cell phone signal or availability. There is no need to place more towers, particularly where so many childrer play. We talked about this before, and more than 80% of the neighbors asked that Palo Alto not allow Verizon to proceed. Why this is this being revisited? I thought you understood that we said "no!" Best regards, Katie Talbot Stanford 1 9/7/2014 City Planning of Palo Alto, I am writing to request that you REJECT the application for a Verizon Celltower at 3672 Middlefield Road in Palo Alto as this 65 foot monopole would be in the midst of a residential neighborhood and will certainly decrease our property values. I have attached substantial documentation to this effect in the form of two nationwide real estate valuation industry standard journal articles. The first is the Summer 2003 Assessment Journal article by Carol McDonough PhD entitled: "The Impact of Wireless Towers on Residential Property Values." It discusses devaluation of residential properties that are in the vicinity of power lines and mobile phone antenna sites. Assessment Journal is the publication of the International Association of Assessing Officers. 2005 Appraisal Journal published a study on devaluation of residential properties in proximity to cell phone towers. The Appraisal Journal is a publication of the Appraisal Institute. The Appraisal Institute is a global membership association of professional real estate appraisers, with 22,000 members and 92 chapters throughout the world. Organized in 1932, its mission is to support and advance its members as the choice for real estate solutions and uphold professional credentials, standards of professional practice and ethics consistent with the public good. The Appraisal Institute is the acknowledged worldwide leader in residential and commercial real estate appraisal education, research, publishing and professional membership designation programs. Its extensive curriculum of courses and specialty seminars provides a well-rounded education in valuation methodology. After careful review of these documents, it is clear that there will be a substantial impact to my property value across the street from this proposed monstrosity as well as to my adjacent neighbors, and therefore by implication to the surrounding community as well. I therefore am strongly objecting to this proposed celltower and ask that you REJECT the 65 foot celltower proposal at 3672 Middlefield Road in Palo Alto. Thank you for your consideration. cyTA- '►l ,14 DL)L ;Fi -7tc ' JT-0 }-- S,rrnmer2003 • 25 The Impact of Wireless Towers on Residential Property Values BY CAROL C. McDONOUGH, PhD The Telecommunications Act of 1996 authorized the Federal Communi- cations Commission (FCC) to expand the wireless telephone industry by auc- tioning off six personal communication services (PCS) licenses per geographic area. Because wireless communication antennae must be mounted on high, unobstructed locations, the build out of the PCS industry has led to the need for additional communications towers. Abutters and neighbors of these com- munication towers have often opposed their construction, citing aesthetic and health concerns, and alleging a conse- quent decrease in property values. Such opposition has primarily targeted tow- ers located in residential zones, where such towers are generally less harmoni- ous with surrounding structures. This article examines the impact of proxim- ity to a wireless tower on residential property values. Mundy (1992) and Patchin (1991) re- port that a nuisance feature, or source of stigma, typically reduces the market value of a property. It is the perceived undesirability of a source of stigma that leads to reduction in property value. As Farber (1998) explains, perceived risks are a function of subjective risk factors as well as statistical risks; whether the source of the perception is quantitative or subjective, the effect on property val- ues may be the same. In Komis v. City ofSanteFe, the Supreme Court of New Mexico awarded damages for the perceived decline in property value resulting from a source of stigma, even when no objective evidence demonstrated that the perceived nuisance was unsafe, and when market loss was not proven by comparable sales data. The Criscuola decision established the "fear in the marketplace" theory of damages, by al- lowing fear in the marketplace regarding transmission lines, rather than actual epidemiological evidence of adverse health effects from electromagnetic fre- quencies (EMF), to affect appraised valuation. The literature (for example, Mundy 1992, Levitt 1995, and Harrison 1989) includes high-tension wires and util- ity poles as sources of stigma to a property. Are wireless towers also a source of stigma? Because most wireless towers have been constructed recently, time - series data for a valid empirical study of Carol C. McDonough, PhD, is professor of economics at the University of Massachusetts in Lowell, Massachusetts. The statements made or views expressed by authors in Assessment Journal do not necessarily repre- sent a policy position of the International Association of Assessing Officers. 26 ` Assessment journal the impact of wireless towers on prop- erty values are virtually unavailable. Therefore, the first step is to review re- search on the impact of electric power lines and towers on property values, be- cause they may have effects similar to wireless towers. If it is found that (1) proximityto electrical lines reduces resi- dential property values, and (2) the factors causing reduced valuation near electric lines also apply to proximity to wireless towers, and (3) these factors Such opposition has primarily targeted towers located in residential zones, where such towers are generally less harmonious with surrounding structures. have led to significant concern about proximity to wireless towers, then it may be inferred that proximity to a wireless tower may reduce residential property values. POWER LINES AND PROPERTY VALUES: SOME EVIDENCE The scientific community has conducted numerous studies of the health effects of proximity to power lines. The first epi- demiological study linking EMF exposure and cancer incidence was pub- lished in 1979.. In June of 1998, a panel convened by the National Institute of Environmental Health Sciences con- cluded that low -frequency EMF should be classified as a Group 2B human car- cinogen under the International Agency for Research on Cancer classification scheme. This means the agent is possibly carcinogenic to humans. The California Department of Health's 1999 Fact Sheet on EMF points out that epidemiology studies of chilclhoocl leukemia provide enough evidence to classify EMF as a pos- sible human carcinogen. Numerous studies have examined the impact of proximity to power lines on property values: Kinnard (1967) reported that proxim- ity to a tower line had little negative impact on residential market values in several Connecticut subdivisions. Higher priced subdivisions showed slightly greater negative impact from power line proximity. Colwell (1990) found that proximity to power lines was associated with dimin- ished selling prices in two Illinois subdivisions. In Delaney and Timmons's (1992) sur- vey of appraisers, 84 percent responded that the market value of residential prop- erty is negatively affected when located proximate to a high voltage electric power line; on average, market price is 10.01 percent lower than the price of compa- rable properties. The most frequently cited factors for property value reduction were visual unattractiveness and issues of health and safety. Kung and Seagle's attitudinal survey (1992) found that 53 percent of the Ten- nessee homeowners surveyed considered transmission lines and towers an eyesore. Once informed of possible health risks, 87 percent felt power lines and towers would adversely affect property values. Kroll and Priestley (1992) reported that the perceived impact of transmis- sion lines cluster's into three areas: health and safety, aesthetics, and prop- erty values. They concluded that overhead transmission lines have the potential to reduce the sales price of single-family homes by zero to 10 percent. Gimmy's (1994) research on power ,Summer 2003 • 27 limes and California residential property values found diminutions of between 18 and 54 percent in lot values from properties abutting power line easements. Studying residential home prices in Vancouver, Canada, Hamilton and Schwann (1995) reported that properties adjacent to 60 kV power lines lost 6.3 percent of their value due to proximity and the visual impact. According to the Cowger, Bot.temiller, Cahill study (1996), the value of Oregon single-family residential property fell by less than 10 percent because of proxim- ity to overhead transmission lines. Gregory and von Winterfeldt (1996) determined that the public perception of health risks associated with proximity to power lines led to a reduction in prop- erty value: post -19'79 property valuation studies showed a decline in values of 5 to 10 percent.. According to Bolton and Sick (1999), real estate professionals, (even those per- forming studies for power line companies) believed that concern about the adverse health effects of EMI` from power lines resulted in a reduction in the values of nearby properties. Bolton's earlier study (1994) found that the gen- eral public's perception that EMF were harmful drove down the values of adja- cent property. jaconetty (2001) concluded that, on a subjective level, most people believe that the electromagnetic fields gener- ated by high -voltage towers and lines adversely influence real property values, primarily because of health concerns. SIMILARITIES BETWEEN POWER LINES AND WIRELESS TOWERS According to the studies cited above, proximity to electric lines and towers is associated with a reduction in residen- tial property values because of aesthetic and health concerns. In this section, the similarities between the aesthetic and health effects of electric lines and wire- less towers are examined. Consider first aesthetic similarities. The literature states that the view en- joyed from a property may affect its value —a poor view, such as that of util- ity poles and high-tension wires, detracts from value. The aesthetic effects of trans- mission lines and wireless towers are similar. Both electric lines and wireless towers rise above building height in typi- cal single-family neighborhoods; therefore, they are visible for some dis- tance. Unless camouflaged, these structures typically do not. complement rural or suburban landscapes. Are health concerns surrounding eiec- ...perceived risks are a function of subjective risk factors as well as statistical risks; whether the source of the perception is quantitative or subjective, the effect on property values may be the same. tric lines also applicable to wireless tow- ers? Technically, radio waves from wireless antennae differ from the electromag- netic fields produced by power lines. Although both radio waves and EMF are part. of the electromagnetic spectrum, electric power in the United States op- erates at 60 Hz, while cellular phones operate at 860-900 MHz, and PCS phones operate at about 2000 MHz. As Moulder (1998) explains, radio waves 28 • ilssess-menf. journal are non -ionizing, that is, the energy of the particles is too low to break chemi- cal bonds. Power lines are nonthermal, that is, they produce no significant non - ionizing radiation. Fields from power lines do not radiate energy into space, and the fields cease to exist when power is turned off. However, the technical distinction be- tween radio waves emitted by wireless antennae and low -frequency EMIF emit- ted by electric lines is not generally In other cases, courts have ruled for the wireless companies, finding that community opposition was not sufficient grounds for denying a permit for tower construction. understood. The federal government has issued guidelines regarding safe lev- els of exposure for both power lines and wireless antennae, but there is ongoing controversy within the scientific commu- nity about whether these government guidelines are too lax, Because a final verdict on the safety of both electric lines and wireless antennae is still moot, many people are fearful about living in prox- imity to either type of structure. As Rikon (1996) points out, the fear in mar- ketplace argument established by the Criscuola decision regarding EMF has also been invoked regarding health con- cerns about cell towers. EVIDENCE OF CONCERNS ABOUT WIRELESS TOWERS In this section, evidence is presnted about the significant level of concern about: the aesthetic and health effects of wireless towers. The evidence is grouped into three categories: (1) law- suits regarding wireless tower construction, (2) organizations and con- ferences dealing with the harmful effects of wireless towers, and (3) municipal moratoria on wireless tower construction and mandatory visual impact studies. Lawsuits Numerous lawsuits have been filed regard- ing the actual or proposed construction of wireless towers. As Foster and Carrel (1999) discuss, case law on the issue is somewhat ambiguoUS. Some courts have ruled for the municipality opposing wire- less tower construction. In Franklin v. Nextel, for instance, the court found that a 120 foot wireless tower erected in a resi- dential neighborhood was so incongruous and damaging to the neigh- borhood that it must be dismantled. In Jacksonville, Florida, in 1996, community opposition to a 150 foot tower in a resi- dential neighborhood led the wireless company, InterCel, to take it down. In other cases, courts have ruled for the wireless companies, finding that community opposition was not sufficient grounds for denying a permit. for tower construction. For instance, in Westinghouse v. Hampton, the court found that the Telecommunications Act pre- empts tower regulation based on perceived health concerns and that "aes- thetics alone... [are not] ... an adequate reason to deny... use of...property." (AMP -USA, dealing specifically with the location of towers in residential neigh- borhoods, found that "towers cannot always be compatible with the character of the surrounding property. [1] n order to rneet...demand...towers have to be...located in...residential, commer- cial, and rural areas. Suni mer 2003 • 29 Organizations, Conferences, and International Concerns Concerns about wireless towers have re- sulted in the formation of organizations and the scheduling of conferences to voice these concerns. The EMRAlliance argues that electromagnetic radiation from wireless antennae is hazardous to life and public health. The Communi- cation Workers of America and the EMR Alliance jointly published Your Commu- nity nity Guide to Cellular Phone Towers to help consumers mobilize against the place- ment of wireless transmission facilities that could adversely affect their health, safety, property values, or the aesthetics of the community. The 2000International Conference on Ce11 Tower Siting included testimony from numerous scientists on the health effects of exposure to high frequency EMF. Several questioned the safety of current. standards for exposure to radia- tion from wireless antennae. The US Supreme Court, in January 2001, denied a Ivrit. for certiorari filed by the Ad Hoc Association of Parties Concerned about the Federal Conunu- nications Commission Health and Safety Rules (AHA). Fifty-four petitioners filed as co petitioners; similar appeals by the communications Workers of America and The Cellular Phone Task Force were consolidated with the AHA case. The AHA hacl charged that the FCC's ruling, that adverse health effects cannot be dis- cussed in reviewing zoning rules or permit applications for cell towers, de- nies the public their first amendment right to free speech. In Europe; opposition to cell tower construction has led to lawsuits and the destruction of wireless equipment. In an attempt to quell concerns about the health effects of wireless towers, one Ital- ian mobile phone operator, Onmitel, launched an Internet site on which residents can check the amount of elec- tromagnetic radiation emitted by nearby cell phone towers and antennas. Municipal Regulations Responding to community concerns about the negative impact of wireless towers, more than 150 municipalities have adopted temporary moratoria on wireless tower construction. Although the Tele- communications Act prevents a municipality from permanently banning wireless tower construction, the Act does allow municipalities to establish criteria based on aesthetic —but not health— con- siderations. Community concern has also led to municipal enactment of zoning ordinances regulating wireless tower construction by • Requiring that the visual impact of wireless towers be disclosed prior to construction • Limiting tower construction to muni- cipal sites, or encouraging such sites • Encouraging co -location and the use of concealed structures In response to community concerns about the aesthetics of wireless towers, so-called stealth towers —in the form of pine and palm trees —have been erected in more than 200 locations in the United States. The issue of the visual impact. of wireless towers has also been addressed by placing antennas on silos, church steeples, tall buildings, and water towers. CONCLUSION It has been shown that aesthetic and health concerns about electric lines and towers lead to a reduction in the valua- tion of nearby residential properties. There are similar concerns about wire- less towers; these concerns are widespread and have been expressed in multiple venues. Therefore, proximity to a wireless tower needs to be considered as a negative amenity that may reduce residential property valuation. However, the severity of the aesthetic impact may be mitigated by screening and conceal- ment of the wireless towers. 30 • Asvessment journal REFERENCES Albany Law School. 1998. Case Law Deci- sions Under the Telecommunications Act of 1996 Local Zoning Provisions (Sec. 704) . Bolton, David R. 1994. Properties Near Power Lines and Valuation. Issues: Condem- nation. or Inverse Condemnation? Institute on Planning, Zoning, and Eminent Do- main, 1-10. Bolton, David R., and Kent A. Sick. (Spring) 1999. Power Lines and Property 'Values: The Good, the Bad and the Ugly. The Urban Lawyer 31:331-334. Colwell, Peter E (Spring) 1990. Power Lines and Land Value. TheJournal of Real Estate Research, 117-127. Cowger, J.R., Steven C. Bottenniller, and James M. Cahill. (September/October) 1996. Transmission Line Impact on Resi- dential Property. Right of Way. Delaney, Charles J., and Douglas Timmons. (Summer) 1992. High Voltage Power Lines: Do They Affect Residential Property Value? TheJournal of Real Estate Research, 315-329. Denison, D.C. (March 28) 2001. Q. Which is the Tower? A. Both, Boston Globe, Al, A13. Farber, Stephen. 1998. Undesirable Fa- cilities and Property Values: A Summary of Empirical Studies. Ecological Economics 24:1-14. Federal Communications Commission Wireless Telecommunications Bureau. (April 23) 1996. Fact Sheet #1. Washing- ton, DC:FCC. Foster, Robert B., and Mitchell A. Car- rel. (Fall) 1999. Towers of Babble: The Continuing Struggle Over Wireless Siting Issues Under the Telecommunications Act of 1996. The Urban Lawyer, 849-862. Gimmy, Arthur. 1994. The Potential Impact of EiVIE on Property Values. New Orleans: EME Regulation and Litigation Institute. Gregory, Robin and Detlofvon Winterfeldt. 1996. The Effects of Electromagnetic Fields from Transmission Lines on Pub- lic Fears and Property Values. Journal of Environmental Management 48:201-214. Grissom, Terry. 1994. Fundamentals of Real Estate Appraisal., 6th ed. New York, NY: Real Estate Education Company. Hamilton, Stanley W., and Gregory M. Schwalm. (November) 1995. Do High Voltage Electric Transmission Lines Af- fect Property Value? Land Economics 71:436-444. Harrison, Henry S. 1989. AppraisingResi- dences and Income Properties. New Haven, CT: H2 Company. International Conference on Cell Tower Siting -Linking Science and Public Health. (June 7-8) 2000. Proceedings Salzburg, Austria: International Confer- ence on Cell Tower Siting. Jaconetty, Thomas A. (May/June) 2001. Do You Want Your Children Playing Under Those Things?: The Continuing Controversy About High Voltage Electro- magnetic Fields, Human Health, and Real Property Values. AssessmentJournal, 23-30. Kinnard, William N., Jr. (April) 1967. Power Lines and Residential Property Values, The AppraisalJournal, 269-284. Kroll, Cynthia A. and Thomas Priestley (July) 1992. The Effects of Overhead Trans- mission Lines on Property Values. Edison Electric Institute Siting and Environmen- tal Planning Task Force. Kung, Hsiang-te, and Charles F. Seagle. (July) 1992. Impact of Power Transmis- sion Lines on Properly Values. TheAppraisal Journal, 413-418. Levitt, B. Blake. 1995. ElectromagneticEields. NewYork: Harcourt Brace and Company. Summer 2003 • 31 Moulder, John E. (August) 1998. Electro- magnetic Fields and, Human Health. jmoulder@its.mcw.edu. Mundy, Bill. (January) 1992. Stigma and Value. The AppraisalJournal 7-13. Naik, Gautam. (January 5) 2001. Towers of Babble: Cell -Phone Sites Fan European Anxieties. 1Vall Street Journal, Al, A6. Patchin, Peter J. (April) 1991. Contami- nated Properties: Stigma Revisited. The Appraisal Journal, 167-172. Rikon, Michael. (January) 1996. Electro- magnetic Radiation Field Property Devaluation. The AppraisalJournal, 87-90. Senville, Wayne. (Fall) 1997. A Wireless Miscellany. Planning ConnrnissionetsJournal 28:10-20. CASE LAW REFERENCES Alexandra Cellular Corp. v. Town of Roches- ter, slip.op (Sup.Ct. Ulster Co. 1997). American PCS v. Fairfax County ZBA, 40 Va. Cir.211 (Cir. Ct. Va. 1996). AT&T Wireless v. City of Chamblee, 10 E. Supp. 2d 1326 (N.D. Ga 1997). AT&T Wireless PCS v. City Council of Vir- ginia Beach, 979 F. Supp. 416 (E.D. Vi 1997). AT&T Wireless Services of Ida. v. Orange County, slip op. (M.D.F1.1997). AWA CS v. Hearing Board of Newtown Town- ship, 702 A.2d 604 (Pa. Commw. 1997). Bell Atlantic Nynex Mobile v. Lonergan, slip op. (Sup. Ct. West. Co. 1997). BellSouth Mobility, Inc. v. Gwinnett County Board of Commissioners, 944F. Supp.923 (N.D. Ga 1996). Campanelli. v. AT&T Wireless Services, slip op. (Ohio Ct. Appl. 1997). Cellular Telephone Company v. Town of Oys- terBay, 166 F. 3d 490 (2d Cir. 1999). Century Cellunet of So. Mich. v. City of Ferrysburg; slip op. (WD. Mi 1997). Crown. Communications v. Zoning Hearing Board of the Borough of Glenfield, 679 A.2d 271 (Pa. Conimw. 1996). Franklin,MA v: Nextel Comm. (Appeals Ct. Mass, March 2000). Genesee Telephone Co. Szmigel, slip op. 1997 W.L. 800699 (Sup. Ct. Monroe Co. 1997). Illinois RSA No.3, Inc. v. County of Peoria, 963 F. Supp 732 (C.D. 111. 1997). In reGraeme, 975 E Supp. 570 (D. Vt. 199 7). Iowa Wireless Services v. City of Moline, 29 F. Supp. 2d 915 (C.D. 111. 1998). Kapton v. Bell Atlantic Nynex Mobile, 700 A.2d 581 (Pa. Commw. 1997). New Brunswick Cellular Telephone Co. v. Bor- ough of South Plainfield Board of Adjustment. 701 A.2d 1281 (NJ. Super. 1997). Omnipoint. Communications MB Operations v. Town of Lincoln, 107 F. Supp. 2d 108 (D. Mass.2000). OPM-USA Inc. v. Brevard County, 7E Supp. 2d 1316 (M.D. Fla. 1997). Paging, Inc. v. Board of Zoning Appeal, 957 F. Supp. 805 (WD. Va. 1997). Smart S MR of New York Inc. v. Borough of Fair Lawn Board of Adjustment, slip op. (NJ. 1998). Sprint Spectrum LP v. Jefferson County, 968 F Supp. 1457 (N.D. AI. 1997). Sprint Spectrum L.P. v. Town ofEaston, 982 F. Supp.47 (E.D. Mass.1997). Sprint Spectrum L.P. v. Town of Farmington, 1997 U.S. Dist LEXIS 15832 (D. Conn. Oct. 6, 1997). Sprint Spectrum v. Medina, 924 F. Supp. 32 • Assessment Journal 1036 (W.D. Wash. 1996). Sprint Spectrum LP v. Willoth (Town of Ontario), slip op. (W.D. N.Y. February 19, 1998). Sprint Spectrums LP v. Zoning Board of Ap- peals of Guilderlan.d, slip op. (Sup. Ct. Alb. Co. 1997). 51'rin.t Spectrum LP v. Zoning Hearing Board of East Nottingham Township, slip op. (E.D. Pa. 1997) . sprint v. Town of West Seneca, slip op (Sup. Gt. Erie Go. 1997). TCG Detroit v. City . of Dearborn, 977 F. Supp. 836 (E.D. Mi. 1997). Virginia Metronet v. Board of Supervisors, 984 E. Supp.966 (E.D. Va. 1998). Westel Milwaukee Co. v. Walworth County, 205 Wisc. 2d 242, 556 N.W. 2c1 107 (Ct. Appl. Wisc. 1996). Western. PCS II Corp. v. Extraterritorial Zoning Authority, 957F. Supp. 1230 (D.N.M. 1997). Western PCS II Corporation v. Santa Fe, 957 F. Supp. 1230 (D.N.M. 1997) Westinghouse Electric Corp. v. Council of Town. of Hampton, 686 A.2d 905 (Pa. Commw. 1996). NEW PRODUCTS ! ASCENDMvlAP GIS . .. ASCENDZVR 1 SCEND WEB INQUIRY F.LH-HA NCED SUPPOFn For,: 1N i-RANET PUBLIC ACCESS _1;Ax SEnvici: Fnu4s Contact AS!X for further information at Asceniin=fo asix.com. Jedtuies abstract 256 This article examines whether proximity to cellular phone towers has an impact on residential property values and the extent of any impact. First, a survey approach is used to examine how residents perceive living near cellular phone base stations (CPBSs) and how residents evaluate the impacts of CPBSs. Next, a market study attempts to confirm the perceived value impacts reported in the survey by analyzing actual property sales data. A multiple regression analysis in a hedonic pricing framework is used to measure the price impact of proximity to CPBSs. Both the survey and market sales analysis find that CPBSS have a negative impact on the prices of houses in the study areas. The Appraisal lourual,5ummer 2005 The Impact of Cell Phone Towers on House Prices in Residential Neighborhoods by Sandy Bond, PhD, and Igo -Krung Wang he introduction of cellular phone systems and the rapid increase in the number of users of cellular phones have increased exposure to electromagnetic fields (FMFs). Health consequences of long-term use of cellular phones are not known in detail, but available data indicates that development of nonspeciliichealth symptoms is possible,' Conversely, it appears health effects from cellular phone equipment (antennas and base stations) pose few, if any, known health hazards.2 A concern associated with cellular phone usage is the siting of cellular phone transmitting antennas (CPTAs) and cellular phone base stations (CPBSs). In New Zealand, CPBS sites are increasingly in demand as the major cellular phone companies there, Telecom and Vodafone, upgrade and extend their network cov- erage. This demand could provide the owner of a well -located property a yearly income for the siting of a CPBS.' However, new technology that represents po- tential hazards to human health and safety may cause property values to dimin- ish due to public perceptions of hazards. Media attention to the potential health hazards of CPB Ss has spread concerns among the public, resulting in increased resistance to CPBS sites. Some studies suggest a positive correlation between long-term exposure to the electromagnetic fields and certain types of cancer;' yet other studies report inconclusive results on health effects.' Notwithstanding the research results, rneclia reports indicate that the extent of opposition from some property owners 1. Stanislaw Szmigielski and Elizbieta Sobiczewska, "Cellular Phone Systems and Human Health —Problems with Risk Perception and Communication,' Environmental Management and Health 11, no. 4 (2000): 352-368, 2. Jerry R. Barnes, "Cellular Phones: Are They Safe?" Professional Safety 44, no. 12 (Dec. 1999): 20-23, 3. R. Williams, "Phone Zone —Renting Roof Space to Ma Bell," The Property Business 12 (April 2001): 6-7. 4. C. M. Krause et al., "Effects of Electromagnetic Field Emitted by Cellular Phones on the. EEG During a Memory Task," Neuroreport 11, no. 4 (2000): 761-764. 5. Independent Expert Group on Mobile Phones, Mobile Phones and Health (Report to the United Kingdom Govern- ment, 2000), http://www.iegmp.org.uk. affected by the siting of CPBSs remains strong!' How- ever, the extent to which such attitudes are reflected in lower property values for homes located near CPBSs is not known. Understanding the impact. of CPBSs on property values is important to telecommunications compa- nies both for planning the siting of CPBSs and for determining likely opposition from property own- ers. Similarly, property appraisers need to under- stand the valuation implications of CPBSs when valuing CPBS-affected property. The owners of af- fected property also want to understand the magni- tude of any effects, particularly if compensation claims or an award for damages are to be made based on any negative effects on value. The research here uses a case study approach to determine residents' perceptions towards living near CPBSs in Christchurch, New Zealand, and to quantify these effects in monetary terms according to an increasing or decreasing percentage of prop- erty value. The case study uses both an opinion sur- vey and an econometric analysis of sales transac- tion data. A comparison of the results can be used to help appraisers value affected property as well as to resolve compensation issues and damage claims in a quantitative way. Further, the results provide a potential source of information for government agen- cies in assessing the necessity for increased infor- mation pertaining to CPBSs. The following provides a brief review of the cel- lular phone technology and relevant literature. Then, the next section describes the research procedure used, including descriptions of the case study and control areas. The results are then discussed, and the final section provides a summary and conclusion. Cellular Telephone Technology' Cellular (mobile) telephones are sophisticated two- way radios that use ultrahigh frequency (UHF) ra- dio waves to communicate information. The infor- mation is passed between a mobile phone and a net- work of low -powered transceivers, called mobile phone sites or cell sites. As mobile sites are very low powered they serve only a limited geographic area (or "cell"), varying from a few hundred meters to several kilometers; they can handle only a limited number of calls at one time. When a mobile phone user on the move leaves one cell and enters another, the next site automatically takes over the call, al- lowing contact to be maintained. When a mobile phone call is initiated, the phone connects to the network by using radio signals to communicate with the nearest mobile phone site. The mobile phone sites in a network are interlinked by cable or microwave beam, enabling phone calls to be passed from one cell to another automatically. A mobile phone site is typically made up of a mast with antennas connected to equipment stored in a cabinet. Power is fed into the cabinet by underground cable. The antennas are designed to transmit most of the signal away horizontally, or just below hori- zontal, rather than at steep angles to the ground. Mobile phone sites can only accommodate a lim- ited number of calls at any one time. When this limit is reached, the mobile phone signal is transferred to the next nearest site. If this site is full or is too far away, the call will fail. Cell site capacity is a major issue for telecom- munication companies. As the number of people using mobile phones grows, more and more cell sites are required to meet customer demand for reliable coverage. At the end of March 2002, Telecom had more than 1.3 million mobile phone customers and more than 750 mobile phone sites throughout New Zealand. Vodafone had over 1.1 million mobile phone customers.' In areas, such as Auckland (the largest city in New Zealand, with close to a third of the NZ population), where almost complete coverage has been achieved, the main issue is ensuring that there is the capacity to handle the ever-increasing num- ber of mobile phones and calls. Locating Cellular Phone Sites For cellular phone service providers, the main goals when locating cell sites are (1) finding a site that pro- vides the best possible coverage in the area without causing interference with other cells, and (2) findinng a site that causes the least amount of environmental impact on the sturounding area. Service providers usually attempt to locate cell sites on existing struc- tures such as buildings, where antennas can be mounted on the roof to minimize the envirommental impact. If this is not possible, a mast. will need to be erected to support the antennas for the new cell site. 6. S. Fox, "Cell Phone Antenna. Worries Family," East & Bays Courier, November 8, 2002, 1. 7. The information in this section was sourced from Telecom, http://www.telecom.co.nz; New Zealand Ministry for the Environment, http://www.mfe.govt.nz; and New Zealand Ministry of Health, http://www.moh.govt.nz. 8. Vodafone, "Cell Sites and the Environment," http://www.vodafone.co.nz/aboutus/vdfn_about_cellsites.pdf (accessed December 19, 2002) and "Mo- bile Phones and Health," http://www.vodafone.co.nz/aboutus/vdfn_about_health_and_safety.pdf (accessed December 19, 2002); and Telecom, "Mo- bile Phone Sites and Safety," http://www.telecom.co.nz/content/0,3900,27116-1536,00.html (accessed December 19, 2002). the impact of cell phone towers on house prices in residential neighborhoods IM Service providers prefer to locate cell sites in com- mercial or industrial areas due to the "resource con- sent" procedure required by the Resource Management Act 1991° for towers located in residential areas. Despite the high level of demand for better cell phone coverage, the location of cell sites continues to be a contentious issue. The majority of people want better cell phone coverage where they live and work, but they clo not want a site in their neighbor- hood. Thus, cell sites in or near residential areas are of particular concern. Concerns expressed usually relate to health, property values, and visual impact.1' In general, uncertainties in the assessment of health risks from base stations are presented and distributed in reports by organized groups of resi- dents who protest against siting of base stations. When the media publishes these reports it ainpli- fies the negative bias and raises public concerns. Ac- cording to Covello, this leads to incorrect assessment of risks and threats by the public, with a tendency to overestimate risks from base stations and neglect risks from the use of cell phones.`` Assessment of Environmental Effects Under the Resource Management Act 1991 (RIVIA), an assessment of environmental effects is required every time an application for resource consent is made. In- formation that must be provided includes "an assess- ment of any actual or potential effects that the activity fray have on the environment, and the ways in which any adverse effects may be mitigated"' 2Aii assessment. of the environmental effects of cell sites would take into consideration such things as health and safety ef- fects; visual effects; effects on the neighborhood; and interference with radio and television reception. Radio Frequency and Microwave Emissions from CPBSs According to the Ministry for the Environment, the factors that affect exposure to radiation are as follows: • Distance. Increasing the distance from the emit- ting source decreases the radiation's strength and decreases the exposure. • Transmitter power. The stronger the transmit- ter, the higher the exposure. • Directionality of the antenna. increasing the amount. of antennas pointing in a particular di- rection increases the transmitting power and increases the exposure. • Height. of the antenna above the ground. increas- ing the height of an antenna increases the distance from the antenna and decreases the exposure. • Local terrain. Increasing the intervening ridgelines decreases the exposure." The amount. of radiofrequency power absorbed by the body (the dose) is measured in watts per kilogram, known as the specific absorption rate (SAR). The SAR depends on the power density in watts per square meter. The radio frequencies from cellular phone sys- tems travel in a "line of sight." The antennas are de- signed to radiate energy horizontally so that only small amounts of radio frequencies are directed down to the ground. The greatest exposures are in front of the an- tenna so that near the base of these towers, exposure is minimal. Further, power density from the transmit- ter decreases rapidly as it moves away from the an- tenna. However, it. should be noted that by initially walking away from .the base, the exposure rises and then decreases again. The initial increase in exposure corresponds to the point Where the lobe from the an- tenna beam intersects the ground." Health Effects According to Szmigielski and Sobiczewska, the ana- logue phone system (using the 800-900 megahertz band) and digital phone system (Using the 1850-1990 megahertz band) expose humans to electromagnetic field (EMF) emissions: radio frequency radiation (RE) and microwave radiation (MW), respectively. These two radiations are emitted from both cellular phones and CPBSs.'" For years cellular phone companies have as- sured the public that cell phones are safe. They state that the particular set of radiation parameters asso- ciated with cell phones is the same as any other ra- 9. The Resource Management Act1991 is the core of the legislation intended to help achieve sustainability in New Zealand; see http://www.mfe.govt.nz/ laws/rma. 10. Szmigielski and Sobiczewska; and Barnes. 11. Vincent T. Covello, "Risk Perception, Risk Communication, and EMF Exposure: Tools and Techniques for Communicating Risk Information," in Risk Perception, Risk Communication and Its Application to EMF Exposure: Proceedings of the World Health Organization and ICNIRP Conference, ed. R. Matthes, J. H. Bernhardt, M. H. Repucholi, 179-214 (Munich, Germany, May 1998). 12. Section 88(4), (b), Resource Management Act 1991. 13. Ministry for the Environment and Ministry of Health, National Guidelines for Managing the Effects of RadiofrequencyTransmitters, available at http:// www.mfe.govt.nz and http://www.moh.govt.nz (accessed May 21, 2002). 14. Ibid.; and Szmigielski and Sobiczewska. 15. Szmigielski and Sobiczewska. t58 The Appraisal Journal. Summer 1005 dio signal. However, reported scientific evidence challenges this view and shows that cell phone ra- diation causes various effects, such as altered brain activity, memory loss, and fatigue." According to Cheney, there is also strong evidence to conclude that cell sites are risk factors for certain types of cancer, heart disease, neurological symptoms and other effects.17 The main concerns related to EMF emissions from CPBSs are linked to the fact that ra- dio frequency fields penetrate exposed tissues. Public concern regarding both cell phones and CPBSs in many countries has led to establishment of independent expert groups to carry out detailed reviews of the research literature. Research on the health effects of exposures to RE are reviewed by, for instance, the NZ Radiation Laboratory, the World Health Organization, the International Commission on Non-lonizing Radiation Protection (ICNIRP), the Royal Society of Canada, and the UK Independent Expert Group on Mobile Phones. The reviews con- clude that there are no clearly established health ef- fects for low levels of exposure. Such exposures typi- cally occur in publicly accessible areas around ra- dio frequency transmitters: However, there are ques- tions over the delayed effects of exposure. While present medical and epidemiological studies reveal weak association between health ef- fects and low-level exposures of RF/MW fields, con- troversy remains among scientists, producers, and the general public. Negative media attention has fu- elled the perception of uncertainty over the health effects from cell phone systems. Further scientific or technological information is needed to allay fears of the public about cell phone systems. Radio Frequency Radiation Exposure Standards International Standards. The reviews of research on the health effects of exposures to RFhave helped establish exposure standards that limit RF exposures to a safe level. Most standards -including those set by the ICNIRP, the American National Standards In- stitute (ANSI), and New Zealand —are based on the most -adverse potential effects. The 19981CN1RP guidelines have been accepted by the world's scientific and health communities; these guidelines are both consistent with other stated standards and published by a highly respected and independent. scientific organization. The 1CNIRP is responsible for providing guidance and advice on the health hazards of nonionizing radiation for the World Health Organization (WHO) and the Interna- tional Labour Office.'0 The New Zealand Standard. In New Zealand, when a mobile phone site is being planned, radio frequency engineers calculate the level of electromagnetic en- ergy (EME) that will be emitted by the site, The level of EME is predicted by taking into account factors such as power output, cable loss, antenna gain, path loss, and height and distance from the antenna. These calculations allow engineers to determine the maxi- rnunpossible emissions in a worst -case scenario, i.e., as if the site was operated at maximum power all the time. The aim is to ensure that EME levels are below international and NZ standards in areas where the general public has unrestricted access. All mobile phone sites in New Zealand must com- ply in all respects with the NZ standard for radio fre- quency exposures." This standard is the same as used in most European countries, and is more stringent than that used in the United States, Canada, and Japan. Some local communities in New Zealand have even lower exposure -level standards; however, in reality mobile phone sites only operate at a fraction of the level set by the NZ standard. The National Radiation Laboratory has measured exposures around many operating cell sites, and maximum exposures in publicly accessible areas around the great majority of sites are less than 1% of the exposure limit of the NZ standard. Expo- sures are rarely more than a few percent of the limit, and none have been above 10%. Court Decisions Two court cases in New Zealand have alleged adverse effects due to CPBSs: McIntyre v. Christchurch City 16. K. Mann and J. Roschke, "Effects of Pulsed High -Frequency Electromagnetic Fields on Human Sleep," Neuropsychobiology 33, no. 1 (1996): 41-47; Krause et al.; Alexander Borbely et al., "Pulsed High -Frequency Electromagnetic Field Affects Human Sleep and Sleep Electroencephalogram," Neurosci Let, 275, no. 3 (1999): 207-210; L. Kellenyi et al., "Effects of Mobile GSM Radiotelephone Exposure on the Auditory Brainstem Response (ABR)," Neurobiology 7, no. 1 (1999): 79-81; B. Hocking, "Preliminary Report: Symptoms Associated with Mobile Phone Use," Occup Med 48, no. 6 (Sept. 1998): 357-360; and others as reported in Neil Cherry, Health Effects Associated with Mobil Base Stations in Communities: The Need for Health Studies, Environmental Management and Design Division, Lincoln University (June 8, 2000); http://pages.britishlibrary.net/orange/cherryonbasestations.htm. 17. Cherry. 18. Ministry for the Environment and Ministry of Health. 19. NZS 2772.1:1999, "Radiofrequency Fields Part I: Maximum Exposure Levels - 3kHz to 3000Hz." This standard was based largely on the 1998 ICNIRP recommendations for maximum human exposure levels to radio frequency. The standard also includes a requirement for minimizing radio frequency exposure. See National Radiation Laboratory, Cell Sites (March 2001), 7; available at http://www.nrl.moh.govt.nz/CellsiteBooklet.pdf. the impact of (ell phone towers on house prices in residential neighborhoods l59 Council10 and Shirk), Primal), School v. "1'eleconr.Mo- bile Communications Ltd."' Very few cell site cases have actually proceeded to Environment Court hear- ings. In these two cases the plaintiffs claimed that there was a risk of adverse health effects from radio frequency racliation emitted from cell phone base sta- tions and that the CPBSs had adverse visual effects. in Ivielnlyr e, Bell South applied for resource con- sent to erect a CPBS. The activity was a noncomply- ing activity under the Transitional District Plan. Resi- dents objected to the application. Their objections were related to the harmful health effects from ra- dio frequency radiation. In particular, they argued it would be an error of law to decide, based on the present state of scientific knowledge, that there are no harmful health effects from low-level radio fre- quency exposure. It was also argued that. the Re- source Management Act contains a precautionary policy and also requires a consent authority to con- sider potential effects of low probability but high impact in reviewing an application. The Planning Tribunal considered residents' objections and heard experts' opinions as to the po- tential health effects, and granted the consent, sub- ject to conditions. It was found that there would be no adverse health effects from low levels of radia- tion from the proposed transmitter, not even effects of low probability but high potential impact. In Shirley Przrncny School, Telecom applied to the Christchurch City Council for resource consent to establish, operate, and maintain a CPBS on land adjacent to the Shirley Primary School. This activity was a noncomplying activity under the Transitional District Plan. Again, the city council granted the con- sent subject to conditions. However, the school ap- pealed the decision, alleging the following four ad- verse effects: Z60 • Risk of adverse health effects from the radio fre- quency radiation emitted from the cell site • Adverse psychological effects on pupils and teachers because of the perceived health risks • Adverse visual effects • Reduced financial viability of the school if pu- pils withdraw because of the perceived adverse health effects The court concluded that the risk of the children or teachers at the school developing leukemia or other cancers from radio frequency radiation emitted by 20. NZRMA 289 (1996). 21. NZRMA 66 (1999). 22. NZRMA 97 (1996). The Appraisal Journal, Summer 1005 the cell site is extremely low, and the risk to the pu- pils of developing sleep disorders or learning disabili- ties because of exposure to radio frequency radiation is higher, but still very small. Accordingly, the Telecom proposal was allowed to proceed. In su nmary, the Environmental Court ruled that there are no established adverse health effects from the emission of radio waves from CPB Ss and no epi- demiological evidence to show this. The court was persuaded by the 1CNIRP guidelines that risk of health effects from low-level exposure is very low and that the cell phone frequency imposed by the NZ standard is safe, being almost two and one-half times lower than that of the ICNIRP. The court did concede that while there are no proven health effects, there was evidence of prop- erty values being affected by both of the health alle- gations. The court suggested that such a reduction in property values should not be counted as a sepa- rate adverse effect from, for example, adverse visual or amenities effects. That is, a reduction in property values is not an environmental effect in itself; it is merely evidence, in monetary terms, of the other adverse effects noted. In a third ease, Goldfinch v. Auckland City Coun- ci.l,22 the Planning Tribunal considered evidence on potential losses in value of the properties of objec- tors to a proposal for the siting of a CPBS. The court concluded that the valuer's monetary assessments support and reflect the adverse effects of the CPBS. Further, it concluded that the effects are more than just minor as the CPBS stood upon the immediately neighboring property. Literature Review While experimental and epidemiological studies have focused on the adverse health effects of radia- tion from the use of cell phones and CPB Ss, few stud- ies have been conducted to ascertain the impact of CPBSs on property values. Further, little evidence of property value effects has been provided by the courts. Thus, the extent to which opposition from property owners affected by the siting of CPBSs is reflected in lower property values is not well known in New Zealand. Two studies have been conducted to ascertain the adverse health and visual effects of CPBSs on prop- erty values. Telecom commissioned Knight Frank (NZ) Ltd to undertake a study in Auckland in 1998/ 99 and commissioned Telfer Young (Canterbury) Ltd to.undertake a similar study in Christchurch in 2001. Although the studies show that there is not a statisti- cally significant effect on property prices where CPBSs are present,25 the research in both cases in- volves only limited sales data analysis. Further, no surveys of residents' perceptions were undertaken, and the studies did not examine media attention to the sites and the impact. this may have on saleability of properties in close proximity to CPB Ss. Finally, as the sponsoring party to the research was a telecom- mtmication company it is questionable whether the results are completely free from bias. Hence, the present study aims to help fill the research void on this contentious topic in an objective way. CPBSs are very similar structures to high -voltage overhead transmission lines (HVOTLs); therefore it is woithwinle to review the body ofliterature on the prop- erty values effects of HVOTLs. The only recently pub- lished study in New Zealand on H\TOTLs effects is by Bond and Hopkins.''' Their research consists of both a regression analysis of residential property transaction data and an opinion survey to determine the attitudes and reactions of property owners in the study area to- ward living close to HVOTLs and pylons. The results of the sales analysis indicate that having a pylon close to a particular property is sta- tistically significant and has a negative effect. of 20% at 10-15 meters from the pylon, decreasing to 5% at 50 meters. This effect diminishes to a negligible amount after 100 meters. However, the presence of a transmission line in the case study area has a mini- mal effect and is not a statistically significant factor in the sale prices. The attitudinal study results indicate that nearly two-thirds of the respondents have negative feelings about the HVOTLs. Proximity to HVOTLs determines the degree of negativity: respondents living closer to the HVOTLs expressed more negative feelings to- wards them than those living farther away. It ap- pears, however, from a comparison of the results, that the negative feelings expressed are often not reflected in the prices paid for such properties. There have been a number of HVOTLs studies carried out in the United States and Canada. A major review and analysis of the literature by Kroll and Priestley indicates that in about half the studies, 1-1VOTLs have not affected property values and in the rest of the studies there is a loss in property value between 2°fo-10%.'' Kroll and Priestley are generally critical of most valuer -type studies because of the small number of properties included and the failure to use econometric techniques such as multiple re- gression analysis. They identify the Colwell study as one of the more careful and systematic analyses of residential impacts 2f That study, carried out in Illi- nois, finds that the strongest effect of HVOTLs is within the first 15 meters, but the effect dissipates quickly with distance, disappearing beyond 60 meters. A Canadian study by Des Rosiers, using a sample of 507 single-family house sales, finds that severe visual encumbrance due to a direct view of either a pylon or lines exerts a significant, negative impact on property values; however location adjacent to a transmission corridor may increase value?' This was particularly evident where the transmission corri- dor was on a well -wooded, 90 -meter right-of-way. The proximity advantages include enlarged visual field and increased privacy. The decrease in value from the visual impact of the HVOTLs and pylons (on average between 5% and 10% of mean house value) tends to be cancelled out by the increase in value from proximity to the easement. A study by Wolverton and Bottemiller28 uses a paired -sale analysis of hone sales in 1989-1992 to ascertain any difference in sale price between prop- erties abutting rights -of -way of transmission lines (subjects) in Portland, Oregon; Vancouver, Washing- ton; and Seattle, Washington; and those located in the same cities but not abutting transmission line rights -of -way (comparisons). Subjects sold during the study period were selected first; then a match- ing comparison was selected that was as similar to the subject as possible. The study results did not support a finding of a price effect from abutting an HVTL right-of-way. In their conclusion, the authors 23. Mark Dunbar, Telfer Young research valuer, personal communication with Bond, 2002. The results of these studies have not been made publicly known. The study by Knight Frank of Auckland was conducted by Robert Albrecht. 24. S. G. Bond and J. Hopkins, "The Impact of Transmission Lines on Residential Property Values: Results of a Case Study in a Suburb of Wellington, New Zealand," Pacific Rim Property Research Journal 6, no. 2 (2000): 52-60. 25. C. Kroll and T. Priestley, "The Effects of Overhead Transmission Lines on Property Values: A Review and Analysis of the Literature," Edison Electric Institute (July 1992). 26. Peter F. Colwell, "Power Lines and Land Value," Journal of Real Estate Research 5, no. 1 (Spring 1990): 117-127. 27. Francois Des Rosiers, "Power Lines, Visual Encumbrance and House Values: A Microspatial Approach to Impact Measurement," Journal of Real Estate Research 23, no. 3 (2002): 275-301. 28. Marvin L. Wolverton and Steven C. Bottemiller, "Further Analysis of Transmission Line Impact on Residential Property Values," The Appraisal Journal (July 2003): 244-252. the impact of cell phone towers on house prices in residential neighborhoods 161 warn that the results cannot and should not he gen- eralized outside of the data. They explain that limits 011 genoralizati0ns are a universal problem for real property sale clala because analysis is constrained to properties Mat sell and sold properties are never a randomly dravvn representative sample. Hence, gener- alizations mils]. rely on the vveighl of evidence from nurne1°onsstudies, samples, and loci)tions.'' Thus, despite the varying results reported in the literature on property value effects from HVOTLs, each study adds to the growing body of evidence and knowledge on this (and similar) valuation issue(s). The study reported here is one such study. Opinion Survey Research Objectives and Methodology Research by Abelson;i° Chalmers and Roehr;" Kinnard, Geckler and Dickey;" Bond;" and Flynn et al.,'" recommend the use of market sales analysis in tandem. with opinion survey studies to measure the impact of environmental hazards on residential property values. The use of more than one approach provides the opportunity to compare the results from each and to derive a more informed conclusion than obtained from relying solely on one approach. Thus, the methods selected for this study include a public opinion survey and a bedonic house price approach (as proposed by Freeman" and Rosen56). A compari- son of the results from both of these techniques will reveal the extent. to which the market reacts to cell phone towers. Public Opinion Survey Au opinion survey was conducted to investigate the current perceptions of residents towards living near CPBSs and how this proximity might affect prop- erty values. Case study areas in the city of Christchurch were selected for this study. The study included residents in ten suburbs: five case study areas (within 300 meters of a cell phone tower) and five control areas (over 1 kilometer from the cell phone tower). The five case study suburbs were matched with five control suburbs that had similar living environments (in socioeconomic terms) ex- cept for the presence of a CPBS. The number of respondents to be surveyed (800) and the nature of the data to be gathered (percep- tions/personal feelings towards CPBSs) governed the choice of a self-administered questionnaire as the most appropriate collection technique. Question- naires were mailed to residents living in the case study and control areas. A self-administered survey helps to avoid inter- viewer bias and to increase the chances of an limi- est. reply where the respondent is not influenced by the presence of an interviewen: Also, mail surveys provide the time for respondents to reflect on the questions and answer these at their leisure, without feeling pressured by the time constraints of an in- terview. In this way, there is a better chance of a thoughtful and accurate reply. The greatest limitation of mail surveys is that a low response rate is typical. Various techniques were used to help overcome this limitation, including care- ful questionnaire design; inclusion of a free -post re- turn envelope; an accompanying letter ensuring anonymity; and reminder letters. An overall re- sponse rate of 46% was achieved for this study. The questionnaire contained 43 individual re- sponse items. The first question acted as an identifier to determine whether the respondent was a home- owner or tenant. VVlnile responses from both groups were of interest, the former was of greater impor- tance, as they are the group of purchasers/sellers that primarily influence the value of property. How- ever, it was considered relevant to survey both groups as both are affected by proximity to a CPBS to much the same extent from an occupiers' perspec- tive, i.e., they both may perceive risks associated with a CPBS. It was hypothesized that tenants, being less - permanent residents, would perceive the effects in a similar way, but to a much lesser degree. Other survey questions related to overall neigh- borhood environmental desirability; the tinning of 29. Ibid., 252. 30. P W. Abelson, "Property Prices and Amenity Values," Journal of Environmental Economics and Management 6 (1979): 11-28. 31. James A. Chalmers and Scott Roehr, "Issues in the Valuation of Contaminated Property," TheAppraisallournal (January 1993): 28-41. 32.W. N., Kinnard, M. B. Geckler, and S. A. Dickey, "Fear (as a Measure of Damages) Strikes Out: Two Case Studies. Comparisons of Actual Market Behaviour with Opinion Survey Research" (paper presented at the Tenth Annual American Real Estate Society Conference, Santa Barbara, California,.. April 1994). 33, S. G. Bond, "Do Market Perceptions Affect Market Prices? A Case of a Remediated Contaminated Site," in Real Estate Valuation Theory, ed. K. Wang and M. L. Wolverton, 285-321 (Boston: Kluwer Academic Publishers, 2002). 34. James Flynn et al., "Survey Approach for Demonstrating Stigma Effects in Property Value Litigation," The Appraisal Journal (Winter 2004): 35-45. 35. A. Myrick Freeman, The Benefits of Environmental Improvement: Theory and Practice (Baltimore: John Hopkins Press, 1979). 36. Sherwin Rosen, "Hedonic Prices and Implicit Markets: Product Differentiation in Pure Competition," Journal of Political Economy 82, no. 1 (Jan/Feb 1974): 34-55. Z6L The Appraisal Journal. Summer /005 the CPBS's construction and its proximity in rela- tion to the respondent's home; the importance placed on the CPBS as a factor in relocation decisions and on the price/rent the respondent was prepared to pay for the house; how a CPBS might. affect. the price the respondent would be willing to pay for the prop- erty; and the degree of concern regarding the effects of CPBSs on health, stigma, aesthetics, and property values. The surveys were coded to identify the prop- erty address of the respondent. This enabled each respondent's property to be located on a map and to show this in relation to the cell site, Eighty questionnaires" were distributed to each of the ten suburbs (five case study and five control areas) in Christchurch. Respondents were instructed to complete the survey and return it in the free -post, self-addressed envelope provided. The initial re- sponse rate was 31%. A month later, a further 575 questionnaires with reminder letters were sent out to residents who had not yet responded. A total re- sponse rate of 46% was achieved. Response rates from each suburb ranged from 33% (Linwood) to 61% (Bishopdale). The questionnaire responses were coded and entered into a computerized database." The analysis of responses included the calculation of means and percentage of responses to each question to allow for an overview of the response patterns in each area. Case Study and Control Areas The suburbs of Beckenham, Papanui, Upper Riccarton, Bishopdale, and St Albans were selected for the case study because there is at least one CPBS within each of these communities. Census data, pro- viding demographic and socioeconomic character- istics of geographic areas, was used to select the con- trol suburbs of Spreydon, Linwood, Bromley, Avonhead, and llam.31 The control areas are located further away (over 1 kilometer) from the CPBS in their matched case study area. As well as matching demographic: and socioeconomic characteristics, each suburb was selected based on its similarity to its matched case study area in terms of living envi- rontnent and housing stock, distance to the central business district, and geographic size; the only dis- similarity is that there are no CPBSs in the control areas. (See Appendix I for a location map.) Demographic statistics show that Bromley and Ilam comprise a younger population (median age about 33), with Bishopdale and Upper Riccarton having an older population (median age about 40). The ethnic breakdown of each suburb indicates that Papanui and Spreydon have the highest proportion of Europeans (about 90%), Bromley has the highest proportion of both Maoris and Pacific Islanders (13.9% and 8.5% respectively), while Ilam, Avonhead, and Upper Riccarton have the highest proportion of Asians (16.1% to 18.5%).41 Median household and median family incomes (MHI and MFI) are highest in llam and Avonhead (MHI: $34,751NZ, $53,405NZ; MFI: $51,530NZ, $65,804NZ, respectively) and lowest in Linwood and Beckenham (MHI: $22,275NZ, $26,398NZ; MFI: $29,673NZ, $33,847NZ respeetively).11 Residents of St Albans West have the highest levels of education (21.7% have a degree or a higher degree) followed by Upper Riccarton (18.7%), Ham (16.7%), and Avonhead (16.2%). These same suburbs have the highest proportion of professionals by occupational class (20.3% to 273%). Residents of Bromley have the lowest. education (40% have no qualification) and the lowest proportion of professionals (5.5%).'11 In summary, the socioeconomic data shows that Ilatn is the more superior suburb, followed by Avonhead, Upper Riccarton, St Albans West, and Papanui. The lower socioeconomic areas are, in de- creasing order, Spreydon, Bishopdale, Bromley, Beckenham, and Linwood. Survey Results A summary of the main findings from the survey is presented in Appendix II, and the survey results are discussed in the following. Response Rates Of the 800 questionnaires mailed to homeowners and tenants in the case study and control areas (400 to each group), 50% from the case study area and 41% 37. Approved by the University of Auckland Human Subjects Ethics Committee (reference 2002/185). 38. The computer program SPSS was selected as the appropriate analytical tool for processing the data. 39. The census is conducted in New Zealand every five years, and the data used to define the control areas is from the latest census conducted in 2001, see Christchurch City Area Unit Profile, 2001 at http://www.ccc.govt.nz/Census/ChristchurchCityAreaUnitProflle.xls. 40. Christchurch City Area Unit Profile statistics. 41. $1NZ — $0.65US, thus, $34,751NZ = $22,588US. 42. The median house price for Christchurch city in August 2003 was $185,000NZ/$120,000US (New Zealand national median house price at this time was $215,000NZ/$140,000US), http://www.reinz.co.nz/files/HousingFacts-Sample-Pg1-5.pdf (accessed March 17, 2004). Median house prices in each individual suburb could not be obtained as the median sales data from the Real Estate Institute of NZ (REINZ) contains more than one suburb in each location grouping. the impact of cell phone towers on house prices in residential neighborhoods /63 from the control area were completed and returned. Over three-quarters (78.5%) of the case study respon- dents were homeowners compared to 94% in the control area. Desirability of the Suburb as a Place to Live v1ore than half (58.3%) the case study respondents have lived in their suburb for more than five years (compared to 65% in the control group) and a quar- ter (25%) have lived in their suburb between 1 and 4 years (compared to 28% in the control group). Around two-thirds (65% of the case study re- spondents and 68% of the control group respondents) rated their neighborhoods as either above average or superior as a place to live when compared with other similar named suburbs. The reasons given for this include close proximity to amenities (shops, baary, medical facilities, public transport, and rec- reational facilities) and good schools. Reasons given for rating the case study neighbor- hoods inferior to other similar neighborhoods include lower house prices, older homes; more student hous- ing aucl lower -income residents. Thereasons given by the control group respondents for an inferior rating include distance from the central business district (Avonhead); smell from the sewerage oxidation ponds and composting ponds (Bromley); ancl lower socioeco- nomic area and noise from the airport (Linwood). Z64 Feelings About a CPBS as an Element of the Neighborhood In. the case study areas, a CPBS had already been con- structed when only 390/ of the respondents bought their houses or began renting in the neighborhood. Some responded that they were not notified that the CPBS was to be built, that they had no opportunity to object to it, and that they felt they should have been consulted about its construction. For the respondents who said that proximity to the tower was of concern to them, the most common reasons given for this were the impact of the CPBS on health, aesthetics, and prop- erty values. Nearly three-quarters (74%) of the respon- dents said they would have gone ahead with the pur- chase or rental of their property anyway if they had known that the CPBS was to be constructed. In the control areas nearly three-quarters (72%) of the respondents indicated they would be opposed to construction of a CPBS nearby. The location of a CPBS would be taken into account by 83% of respon- dents if they were to consider moving, As with the case study respondents, the control group respon- dents who were concerned about proximity to a The Appraisal Journal Summet2005 CPBS were most often concerned about the effects of CPBSs on health, aesthetics, and property values. Impact on Decision to Purchase or Rent In the case study areas, the tower was visible from the houses of 46% of the respondents, yet two-thirds (66%) of these said it was barely noticeable, and one -quarter said it inilclly obstructed their view. ylrhen asked in what way the CPBS impacts the enjoyment of living in their home, 37%responded that its impact was related to health concerns, 21% said it impacted neighborhood aesthetics, 20% said it impacted property value, and 12% said it impacted the view from their property. When asked about the impact that the CPBS had on the price/rent they were prepared to pay for their property, over half the case study respondents (53.1%) said that the tower was not constructed at the time of purchase/rental, and 51.4% of the respon- dents said the proximity to the CPBS did not affect the price they were prepared to pay for the property. Nearly 3% said they were prepared to pay a little IeSS, 2% said they were prepared to pay a little more. For the control group respondents, 4.5010 of the respon- dents would pay substantially less for a property if a CPBS were located nearby, over one-third (38%) were prepared to pay just a little less for such a prop- erty; and 17% responded that a CPBS would not in- fluence the price they would pay. Only 10% of the case study respondents gave an indication of the impact that the CPBS had on the price/rent. they were prepared to pay for the prop- erty; one-third of these felt it would decrease price/ rent by 1% to 9%. For the control group, over one- third (38%) of the respondents felt that a CPBS would decrease price/rent by more than 20%, and a simi- lar number (36%) said they would be prepared to pay 100/o to 19% less for property located near a CPBS. The responses are outlined in Table 1. Table 1 Impact of a CPBS on Purchase/Rental Price Decision Price/Rent Effect 20% more 10-19% more 1-9% more 1-9% less 10-19% less 20% or greater reduction in Percent of Case Study Respondents (Control Group Responses) 5% (3%) 10% (2%) 14% (2%) 33% (19%) 24% (36%) price/rent 14% (38%) Interestingly, it would seem that those living far- ther away from the CPBSs (the control group) are far more concerned about proximity to CPBSs than those living near CPBSs (the case study group); they indicated that a CPBS would have a greater price/ rent effect. The possible explanations for this are discussed in the survey results section. Concerns About Proximity to the CPBS Most case study respondents were not worried about the effects of proximity to a CPBS related to health (50%), stigma (55%), future property value (61%), or aesthetics (63%). About one -quarter to one-third of these respondents were somewhat worried about the impact of proximity to a CPBS on health (38%), stigma (34%), future property value (25%), or aesthetics (25%). Froin the list of issues, respondents were most worried about future property value, but only 13.5% of the respondents responded this way. Here again, control group respondents were much more concerned about the effects of proximity to a CPBS than their case study counterparts. Of the possible concerns about CPBSs on which respondents were asked to comment, control group respondents were most worried about the negative effects on fu- ture property values and aesthetics. Nearly half the respondents were worried a lot about these issues. Similar responses were recorded for the possibility of harmful health effects in the future from CPBSs (42% were worried a lot about this) and stigma asso- ciated with houses near CPBSs (34% were worried a lot). The responses regarding concerns about living near a CPBS are shown in Table 2, In both the case study and control areas, the is- sue of greatest concern for respondents was the im- pact of proximity to CPBSs on future property val- ues. The main concerns related to CPBSs were the unknown potential health effects, the possible so- cioeconomic implications of the siting of CPB Ss, and how CPB Ss affect property values. There also were concerns that the city council was not notifying the public about the possible construction of CPBSs. Table 2 Concerns about Living Near a CPBS* Discussion of the Survey Results The results were mixed, with responses from resi- dents ranging from having 110 concerns to being very concerned about proximity to a CPBS. In general, those people living in areas farther from CPBSs were much more concerned about issues related to prox- imityto CPB Ss than residents who lived near CPBSs. Over 40%ofthe control group respondents were worried a lot about future health risks, aesthetics, and future property values compared with the case study areas, where only 13% of the respondents were worried a lot about these issues. I-Iowever, in both the case study and control areas, the impact of prox- imity to CPBSs on future property values is the is- sue of greatest concern for respondents. If purchas- ing or renting a property near a CPBS, over a third (38%) of the control group respondents said a CPBS would reduce the price of their property by more than 20%. The perceptions of the case study respon- dents were again less negative, with a third saying they would reduce the price by only 1%-9%, and 24% saying they would reduce the price by 10%-190% The lack of concern shown by the case study respondents may be clue to the CPBSs being either not visible or only barely visible from their homes. The CPBSs may be far enough away from respon- dents' properties (as was indicated by many respon- dents, particularly in St Albans \'Vest, tipper Riccarton, and Bishopclale) or hidden by trees and consequently not perceived as affecting the proper- ties. The results may have been quite different had the CPBS being more visually prominent. Alternatively, the apparent. lower sensitivity to CPB Ss of case study residents compared to the con- trol group residents may be due t.o cognitive disso- nance reduction. In this case, respondents may be unwilling to admit, due to the large amounts of money already paid, thattheymay have made a poor purchase or rental decision in buying or renting property located near a CPBS. Similarly, the homeowners may be unwilling to admit there are concerns about CPBSs when the CPBSs were built Concern Possibility of harmful health effects Stigma effect Effect on future property values Aesthetics Does not worry me 50% (20%) 55% (21%) 61% (15%) 63% (18%) Worries me somewhat 38% (38%) 34% (45%) 25% (37%) 25% (37%) Worries me a lot 12% (42%) 12% (34%) 13% (47%) 11% (45%) Percent of case study respondents having that concern (control group respondents). All numbers are rounded the impact of cell phone towers on hawse prices in residential neighborhoods i after they had purchased their homes, because to do so might have a negative impact on property values, Regardless of the reasons for the difference in re- sponses from the case study and control groups, the overall results show that residents perceive CPBSs negatively. In both the case study and control areas, the impact of proximity to CPBSs on future property values was the issue of greatest concern for respon- dents. Overall, respondents felt that proximity to a CPBS would reduce value by from 10% to over 20%. The sec- ond part of the study outlined below, involving an econometric analysis of Christchurch property sales transaction data, helps to confirm these results. Respondents' comments added at the encl of the survey indicate that residents have ongoing concerns about CPB Ss. Although some people accepted the need for CPBSs, they said that they did not want them built in their back yard, or they preferred that. they be disguised to blend better with their environment. Market Study Research Objectives and Methodology A marketstudy was undertaken to test the hypoth- esis that in suburbs where there is a CPBS it will be possible to observe discounts to the selling price of homes located near these structures. Such discounts would be observed where buyers of proximate homes view the CPBSs in negative terms due to a perceived risk of adverse effects on health, aesthet- ics, and property value. The literature dealing specifically with the mea- surement of the impact of environmental hazards on residential sale prices (including proximity to transmission lines, landfill sites, and ground water contamination) indicates the popularity of hedonic pricing rnodels, as introduced by Court" and later Griliches,4'i and further developed by Freeman" and Rosen." The more recent studies, including those by Dotzour;'17 Simons and Sementelli;'18 and Reichert," focus on proximity to an enviromnental hazard and demonstrate that this reduces residen- tial house prices by varying amounts depending on the distance from the hazard.i0 However, there are no known published studies that use hedonic hous- ing models to measure the impact of proximity to a CPBS on residential property values. As in the previous residential house price stud- ies, the standard 'tectonic methodology was used here to quantify the impact of a CPBS on sale prices of homes located near a CPBS. The results from this study in tandem with the opinion survey results will help test the hypothesis that. proximity to a CPBS has a negative impact, on property value and will reveal the extent to which the market reacts to CPBSs. Model Specification A hedonic price model i5 constructed by treating the price Of a property as a function of its utility -bearing attributes. Independentt variables used in the model to account. for the property attributes are limited to those available ill the data set and known, based on other well -tested models reported in the literature and from valuation theory, to be related to property price. The basic model used to analyze the impact on sale price of a house located near a CPBS, is as follows: where: P1=.f(X11, X2, .. . . . . .. . .. . .. . P,= property price at the i th location individual characteristics of each sold property (e.g., land area, age of house, floor area, sale date, construction materials, house condition, CPBS construction date, etc.) The more recent hedonic pricing studies that demonstrate the effects of proximity to an envfron- mentalhazard use different functional forms to rep- resent the relationship between price and various property characteristics.`'' In liedonic housing mod- els the linear and log -linear models are most. popu- lar. The linear model implies constant partial effects between house prices and housing characteristics, while the log -linear model allows for nonlinear price effects and is shown in the following equation: 43. A. T. Court, "Hedonic Price Indexes with Automotive Examples," in The Dynamics of Automobile Demand (New York: General Motors, 1939). 44. Zvi Griliches, ed. Price Indexes and Quality Change (Cambridge, Mass.: Harvard University Press, 1971). 45. Freeman. 46. Rosen. 47, Mark Dotzour, "Groundwater Contamination and Residential Property Values," The Appraisal Journal (July 1997): 279-285. 48. Robert A. Simons and Arthur Sementelli, "Liquidity Loss and Delayed Transactions with Leaking Underground Storage Tanks," The Appraisal Journal (July 1997): 255-260. 49. Alan K. Reichert, "Impact of a Toxic Waste Superfund Site on Property Values," The Appraisal Journal (October 1997): 381-392. 50, Only Dotzour found no significant impact of the discovery of contaminated groundwater on residential house prices. This was likely due to the nonhaz- ardous nature of the contamination where the groundwater was not used for drinking purposes. 51. See for example L. Dale et al., "Do Property Values. Rebound from Environmental Stigmas? Evidence from Dallas," Land Economics 75, no. 2 (May 1999): 311-326; Dotzour; Simons and Sementelli; and Reichert. 266 The AppraitaUourtal. Summer 2005 1nP,=b„+b,x ,,+b,x I,i+bjxX, + b,,x X,* I+ a„x D„+ ...+ a,,, x D„,+ e„ where: 1nP1= the natural logarithm of sale price bn = the intercept. b, ... b a„ .. . a. = the model parameters to be estimated, i.e., the implicit unit prices for increments in the property characteristics X, = the continuous characteristics, such as land area D„ ... D,, = the categorical (dummy) variables, such as whether the sale occurred before (0) or after (1) the CPBS was built Sometimes the natural logarithm of land area and floor area is also used. The parameters are esti- mated by regressing property sales on the property characteristics and are interpreted as the house- holds' implicit. valuations of different property at- tributes. The null hypothesis states that the effect of being located near a CPBS does not explain airy variation in property sale prices, The Data Part of the process for selecting appropriate case study areas was identifying areas where there had been a sufficient number of property sales to pro- vide statistically reliable and valid results. Sales were required for the period before and after the CPBS had been built in order to study the impact of the CPBS on the surrounding properties' sale prices. Further, due to the multitude of factors that conn- bine to determine a neighborhood's character, such as proximity to the central business district., stan- dard of schooling, recreational facilities provided, standard of housing proximity to amenities, and the difficulty in allowing for these separately, sales lo- cated in areas with comparable neighborhood char- acteristics were preferred. Four of the suburbs in the survey case study met the criteria for the market. study: St Albans, Beckenham, Papanui, and Bishopdale. No sales data was available for Upper Riccarton after the CPBS was built in this submit), hence this suburb was not included in the market analysis study. As each CPBS was built at a different. elate, the sales from each suburb were sepa- rately analyzed. The uniformity of locational and neigh- borhood characteristics in each of these suburbs al- lows the analysis to be simplified and to focus on the properties' physical attributes. The relative homoge- neity of housing, locational; and neighborhood at- tributes vas verified through field inspections. The dependent variable is the property sale price. The data set includes 4283 property sales that occurred between 1986 and 2002 (approximately 1000 sales per suburb)."The independent data set was limited to those vari- ables that. correspond to property attributes known and suspected to influence price. These variables are floor area (u7-'); land area (ha); age of the house (the year the house was built); tower (a dummy variable indi- cating whether the sale occurred before or after the CPBS was built); sale date (month and year); time of sale based on the number of quarters before or after the CPBS was built (to help control for movements in house prices over time); category of residential prop- erty (stand-alone dwelling, dwelling converted into flats, ownership unit, etc); quality of the principal struc- ture (as assessed by an appraiser); and roof and wall materials. The number of bedrooms was not available in the data set, but would not have been included as an independent variable since the number of bedrooms is highly correlated with floor area. Since the GIS coordinates of properties for the initial analysis were not available, street. name was included as an independent variable instead. To a limited extent, street name helped to control for the proximity effects of a CPBS. It was suspected that houses on a street close to a CPBS may, on average, sell for less than houses on a street farther away from the CPBS. While views, particularly water views, have been shown in previous empirical studies to be an impor- tant. attribute affecting sale price, in the present study the flat contour of the landscape where the homes are located, together with the suburban nature of the en- virounent surrounding these, precluded any signifi- cant views. Thus, views were not included in the analy- sis. Further, due to the large munber of sales included in the analysis, inspections of each individual prop- erty were not. made to determine the view, if ally, of a CPBS from each house. It was felt that it. is not merely the view that may impact on price, but also proximity to a CPBS due to the potential effect this may have on health, cell phone coverage, and neighborhood aes- 52. These sales were obtained from Headway Systems Ltd, a data distribution and system development company, Headway is the major supplier of property market sales information to New Zealand's valuation profession; it is jointly owned by the NZ Institute of Valuers (NZIV) and PT Investments, a consortium of 28 shareholders from within the property industry. the impact of cell phone towers on house prices in residential neighborhoods 161 thetics. Hence, view of a CPBS was notincluded as an independent variable. The variable descriptions are listed in Table 5. Variable codes are shown in Appen- dix 111 and basic descriptive statistics for selected quan- titative variables are shown in Appendix 1V Table 3 Variable Descriptions Variable* SLNETX SITSTX CATGYX2 CATGYX4 TIMESOLD. Q AGE LANDAX MATFAX WALLCNX ROOFCNX TOWER Definition Sale price of the house (NZ$) Street name Category of dwelling: D, E, etc. Quality of the structure: A, B, Ct Using the time the cell phone tower was built as a baseline quarter, the number of quarters before (—) and after (+) it was built Year the house was built Land area (ha) Total floor area (m2) Wall construction: W, B, C, etc. f Roof construction: W, B, C, etc. An indicator variable: 0 if before the cell phone tower was built, or 1 after it was built Sale price is the dependent variable. 1 See Appendix 111 for explanation of variable. codes. Market Study Results An econometric. analysis of Christchurch property transaction data helped to confirm the opinion sur- vey results. In the analysis of selected suburbs, the sales data from sales that occurred before a CPBS was built was compared to sales data from after a CPBS was builtto determine any variance in price, after accounting for all the relevant independent variables. Empirical Results The model of choice is one that best represents the relationships between the variables and has a small variance and unbiased parameters. Various models were tested and the results are described in the next section. The following statistics were used to help select the most appropriate model: the adjusted co- efficient of determination (adjusted R2); the standard error of the regression equation; the A1C' and B1C3' statistics; and t. -test of significance of the coefficients and F -statistic. Significance of Variables and the Equation: St Albans As hedonic prices can vary significantly across dif- ferent functional forms, various commonly used functional forms were examined to determine the model specification that best describes the relation- ship between price and the independent variables. Also, to test the belief that the relationship between Price and Land Area is not a linear function of Price, the variable LANDAX (land area) was transformed to reflect the correct relationship. Several transfor- mations were tested including: linear of SLNETX (sale price) and log of LAND X; log of SLAVEIX and linear of LAND_l Z; and log of SLNETX and log of L_ IND.4 �. All dummy variables remained in their linear form in each model. lt. was found that the best result was obtained from using the log of SLNETY and log of LANDAX, and the linear form of all the dummy variables. Taking the log of an independent variable implies diminish- ing marginal benefits. For example, an extra 50 square meters of land area on a 550 -square -meter site would be worth less than the previous 50 square meters. The log -log model shows the percent change in price for a one -percent change in the independent variable, while all other independent variables are held con- stant (as explained in Hill, Griffiths, anal Judge)." In the semilogarithmic equation the interpreta- tion of the dummy variable coefficients involves the use of the formula: 100(e"., — 1), where b,, is the dummy variable coefficient,'° This formula derives the percentage effect on price of the presence of the factor represented by the dummy variable and is advocated over the alternative, and commonly mis- used, formula of 100. (b„). The resulting model in- cluded all the available variables as follows: log(SLNET I) = a + (31 x TOYTIE1I +132 x SITSTX + P x CATGYX2 + p, x CATGYX4 + Ra x TIMESOLD x Q + F'6 X AGE + (3f x log(LANDAX) + Rg x LVIATFAX + Rp x ➢T ILLCNX + [3,0 x ROOFCNX 53. AIC is the Akaike Information Criterion, and is a "goodness offit" measure involving thestandard error of the regression adjusted by a penalty factor. The model selected is the one that minimizes this criterion (Microsoft SPSSPC Online Guide, 1997). 54. The BIC is the. Bayesian Information Criterion. Like the AIC, BIC takes into account both how well themodel fits the observed data, and the number of parameters used in the model. The model selected is the one that adequately describes the series and has the minimum SBC. The SBC is based on Bayesian (maximum -likelihood) considerations. (Microsoft SPSSPC Online Guide, 1997). 55.R. Carter Hill, William E. Griffiths, and George G. Judge, Undergraduate Econometrics (New York: John Wiley & Sons, 1997). 56. See Robert Halvorsen and Raymond Palmquist, "The Interpretation of Dummy Variables in Semi -Logarithmic Equations," American Economic Review 70, no. 3 (1980): 474-475. Z68 The Appraisal Journal, Summer ?005 From the regression output, the variables ROOFCNX and WILLCNX were found to be insignificant so these were removed from the model and the regres- sion was rerun. The table in Appendix V summa- rizes these results. The F -statistic (123) shows that. the estimated relationship in the model is statisti- cally significant at the 9.5% confidence level and that at least one of the coefficients of the independent variables within the model is not zero. Table 4 summarizes the model selection test sta- tistics. Based on the A1C and BIC, the regression that. excludes the variables ROOFCNX and TT:4LLC,NX is superior to the regression that includes them (A1C and BIC are minimized). For this reason, the model excluding these variables was selected for analysis, and it. is discussed next. Table 4 Test Statistics — St Albans Full Model Sub Model Adjusted R2 0.82 0.82 AIC -118.38 -121,64 BIC 36.55 5.95 Tests for normality, heteroskedasticity, and multicollinearit.y generally indicated that the model was adequately specified and that the data were not severely ill conditioned (heteroskedasticity and rnulticollinearity were diminished when the data were transformed). The coefficient of determination (R2) indicates that approximately 82% of the variation in sale price is explained by the variation in the indepenclen.t vari- able set. All variable coefficients had the expected signs,'' except for TOWER, which was positive. The positive coefficient for TOWER shows that, when all the other variables are held constant, after the in- stallation of a CPB S in St Albans, the price of a house would increase by e°"35 = 1.12 (12%). A possible ex- planation is that cell phone technology was quite new at the time (1994), and as there had been little in the media about possible adverse health effects from CPBSs, people may have perceived it as a benefit as they were likely to get better cell phone coverage. The most significant variables were TIMESOLD.Q (the quarter in which the sale oc- curred before or after the CPBS was built), log(LANDAX) (log of land area), and M>4TFAX (to- tal floor area) and all have a positive influence on price. The positive 77114ESOLD.Q indicates that the market was increasing overtime since the CPBS was built (1994), but only to a limited extent (1.38%). The positive log of land area and total floor area shows that prices increase with increasing size. The regression coefficient on log(L/1N12.4X) is 0.3285, which indicates that, on average, a 10% in- crease in LAND.AXwill generate a 3.285% increase in price. The positive coefficient, for MATFAX indi- cates that, when all the other variables are held con- stant, for each additional mz the price would increase by e"'1"22-911 1.0022314 (0.22% increase). Significance of Variables and the Equation: Papanui The same functional form used for St Albans was used for Papanui. From the regression output, the variable C.ITGI X2 was found to be insignificant so it was re- moved from the model and the regression was rerun; Appendix VI summarizes the results. The F -statistic (152) shows that the estimated relationship in the model is statistically significant at the 95% confidence level and that at least one of the coefficients of the in- dependent variables within the model is not zero. Table 5 summarizes the model selection test sta- tistics. Based on the AIC and BIC, the regression that excludes the variable CATGYY2 is superior to the re- gression that includes it (AIC and BIC are minimized). For this reason, the model excluding this variable was selected for analysis, and is discussed next. Table 5 Test Statistics — Papanui Full Model Sub Model Adjusted R2 0.87 0.87 AIC -509.91 -510.57 BIC -371.99 -381.56 The coefficient of determination (R2) indicates that approximately 87% of the variation in sale price is explained by the variation in the independent vari- able set. This would be considered high in compari- son with the amount of explanation obtained in simi- lar hedonic house studies reported in the literature.50 All variable coefficients had the expected signs. The most significant variables were TIMESOLD. Q, MATF4 X (total floor area), and TOWER. The former two have a positive influence on price. The positive TIMESOLD.Q indicates that the 57. Notethat the variable AGE is positive as this variable indicates the year the house was built; therefore, the higher the year, the younger the home. Newer houses have less wear and tear than older homes and sell, on average, for more than older homes. 58. For example, Reichert obtained an adjusted R2 of 84%; Simons and Sementelli, 78%; Abelson, 68%; Dotzour, 56%-61%. the impact of ell phone towers on house pries in residential neighborhoods 269 market was increasing over time since the CPBS was built (2000), but only by 1.4% per quarter. The positive coefficient for mATF.4X indicates that, when all the other variables are held constant, the price would in- crease by e0J°'2570 1.00427 (0.43%), with increasing size. The negative coefficient for TONER shows that, when all the other variables are held constant, after the installation of a CPBS in Papanui, the price of a house would decrease by e-"•254"- 0.79 (21% decrease). Significance of Variables and the Equation: Beckenham The same functional form used for Papanui and St Albans was used for Beckenham. From the regres- sion output, the variable ROOFCNX was found to be insignificant so it was removed from the model and the regression was rerun; Appendix Vi l sum- marizes these results. The F-statistie (214) shows that the estimated relationship in the model is statisti- cally significant at the 95% confidence level and that at least one of the coefficients of the independent. variables within the model is not zero. Table 6 summarizes the model selection test sta- tistics. Based on the AIC and BIC, the regression that excludes the variable ROOFCNX is superior to the regression that includes it (AIC and BIC are mini- mized). For this reason, the model excluding this variable was selected for analysis. Table 6 Test Statistics — Beckenham Full Model Sub Model Adjusted R2 0.89 0.89 AIC -819.00 -818.66 BIC -641.39 -650.66 The coefficient of determination (R2) indicates that approximately 89% of the variation in sale price is explained by the variation in the independent vari- able set. Again, as with the model for Papanui this amount of explanation would be considered high. The most significant variables were TIIMESOLD. Q, 11IATE. L I, and TOWER. The former two have a positive influence on price. The positive TIIVIESOLD. Q indicates that the market was increas- ing over time since the CPBS was built in 2000, but only by 1.91% per quarter. The positive coefficient. for IVL4TE/Xindicates that, when all the other variables are held constant, the price would increase by e°°°205' 1.00421 (0.42%), with increasing size. The negative coefficient for TOWER shows that, when all the other variables are held constant, after the installation of a CPBS in Beckenham, the price of a house would de- crease by e-°29011 0.793 (20.7% decrease). Significance of Variables and the Equation: Bishopdale The same functional form used for the other three suburbs was used for Bishopdale. From the regres- sion output, the variables ROOFCNI and CATGIX were found to be insignificant so these were removed from the model and the regression was rerun; Ap- pendix VIII summarizes these results. The F -statistic (122) shows that the estimated relationship in the model is statistically significant at the 95% confidence level and that at least one of the coefficients of the independent variables within the model is not zero. Table 1 Test Statistics — Bishopdale Full Model Sub Model Adjusted R2 0.79 0.79 AIC -927.48 -929.32 BIC -775.71 -796.52 Table 7 summarizes the model selection test sta- tistics. Based on the AIC and BIC, the regression that excludes the variable ROOFCNYand CATGYI is su- perior to the regression that includes it (AIC and BIC are minimized). For this reason, the model exclud- ing these variables was selected for analysis. Again, the most significant variables were TIIVIESOLD.Q and 1 /14TFAX; the variable of interest, TOWER, was not a significant variable in the model so it is not discussed further. The former two vari- ables have a positive influence on price. The positive TLMESOLD. Q indicates that the market. was increas- ing over time since the CPBS was built in 1994, but only at 0.98% per quarter. The positive coefficient for AUTFA X indicates that, when all the other variables are held constant, the price would increase by e0 t0°""r,:, 1.004 (0.40%), with increasing size. Summary of Results The above analysis shows that the most significant variables and their impact on price were similar be- tween suburbs. This indicates the relative stability of the coefficients between each model. Interestingly, the impact of TOWER on price (a decrease of be- tween 20.7% and 21%) was very similar in the two suburbs where the towers were built in the year 2000. This may be due to the much greater media public- ity given to CPBSs after the two legal cases in Christchurch (IMcInttyreand ShirlffPrimaaySchool 210 the Appraisal loumaL Summer 7005 in 1996 and 1999, respectively). The two suburbs where TOPPER was either insignificant. or increased prices by around 12%, were suburbs where towers hacl been built. in 1994, prior to the media publicity. Limitations of the Research The main limitation affecting this survey was in the selection of the case study areas. Specifically, the ar- eas selected had CPBSs that were not highly visible to residents. If more -visible CPBSs had been selected, the results may have been quite different. Thus, cau- tion must be used in making generalizations from this study or applying the results directly to other similar studies or valuation assignments. Factors that could affect results are the distance of homes from the CPBS, the style and appearance of the CPBS, how visible the CPBS is to residents, the type of home (single family, multifamily, rental, etc.), and the so- cioeconomic make-up of the resident population. To help acichrss the proximity factor, a study is in progress examining the role of distance to the CPBSs and price effects; that study uses GIS analysis to de- termine. the impact this has on residential property prices. It. is expected that this will provide a more pre- cise estimation of the impact of a CPBS on price. It must be kept in mind thatthese results are the product of only one case study carried out. in a spe- cific area (Christchurch) at a specific time (2003). The above results indicate that value effects from CPBSs niay vary over time as market participants' percep- tions change. Perceptions toward CPBSs can change either positively or negatively over time. For example, as the World Health Organization's ten-year study of the health effects from CPBSs is completed and be- comes available, consumers' attitudes may become more positive or negative depending on the outcome of that study. Consequently, studies of the price ef- fects of CPBSs need to be conducted over time. Areas for Further Study This research has focused on residents' perceptions of negative effects from proximity to CPBSs and how these impact property values, rather than the scien- tific or technological estimates of these risks. The technologists' objective view of risk is that risk is measurable solely in terms of probabilities and se- verity of consequences, whereas the public, while taking experts' assessments into account, view risk more subjectively, based on other factors. Further, the results of scientific studies about the health ef- fects of radio frequency and microwave radiation 59. For example, high -voltage overhead transmission lines. from CPBSs are not consistent. Residents' percep- tions and assessments of risk vary according to a wide range of psychological, social, institutional, and cultural processes, and this may explain why their assessments differ from those of the experts. Given the public concerns about the potential risks arising from being located nearby a CPBS, it is important for future studies to focus more attention on the kinds of risks the public associates with CPBSs and the level of risk perceived. How far away from the CPBS do people feel they have to be to be safe? What CPBS design, size, and surrounding landscape would help CPBSs to be more publicly acceptable? What social, economic, educational, and other de- mographic variables influence how people perceive the risks from CPBSs? Do residents that are heavy users of cell phones have a different perception of CPBSs than residents who make little use of this technology? Are these perceived risks reflected in property values and to what extent? Do these per- ceived risks vary over time and to what degree? Answers to these questions, if shared <a nong re- searchers and made public, could lead to the devel- opment of a global database to assist appraisers in determining the perceived level of risk associated with CPBSs and other similar structures.59 Knowledge of the extent that these risks are incorporated into prop- erty prices and how they vary over time will lead to more accurate value assessments of properties in close proximity to CPBSs and other similar structures. Summary and Conclusions Focusing on four case study neighborhoods in Christchurch, New Zealand, this article presents the results from both an opinion survey and market sales analysis undertaken in 2003 to determine residents' perceptions towards living near a CPBS and how this may impact property prices. From the results, it ap- pears that people who live close to CPBSs perceive the sites less negatively than those who live farther away. The issue of greatestconcern for survey respon- dents in both the case study and control areas is the impact of proximity to CPBSs on future propertyval- ues. Overall, respondents would pay from 1070-19% less to over 20% less for a property if it were in close proximity to a CPBS. The opinion survey results were generally con- firmed by the market sales analysis using a hedonic house price approach. The results of the sales analy- sis show prices of properties were reduced by around 21% after a CPBSwas built in the neighborhood. How - the 'Input of yell phone towers on house prices in residential neighborhoods ever, this result varies between neighborhoods, with a positive impact on price being recorded in one neighborhood, possibly due to the CPBS being built in that suburb before any adverse media publicity about CPB Ss appeared in the local Christchurch press. Research to date reports no clearly established health effects from radio frequency emissions of CPBSs operated at or below the current safety stan- dards, yet recent media reports indicate that people still perceive that CPBSs have harmful effects. Thus, whether or not CPBSs are proven to be free from health risks is only relevant to the extent that buyers of properties near CPB Ss perceive this to be true. Even buyers vvho believe that there are no adverse health effects from CPB Ss, knowing that other potential buy- ers might think the reverse, will probably seek a price discount for a property located hear a CPBS. The comments of survey participants indicate the ongoing concerns that residents have about. CPBSs. There is the need to increase the public's understand- ing of how radio frequency transmitting facilities oper- ate and the strict exposure -limit standards unposed on the telecommunication industry. As more information is discovered that refutes concerns regarding adverse health effects from CPBSs, and as information about the NZ safety standards are made more publicly avail- able, the perception of risk may gradually change, elimi- nating the discounts for neighboring properties. Additional Reading Appraisal Institute. Proposed USPAP Statement on Appraisal Standards -First Exposure Draft: Utilization of Statistical and Market Survey Techniques in Real Estate Research, Appraising, Counselling and Consulting Assignments. Report of Task Group for the Development of Standards for Determining the Acceptability of Applications of Statistical and Market Survey Techniques to the Valuation of Real Property. Chicago: Ap- praisal Institute, 2000. Burch, J. B., J. S. Reif, M. G. Yost, T. J. Keefe, and C.A. Pittrat. "Nocturnal Excretion of Urinary Melatonin Metabolite Among Utility Workers." Scand J York Environ Health 24, ii0. 3 (1998): 183-189. Christchurch City Council Web site, http:// www.ccc.govt.nz/index.asp. Fesenko, E. E., V R. Makar, E. G. Novoselova, and V B. Sadovnikov. "Microwaves and Cellular Immunity: Effect of Whole Body Microwave Irradiation on Tumour Necrosis Factor Produc- tion in Mouse Cells.. Bioelectrochem Bioenerg49, no. 1 (1999): 29-35. 511 The Appraisal Journal. Summer /005 Sandy Bond, PhD, MBS, ANZIV, SNZPI, is a senior member of the New Zealand Property Institute (NZPI), a director on the Board of the International Real Estate Society, and a past president of the Pacific Rim Real Estate Society (PRRES). She was awarded the PRRES Achievement Award in 2002 and the NZ Institute of Valuers' Presidential Citation in 1997. Before com- mencing her academic career in 1991, she worked as an appraiser in both New Zealand and London, UK. Contact: dr_sandybond@yahoo.com Ko-Kang (Kevin) Wang is a recent graduate from the University of Auckland and has been a tutor in the Statistics Department at the university. Wang has recently commenced doctoral studies in Australia. Contact: Kevin.Wang@anu.edu.au Acknowledgements The authors thank Mark Dunbar of Telfer Young and Robert Albrecht of DTZ for sharing the results of their cell phone research on valuation impacts from proximity to CPBSs, and Maya Marshall, Project Administrator at Telecom NZ, and Rapheal Hilbron, Community Relations Manager at Vodafone NZ, for information about CPBS locations and environmental impacts from these. Khudnitskii, S. S., E. A. Moshkarev, and T. V. Fomenko. "On the Evaluation of the Influence of Cellular Phones on Their Users." [In Russian] lkled Tr Prom Ekol 9 (1999): 20-24. International Commission on Non -Ionizing Radiation Protection. "Health Issues Related to the Use of Hand -Held Radio Telephone and Base Transmitters?' Health Physics 70, no. 4 (April 1996): 587-593. International Commission on Non -Ionizing Radiation Protection. "Guidelines for Limiting Exposure to Time -Varying Electric, Magnetic, and Electromagnetic Fields (Up to 300 GHz)." Health Physics 74, no. 4 (April 1998): 494-522. Priestley, 'f'., and G. Evans. Perception of a Trans- mission Line in a Residential Neighbourhood: Results of a Case Study in. Vallejo, California, San Francisco: Southern California Edison Environ- mental Affairs Division, December 1990. Priestley, T., and P. C. Ignelzi. /I Metlrodoiop;yfor Assessing Transmission Line Impacts in Residen- tial Communities. Washington, DC: Edison Electric Institute, June 1989. Repacholi; M. H., A. Bastes, V Gebski, D. Noonan, J. Finnic, and A. W. Harris. "Lymphomas in E mu-Pim1 Transgenic Mice Exposed to Pulsed 900 MHZ Electromagnetic Fields." Radiat Res 147, no. 5 (1997): 631-640. Royal Society of Canada. A Review of the Potential Health Risks of Radiofiequenzcy Fields from Wireless Telecommunication Devices: An Expert Report Prepared at the Request of the Royal Society of Canada for Health, Canada. Ottawa, Ontario: Royal Society of Canada, March 1999. http://www.rsc.cafifilesipublieations/ expert_panels/ RF//RFrep ort-en:pol'. World health Organization. Electromagnetic Fields (300 Hz to300 GHz.). Environmental Health Criteria 137. Geneva: World Health, Organization, 1993. Appendix 1 Location Map Areas circled in white at the top are without a cell phone tower, while areas circled in the bottom three maps have a cell phone tower. Source: http://www.ccc.govt.nz/maps/Wises/ the impact often phone towers on house prices in residential neighborhoods 11 Appendix II Summary of the Survey Results Variable Occupancy Responose Valid Percent (%) Case Study Control Homeowner 78.5 94.2 Tenant 21.5 5.8 How long have you lived there? Less than 6 months 6 months -1 year 1-4 years More than 5 years 8.0 2.6 8.6 4.5 25.1 27.7 58.3 65.2 How would you rate the desirability of your neighborhood? Superior 27.4 30.9 Above Average 37.4 36.8 Average 28.5 27.0 Below Average 5.6 4.6 Inferior 1.1 0.7 Would you be opposed to construction of a cell phone tower nearby? Yes No 72.1 27.9 When you purchased/began renting was the cell phone tower already constructed? Yes No 39.3 60.7 Was the proximity of the cell phone tower a concern to you? Yes No 20.0 80.0 Would you have gone ahead with rental/purchase if you had known a Yes cell phone site was to be constructed? No 73.9 26.1 Is location of a cell phone tower a factor you would consider when moving? Yes No 83.4 16:6 Is the cell phone tower visible from your house? Yes No 45.7 54.3 If yes, how much does it impact on your view? Very obstructive Mildly obstructive Barely noticeable 9.6 24.5 66.0 In what way does it impact on the enjoyment of living in your house? Views 11.8 Aesthetics 20.6 Health concerns 36.8 Change in property value 19.9 Other 11.0 Effect a nearby cell phone tower would have on the price/rent you would pay for the property Tower wasn't constructed Pay substantially more Pay a little more Pay a little less Pay substantially less Not influence price 53.1 0.0 2.3 2.8 0.6 51.4 0.0 0.0 37.6 45.4 17.0 % Effect a nearby cell phone tower would have on the price/rent you 20% higher or more 5 3.2 would pay for the property 10-19% more 10 1.6 1-9% more 14 2.4 1-9% less 33 19.2 10-19% less 24 36.0 20% or a greater reduction 14 37.6 Concern about the possibility of harmful health effects in the future Does not worry me Worries me somewhat Worries me a lot 50.3 38.0 11.7 19.9 38.4 41.7 Concern about the stigma associated with houses near the cell phone sites Does not worry me Worries me somewhat Worries me a lot 54.6 33.9 11.5 20.8 45.0 34.2 Concern about the affect on your properties value in the future Does not worry me Worries me somewhat Worries me a lot 61.3 25.4 13.3 15,4 37.2 47.4 Concern about the aesthetic problems caused by the tower Does not worry me Worries me somewhat Worries me a lot 63.3 25.4 11.3 18.2 37.0 44.8 ® the Appraisal Journal. Summer )005 Appendix I11 Variable Codes Category of Dwelling Code Definition D Dwelling houses are of a fully detached or semi-detached style situated on their own clearly defined piece of land. E Converted dwelling houses that are now used as rental flat. F Ownership home units which may be single storey or multi-storey and which do not have the appearance of dwelling houses. H Home and income. The dwelling is the predominant use, and there is an additional unit of use attached to or associated with the dwelling house that can be used to produce income. R Rental flats that have been purpose built. Quality of the Principal Structure Code Definition A Superior design and quality of fixtures and fittings is first class. B The design is typical of its era and the quality of the fixtures and fittings is average to good. C The design is below the level generally expected for the era, or the level of fixtures and fittings is barely adequate and possibly of below average quality. Building Materials: Walls and Roof Code Definition W Wood B Brick C Concrete S Stone R Roughcast F Fibrolite M Malthoid P Plastic Iron A Aluminium G Glass T Tiles X Appendix IV Descriptive Statistics Variable Mean Std. dev. Median Minimum Maximum Range St Albans: Sale Price ($) 221,957 110,761 200,000 42,000 839,000 797,000 Land Area (ha) 0.0658 0.0331 0.0579 0.0261* 0.3794 0.3533 Floor Area (m2) 161 70.40 150 50 450 400 Beckenham: Sale Price ($) 116,012 50,037 111,000 21,500 385,000 363,500 Land Area (ha) 0.0601 0.0234 0.0553 0.0164* 0.2140 0.1976 Floor Area (m2) 115 32.50 110 40 340 300 Papanui: Sale Price ($) 127,661 51,114 119,000 43,000 375,000 332,000 Land Area (ha) 0.0685 0.0289 0.0675 0.0310 0.3169 0.2859 Floor Area (m2) 122 34.60 110 56 290 234 Bishopdale: Sale Price ($) 136,786 41,390 134,500 56,000 342,000 286,000 Land Area (ha) 0.0679 0.0163 0.0653 0.0400 0.2028 0.1628 Floor Area (m2) 125 31.20 118 64 290 226 These small land areas are related to apartments or units in a block of apartments/units that have the land area apportioned on a pro rata basis. the impart of cell phone towers on house prires in residential neighborhoods ra Appendix V Regression Model: St Albans log(SLNETX) = TOWER + CATGYX2 + CATGYX4 + TIMESOLD.Q +AGE + log(LANDAX) a- MATFAX +SITSTX 116 Residuals: Min 1.4 Median 3Q -0.72855 -0.15032 0.01593 0.14263 Max 0.72047 Coefficients: Estimate Std. Error t -value Pr(> Iti) (Intercept) 9.1781868 0.6769096 13.559 < 2e-16 *** TOWER 0.1133186 0.0318188 3.561 0.000395. *** CATGYX2D 0.1846417 0.0702520 2.628 0.008776 ** CATGYX20 0.0334663 0.1008594 0.332 0.740134 CATGYX4B -0.1551409 0.0245485 -6.320 4.75e-10 *** CATGYX4C -0.1483169 0.0722959 -2.052 0.040600 TIMESOLD.Q 0.0136663 0.0008208 16.650 <2e-16*** AGE 0.0016408 0.0003521 4.660 3.81e-06 *** log(LANDAX) 0.3285367 0.0283610 11.584 <2e-16 *** MATFAX 0.0022314 0.0001962 11.373 <2e-16 *** SITSTXAIKMANS RD 0.4029259 0.0533671 7.550 1.41e-13 *** SITSTXBEVERLEY ST 0.2330787 0.0803137 2.902 0.003827 ** SITSTXBRISTOL ST 0.1706840 0.0521716 3.272 0.001124 ** SITSTXBROWNS RD 0.2492536 0.0720854 3.458 0.000579 *** SITSTXCOX ST 0.3055798 0.0581672 5.253 2.00e-07 *** SITSTXGORDON AVE 0.0823422 0.0679833 1.211 0.226236 SITSTXKNOWLES ST 0.1690979 0.0558911 3.025 0.002576 ** SITSTXMANSFIELD AVE 0.2954242 0.0652983 4.524 7.16e-06 *** SITSTXMCDOUGALL AVE 0.3303105 0.0623720 5.296 1.60e-07*** SITSTXMURRAY PL 0.3613773 0.0629166 5.744 1.40e-08 *** SITSTXOFFICE RD 0.3681146 0.0543368 6.775 2.71e-11*** SITSTX Other 0.0618491 0.0736629 0.840 0.401416 SITSTXPAPANUI RD 0.1940369 0.0560474 3.462 0.000570 *** SITSTXRANFURLY ST 0.1701716 0.0617504 2.756 0.006012 ** SITSTXST ALBANS ST 0.1458665 0.0571172 2.554 0.010873 * SITSTXWEBB ST 0.1895432 0.0725061 2.614 0.009143 ** SITSTXWESTON RD 0.2084419 0.0527555 3.951 8.60e-05 *** Signif. codes: 0 '***' 0.001 '**' 0.01 '*' 0.05 ': 0.1 ' ' 1 Residual standard error; 0.2175 on 677 degrees of freedom Multiple R -Squared: 0.8253, Adjusted R -squared: 0.8186 F -statistic: 123 on 26 and 677 DF, p -value: < 2.2e-16 Appendix VI Regression Model: Papanui I n (formula = l og(SLNETX) - TOWER + 5ITS7X + TIMESOLD.Q + AGE + log(LANDAX) + MATFAX + WALLCNX + ROOFCNX + CATGYX4, data = Papanutfinal) Residuals: Min 1Q Median 3Q Max -0.484987 -0.098006 0.003859 0.106253 0.563126 Coefficients: Estimate Std. Error t -value Pr(> ItI) (Intercept) 5.9482316 0.6998186 8.500 < 2e-16*** TOWER -0.2339640 0.0240908 -9.712 <2e-16 *** SITSTXHOANI ST -0.1966982 0.0265429 -7.411 4.26e-13 *** SITSTXLANGDONS RD -0.1192547 0.0281242 -4.240 2.58e-05 *** SITSTXLEANDER ST 0.0305555 0.0449437 0.680 0.496853 SITSTXMATSONS AVE 0.0949636 0.0292461 3.247 0.001231** SITSTXMORELAND AVE -0.0892332 0.0397622 -2,244 0.025183 * SITSTXMORRISON AVE -0.1984492 0.0289772 -6.848 1.84e-11 *** SITSTXOther -0.1543194 0.0337436 -4,573 5.83e-06 *** SITSTXSAILS ST -0.0761412 0.0433455 -1.757 0.079490 . SITSTXSAWTELL PL 0.1840793 0.0393904 4.673 3.66e-06 *** SITSTXSAWYERS ARMS RD 0.0872393 0.0201388 4.332 1.73e-05 *** SITSTXST JAMES AVE 0.2497688 0.0289940 8.615 < 2e-16 *** TIMESOLD.Q 0.0138914 0.0004137 33.575 <2e-16 ***" AGE 0.0029307 0.0003512 8.345 4.85e-16 *** log(LANDAX) 0.0904764 0.0270812 3.341 0.000886 *** MATFAX 0.0042576 0.0002410 17.664 < 2e-16 *** WALLCNXC 0.0054100 0.0200666 0.270 0.787558 WALLCNXF -0.0980851 0.0464442 -2.112 0.035106 * WALLCNXO -0.1158407 0.0468334 -2.473 0.013655 * WALLCNXR -0.0670051 0.0244382 -2.742 0.006291 ** WALLCNXW -0.0679166 0.0192628 -3.526 0.000454 *** WALLCNXX -0.0571365 0.0358369 -1.594 0.111381 ROOFCNXI 0.1502973 0.1139845 1.319 0.187810 ROOFCNXO 0.0870092 0.1164152 0.747 0.455111 ROOFCNXT 0.0954874 0.1138506 0.839 0.401965 CATGYX4B -0.0623758 0.0343487 -1.816 0.069872. CATGYX4C -0.3669901 0.0905659 -4.052 5.74e-05 *** Signif. codes: 0'***' 0.001 '**' 0.01 'C' 0.05 ': 0.1 ' ' 1 Residual standard error: 0.1579 on 604 degrees of freedom Multiple R -Squared: 0.8718, Adjusted R -squared: 0.8661 F -statistic: 152.2 on 27 and 604 DF, p -value: < 2.2e-16 The Appraisal JUII(Ildl. Sommer /005 Appendix VII Regression Model: Beckenham In(formula = log(SLNETX) - TOWER + SITSTX + CATGYX4 + TIMESOLD.Q + AGE+ log(LANDAX) + MATFAX + WALLCNX+ CATGYX2, data = Beckenham.final) Residuals: Coefficients: (Intercept) TOWERI SITSTXBECKENHAM ST SITSTXBOON ST SITSTXBRADFORD AVE SITSTXCOLOMBO ST SITSTXDEVON ST SITSTXDUNN ST SITSTXFISHER AVE SITSTXLONGFELLOW ST SITSTXOTHER SITSTXPERCIVAL ST SITSTXROXBURGH ST SITSTXSOMERFIELD ST SITSTXSOUTHAMPTON ST SITSTXSOUTHEY ST SITSTXSTRICKLAND ST SITSTXTENNYSON ST SITSTXWEMBLEY ST CATGYX4B CATGYX4C TIMESOLD.Q AGE Iog(LANDAX) MATFAX WALLCNXC WALLCNXF WALLCNXO WALLCNXR WALLCNXW WALLCNXX CATGYX2D CATGYX2F CATGYX2R Min 1Q Median -0.64490 -0.09026 0.01142 Estimate 9.2062865 -0.2301918 0.1648069 -0.0616738 0.0923843 0.0623765 -0.0959430 -0.0207886 0.2271245 -0.0186953 -0.0222126 -0.0347190 0.1029109 0.0186495 -0.0243265 -0.0324513 -0.0819418 0.1165007 0.0648226 0.0275481 0.1168640 0.0189904 0.0010988 0.1546535 0.0042054 -0.0208433 -0.1171637 -0.0445073 -0.1119164 -0.0629968 - 0.0992564 0.1445276 0.3069113 0.2927391 Std. Error 0.4725194 0.0182774 0.0515406 0.0484966 0.0494942 0.0467234 0.0457562 0.0427676 0.0400288 0.0451597 0.0467607 0.0517740 0.0466753 0.0428968 0.0402926 0.0429880 0.0407196 0.0393410 0.0458033 0.0373405 0.0469787 0.0003396 0.0002426 0.0195655 0.0002138 0.0378338 0.0394091 0.0399745 0.0235736 0.0222366 0.0398493 0.0399650 0.0744524 0.1222453 3Q 0.10112 t -value 19.483 -12.594 3.198 -1.272 1.867 1.335 -2.097 -0.486 5.674 -0.414 - 0.475 - 0.671 2.205 0.435 - 0.604 - 0.755 -2.012 2.961 1.415 0.738 -2.488 55.928 4.530 7.904 19.674 -0.551 -2.973 -1.113 -4.748 -2.833 -2.491 3.616 4.122 2.395 Max 0.40993 Pr(> Ill) < 2e-16 < 2e-16 0.001436 ** 0.203817 0.062300 . 0.182223 0.036299 * 0.627031 1.90e-08 *** 0.678990 0.634888 0.502663 0.027729 * 0.663851 0.546171 0.450520 0.044494 0.003147 ** 0.157359 0.460864 0.013049 * <2e-16*** 6.74e-06 *** 8.19e-15 *** < 2e-16 0.581833 0.003031 ** 0.265849 2.41e-06 *** 0.004718 ** 0.012933 * 0.000316 *** 4.11e-05 0.016847 * Signif. codes:0 '***' 0.001 '**' 0.01 '*' 0.05': 0.1 " 1 Residual standard error: 0.1515 on 864 degrees of freedom Multiple R -Squared: 0.8911, Adjusted R -squared: 0.8869 F -statistic: 214.2 on 33 and 864 DF, p -value: < 2.2e-16 Appendix VIII Regression Model: Bishopdale In(formula = log(SLNETX) - TOWER +TIMESOLD.Q + AGE + Iog(LANDAX) + MATFAX + WALLCNX + SITSTX, data = 8ishopdale.final) Residuals: Min 1Q Median 3Q Max -0.53633 -0.08893 0.01446 0.08850 0.49048 Coefficients: (Intercept) TOWER TIMESOLD.Q AGE log(LANDAX) MATFAX WALLCNXC WALLCNXO WALLCNXR WALLCNXW SITSTXCARDOME ST SITSTXCHEDWORTH AVE SITSTXCLOTILDA PL SITSTXCOLESBURY ST SITSTXCOTSWOLD AVE SITSTXEASTLING ST SITSTXFARRINGTON AVE SITSTXHAREW00D RD SITSTXHIGHSTED RD SITSTXKILBURN ST SITSTXKINGROVE ST SITSTXLEACROFT ST SITSTXMURMONT ST SITSTXNEWMARK ST SITSTXOTHER SITSTXRALEIGH ST SITSTXSTACKHOUSE AVE Estimate 9.0005033 0.0262575 0.0097887 0.0013236 0.1357753 0.0039665 -0.0169935 0.0785660 -0.0693225 -0.0815023 0.0610536 0.0330487 0.2252988 0.0528749 0.0604953 0.0551537 -0.0001768 0.0204412 0.0391760 - 0.0176756 -0.0052772 0.1058243 0.1825316 -0.0342136 0.0525437 0.0470151 0.0235719 Std. Error t -value 0.6988891 12.878 0.0182796 1.436 0.0004834 20.251 0.0003598 3.679 0.0333622 4.070 0.0001855 21.389 0.0108641 -1.564 0.0336688 2.333 0.0300511 -2.307 0.0230110 -3.542 0.0314227 1.943 0.0317738 1.040 0.0420078 5.363 0.0302668 1.747 0.0286474 2.112 0.0319833 1.724 0.0238544 -0.007 0.0252674 0.809 0.0253953 1.543 0.0366951 -0.482 0.0375965 -0.140 0.0333633 3.172 0.0365287 4.997 0.0272490 -1.256 0.0253634 2.072 0.0314032 1.497 0.0278844 -0.845 Pr(> ItI) < 2e-16 * * * 0.151259 <2e-16 *** 0.000249 *** 5.16e-05 *** < 2e-16 ** * 0.118160 0.019863 * 0.021313 * 0.000420 *** 0.052360 . 0.298589 1.06e-07 *** 0.081018 . 0.035012 0.085003. 0.994087 0.418753 0.123302 0.630155 0.888406 0.001571 ** 7.12e-07 *** 0.209621 0.038612 * 0.134740 0.398165 Signif. codes:0 '***' 0.001 '**' 0.01 '*' 0.05 '.' 0.1 ' ' 1 Residual standard error: 0.137 on 821 degrees of freedom Multiple R -Squared: 0.7946, Adjusted R -squared: 0.7881 F -statistic: 122.1 on 26 and 821 DF, p -value: < 2.2e-16 the impart of (ell phone towers on house prices in residential neighborhoods Report on Review of a Conditional Use Permit for the Construction of a Personal Wireless Service Facility on the Palo Alto Little League Ball Field in the City of Palo Alto, California Prepared for Clearlight Ventures Prepared by Kreines & Kreines, Inc. 58 Paseo Mirasol Tiburon, CA 94920 (415) 435-9214 October 2014 Table of Contents Executive Summary 1 Overall Conclusions on Planning and Zoning 3 Recommendation 3 A. Introduction 4 B. Project Description 5 C. Previous Designs for the Project Site 8 D. Definition of Terms 10 E. Verizon Drawings 12 1. Title Sheet (T1) 12 2. Site Survey (C-1) 13 3. Site Survey (C-2) 14 4. Site Plan (Title of Sheet is Site Location) (A-1) 16 5. Enlarged Equipment Area (Title on Sheet is Site Location) (A-2) 18 6. Verizon Equipment Layout (Title on Sheet is Site Location) (A-4) 19 a. Legend 19 b. Plan labeled "Prop. Outdoor Equipment Layout" 20 7. Elevation View (A-5) 21 8. Elevation View (A-6) 25 9. Elevation View (A-7) 25 10. Overall Conclusions for Drawings 25 F. Attractive Nuisance 27 G. Equipment 28 1. Antennas 28 i 2. Monopole 30 3. ReliOn Hydrogen Fuel Storage 33 H. Planning and Zoning 36 1. City of Palo Alto Comprehensive Plan 36 2. Zoning 39 3. Previous Actions on the PALL Site 41 a. Use Permit 65 -UP -11 41 b. ARB Approval 42 c. Violations 44 d. PALL CUP 44 e. Amending the PALL CUP 45 4. Other Zoning Matters 52 I. Recommendations 55 Appendix A: Kreines & Kreines, Inc. Qualifications 57 Appendix B: List of Documents 65 ii Executive Summary The City of Palo Alto is proceeding incorrectly by considering an entirely new CUP on a property that already operates under a CUP. According to the Palo Alto Municipal Code, Title 18, Zoning: Section 18.76.010(b)(2) Any expansion in the building size or site area of an existing conditional use shall necessitate the amendment of the conditional use permit. Denial of an application for amendment of a conditional use permit does not constitute a revocation of the original conditional use permit. The consideration of a discretionary permit is essentially a fact-finding process. Verizon has submitted information to the City of Palo Alto that is misleading, contradictory and distracting. Verizon proposed a design it calls an "enclosure." But the Verizon equipment building is actually a building, and subject to more limitations than an enclosure. Calling a building an enclosure is misleading. Verizon proposes a lease area. In one set of presentations, the lease area is 442 square feet. In another set of presentations, the lease area is 510 square feet. These are not facts, they are contradictions. Verizon purports to mount "field lights" at a height on a new monopole at the same height the lights are today on a light pole. The height of the "field lights" are not a subject of the proposed project, nor were they a subject of the PALL CUP granted in 2008. It is the height of the poles that was set in the 2008 PALL CUP at 60 feet, and the fact that the monopole is proposed at 65 feet that is the issue in both CUPs, existing and proposed. The height of the field lights is not a question of fact. It is a distraction. Verizon proposes fuel cell storage tanks. These are hazardous, requiring the design and installation provided for in the manufacture's "ReliOn Fuel Ce11 Solution Guide to Fuel Ce11 Permitting." The presentation of fuel cell storage is not a factual matter. It is a requirement of the manufacturer that has not been followed. Verizon changes what exists on the project site from one representation in a survey to another representation in another survey. Verizon than discards both representations in favor of "three containers" which are either already in place or which need to be brought in to the project site. The square storage building in the 1 C-1 Survey' and the half building in the C-2 Survey2 are stated to exist by a licensed surveyor. Yet Verizon decides to call the square storage building or the half building "three containers." These are not facts, they are conflicts. Verizon proposes an "Outdoor Equipment Layout" that is inside a proposed building. The equipment should be outdoors for safe operation of hydrogen fuel storage tanks, but Verizon wants the citizens of Palo Alto to believe that hydrogen fuel storage tanks are in an "enclosure." The "enclosure" has a roof and locked doors, and is clearly a building. Further, Verizon provides a "Legend" to the plan for the equipment building that has nothing to do with the "Outdoor" Equipment Layout. These are not facts. They are distractions. The equipment proposed by Verizon is inadequate to deliver the services at the frequencies proposes: 3 • Verizon states PCS, AWS and 700 MHz services. They will need more than three antennas, more like nine antenna plus several RRUs. • The ReliOn fuel storage could be dangerous at the site of an athletic field. Finally, Verizon has follows a practice of constantly changing its drawings that are different than those accepted by the City of Palo Alto to represent the project. It is impossible to identify which drawings were announced to the neighbors as the proposed project, which were reviewed by City staff, and which are the subject to a Notice of Completion. Even if the facts were to be found, it becomes a question of which set of facts apply. Verizon has presented a moving target with several different sets of drawings showing different projects all dated after the City accepted the application for the project. It is impossible to review a design when the design is unstable, ever-changing and filled with inconsistencies. Ultimately, the facts must be determined to be substantial evidence in order that findings of fact can be made by the ARB. Kreines & Kreines, Inc. presents its substantial evidence that there are no facts, only problems, to support the Verizon proposed project. 1 Verizon Wireless (NSA Wireless, Inc.), Site Survey, C-1, 8/30/12 with revisions through 8/21/14. 2 Verizon Wireless (NSA Wireless, Inc.), Site Survey, C-2, 8/30/12 with revisions through 8/21/14. 3 Verizon Wireless, Justification Statement, no date, 2 Overall Conclusions on Planning and Zoning The proposed project cannot be approved without amending the PALL CUP. The amendment of the PALL CUP will require dealing with PALL's non- compliance with its own CUP. Even if the PALL CUP is successfully amended, the proposed project would still be inconsistent with the City of Palo Alto Comprehensive Plan and the Palo Alto Municipal Code. Recommendation The City of Palo Alto should attempt to amend the PALL CUP to correct all existing non-compliance issues. The ARB could deny the PALL CUP amendment, leaving the existing PALL CUP intact but non -compliant. 3 A. Introduction Kreines & Kreines, Inc. was retained by Clearlight Ventures to review the application submitted to the City of Palo Alto by Verizon Wireless (Verizon) for a Conditional Use Permit (CUP). The proposed project consists of the construction of a personal wireless service facility on the Palo Alto Little League ball field (PALL field).4 Kreines & Kreines, Inc. has conducted a comparison of the application with the City of Palo Alto's plans and policies as well as with Kreines & Kreines, Inc.'s knowledge of planning for personal wireless service facilities. Kreines & Kreines, Inc. is a wireless planning consulting firm specializing in assisting local government in the review, evaluation, deployment and approval of personal wireless service facilities. This report was prepared by Ted Kreines, AICP, President of Kreines & Kreines, Inc. Mr. Kreines has both the educational background and on-the-job experience to prepare this report. Mr. Kreines has college degrees in both communications and planning: • Master of City Planning, University of Pennsylvania. • Master of Arts, Communications, Annenberg School, University of Pennsylvania. • Bachelor of Science in City Planning (Honors), University of Illinois. In addition, Mr. Kreines has the following certifications in planning and environmental assessment: • Certified as a Planner by the American Institute of Certified Planners (AICP). • Formerly Certified as a Registered Environmental Assessor (REA) by the State of California Environmental Protection Agency. Mr. Kreines' resume is attached to this report in Appendix A along with a list of wireless planning projects completed by Kreines & Kreines, Inc. 4 The PALL is not an applicant for the proposed project, but has given Verizon authorization to act in its behalf. 4 Kreines & Kreines, Inc. refers to numerous documents in this report. A list of these documents is contained in Appendix B. Kreines & Kreines, Inc. acknowledges that we may not have received all relevant documents and that revisions were made to Verizon's drawings after the neighbors were notified that the materials were available at the City of Palo Alto Development Center.5 Kreines & Kreines, Inc. does not know if the versions of documents we reviewed represent the latest versions. B. Project Description Verizon has applied to the City of Palo Alto for a Conditional Use Permit (CUP) for a personal wireless service facility to be located at the PALL field at 3672 Middlefield Road in Palo Alto. Kreines & Kreines, Inc. has not seen any document stating that the City of Palo Alto Planning and Community Environment Department has found this application to be complete; however, the Department has initiated the Architectural Review Board (ARB) public hearings under pressure from Verizon.6 According to Verizon's drawings, the proposed project consists of the following:7 • Three Verizon radio equipment cabinets placed inside an equipment building, described as an "enclosure" surrounded by a concrete block wall nine feet high, with a roof. Calling a building an "enclosure" is misleading. • Three antennas to be located in a radome cylinder (shield) on top of a new 65 - foot AGL (above ground level) "light/antenna pole." The light/antenna pole is also called a "monopole" in the Verizon drawings and the light/antenna pole is called a "monopole" in this report. Kreines & Kreines, Inc. refers to the existing light poles as "light poles" but when monopoles are proposed, they 5 City of Palo Alto, Notice of Proposed Development Project, 2/27/14. 6 Mackenzie & Albritton LLP, letter to Cara Silver, Esq., Senior Assistant City Attorney, 8/26/14. 7 Verizon Wireless, (Title Sheet) Site Location, T-1, 2/12/14 with revisions through 8/19/14, Verizon Wireless (NSA Wireless, Inc.), Site Survey, C-1, 8/30/12 with revisions through 8/21/14, Verizon Wireless (NSA Wireless, Inc.), Site Survey, C-2, 8/30/12 with revisions through 8/21/14, Verizon Wireless (NSA Wireless, Inc.), Legal Description, C-3, 8/30/12 with revisions through 8/21/14, Verizon Wireless, Site Plan (Title of Sheet is Site Location), A-1, 2/12/14 with revisions through 8/19/14, Verizon Wireless, Enlarged Equipment Area (Title on Sheet is Site Location), A-2, 2/12/14 with revisions through 8/19/14, Verizon Wireless, Access and Utility Plan (Title on Sheet is Site Location), A-3, 2/12/14 with revisions through 8/19/14, Verizon Wireless, Verizon Equipment Layout (Title on Sheet is Site Location), A-4, 2/12/14 with revisions through 8/19/14, Verizon Wireless, Elevation View (Title on Sheet is Site Location), A-5, 2/12/14 with revisions through 8/19/14, Verizon Wireless, Elevation View (Title on Sheet is Site Location), A-6, 2/12/14 with revisions through 8/19/14 and Verizon Wireless, Elevation View (Title on Sheet is Site Location), A-7, 2/12/14 with revisions through 8/19/14. 5 are monopoles. The monopole may have lights on it as a secondary use. Calling a monopole a "light/antenna pole" is misleading. • Conveyance of an unspecified number of cables underground and along outside walls via a cable "route" for approximately 50 feet. Dozens of cables conveyed underground will require concrete channels set in massive trenches producing scores of yards of off -haul. • One battery cabinet for three strings of batteries. (A string is an interconnected row of lead -acid batteries.) Batteries are sources of ignition and contain sulfuric acid. • One emergency generator plug. An emergency generator plug is useful when a generator parking area is placed next to it. In this set of drawings, the emergency generator parking area is 40 to 50 feet away. • One -48v power plant. • One ReliOn Hydrogen Fuel Cell. • Two ReliOn HSM 9 Fuel Storage Tanks. • Emergency Temporary Generator Parking. • An emergency generator would be brought to the project site during an emergency and power transferred from the generator to a generator plug in the proposed equipment building. • Three "relocated containers" in place of a square shaped storage building. It is not clear whether the three containers were relocated, are called "relocated" or are to be relocated. Containers are totally enclosed structures with a roof. They are buildings when used for storage and should be identified as such. • RRHs or Remote Radio Head (aka RRUs or remote radio units). • TMAs or Tower -Mounted Amplifiers. • Two GPS antennas are shown on only one elevation drawing8 and not on any other Verizon documents reviewed by Kreines & Kreines, Inc. 8 Verizon Wireless, Elevation View (Title on Sheet is Site Location), A-5, 2/12/14 with revisions through 8/19/14. 6 The application on file with the City of Palo Alto for the proposed project describes the project as follows:9 Co -location of 6 Panel Antennas between two existing light structures on the little league field (towers will not be changed in height or location of the approved lights). See Justification Statement for more information. The application document and the drawings are totally inconsistent. The drawings specify, but don't always show, three antennas located on one monopole. The application states there will be co -location of 6 antennas on two existing light structures. Conclusion: It is impossible for City of Palo Alto decision makers or citizens of Palo Alto to understand a project with such profound conflicting descriptions. The City should have Verizon revise their application and application drawings to be consistent and to describe the same project. Changing the drawings after the City of Palo Alto accepts the application is misleading to the public. The PALL field is called the "project site" in this report. The project site consists of an approximately 2.74 acre area known as Assessor's Parcel Number (APN)132- 06-013.10 A portion of the Palo Alto utility sub -station to the north, called Parcel 2," is also included in the project site. Kreines & Kreines, Inc. does not know whether "Parcel 2" is a legally merged portion of APN 132-06-013 and constitutes the 6,192 square feet of City of Palo Alto land used for the PALL field. However, Parcel 2 uses a driveway owned and controlled by the City of Palo Alto. According to some Verizon drawings, Verizon plans to lease 442 square feet from PALL between an existing square shaped storage building and two smaller "storage sheds."11 The 442 square feet is called the lease area. The proposed project would change the square -shaped storage building to "three containers." Two other Verizon drawings show the lease area as 510 square feet.12 There is 9 City of Palo Alto, Development Review Application, 2/27/14. 10 Verizon Wireless, Site Location, T-1, 2/12/14 with revisions through 8/19/14. 11 Verizon Wireless (NSA Wireless, Inc.), Site Survey, C-1, 8/30/12 with revisions through 8/21/14, Verizon Wireless (NSA Wireless, Inc.), Site Survey, C-2, 8/30/12 with revisions through 8/21/14 and Verizon Wireless (NSA Wireless, Inc.), Legal Description, C-3, 8/30/12 with revisions through 8/21/14. 12 Verizon Wireless, Elevation View (Title on Sheet is Site Location), A-6, 2/12/14 with revisions through 8/19/14 and Verizon Wireless, Elevation View (Title on Sheet is Site Location), A-7, 2/12/14 with revisions through 8/19/14. 7 confusion and inconsistency between the drawings in the same set of drawings with the same dates. C. Previous Designs for the Project Site According to the City of Palo Alto Accela,13 the application for the proposed project was accepted by the City of Palo Alto by Jason Nortz of the Department of Planning and Community Environment on 2/27/14. Drawings from that application were routed to various City departments with the following description:14 Request by Verizon Wireless for a minor architectural review board and conditional use permit application for the co -location of 6 panel antennas between two existing light fixtures at the Palo Alto Little League Field. Zone District. R- 1(8000). Even though the City of Palo Alto, Department of Planning and Community Environment accepted the application in February, the proposed project drawings were revised on 3/12/14, many times again, and finally on 8/19/14. These dates appear to mean that the Verizon drawings were changed after a set of drawings were accepted by the City of Palo Alto on 2/27/14. This is an example of a process where the City accepts Verizon submittals, notices them to the public, and then allows Verizon to make changes. It should be standard practice in the review of development projects to "freeze" a design and give it an identification code. If the design of the project changes, the identification code should change, just so everyone is on the same page. The City of Palo Alto "Accela" system logs projects into a database as the applications are received and accepted by the City.15 In the City of Palo Alto Accela system, an alpha -numeric code is issued to the project, but this code does not appear on any Verizon correspondence and only on some City of Palo Alto notes, completed forms and City correspondence. Because the alpha -numeric code is missing from many documents, a reviewer of City files cannot be certain as to which proposed project a particular document pertains. 13 Accela Automation: GetPerSET250-T8035-D. 14 City of Palo Alto, Department of Planning and Community Environment, Routing Slip, print date 2/27/14. 15 Receiving and accepting an application does not mean that the project application has been deemed complete by the City. 8 Conclusion: The last date of revision claimed by Verizon on its drawings' Title Sheet, not elsewhere, is the date used in this report to distinguish one set of drawings from another. A City creates a "moving target" when referring to two or more different sets of drawings as the same proposed project. Several different sets of drawings have been submitted to the City of Palo Alto and at least one earlier application was submitted to the City. These include: • February 12, 2014 Verizon Drawings. This set of drawings16 is similar to the Verizon proposed project drawings dated 3/12/14 but there are some significant differences. The principal difference between the two is that the 2/12/14 drawings are for six antennas and the 3/12/14 drawings are for three antennas. • November 9, 2012 Verizon Drawings. This set of drawings17 is of a similar design to the proposed project, with several significant differences. The most significant difference is that this was a six -antenna proposal with two monopoles, but all six antennas were proposed on only one monopole. • August 10, 2010 Verizon by NSA Wireless Application for a Monopine.18 This was a project for nine antennas within the plastic foliage of a fake tree. This proposal was withdrawn by Verizon, after the passage of 31 years. These earlier drawings and application are not discussed in this report. In this report, the 8/19/14 drawings are referred to as the "proposed project's drawings." Those are the drawings under review in this report, even though the current application, Notice to neighbors and Routing Slip to City staff all are based on the earlier drawings that called for a project with six antennas. The current 8/19/14 drawings are for a project with three antennas. Since the notice to neighbors about the project went out, the proposed project design has been changed four times. When a neighbor went to the City offices to see drawings of the project, it depended on which day it was and which set of drawings were made available. 16 Verizon Wireless and NSA Wireless, Inc., drawings for a wireless project dated 8/30/12 through 2/12/14. Kreines & Kreines, Inc. dates a set of drawings by the last Verizon revision date on the Title Sheet. In the case of the proposed project, some of the drawings within the set were revised by Verizon one day later. 17 Verizon Wireless and NSA Wireless, Inc., drawings for a wireless project dated from the last revision on the Title Sheet as 11/9/12. 18 NSA Wireless, Development Review Application to the City of Palo Alto, 2010. Application withdrawn on 2/27/14. 9 Conclusion: Verizon created a moving target and the City of Palo Alto has done nothing to freeze the project description. D. Definition of Terms The City of Palo Alto uses the term "Wireless Communications Facilities (WCF)" in its ordinance on wireless that has been codified in the Palo Alto Municipal Code as Section 18.42.110. A Wireless Communications Facility could be anything that transmits and/or receives wireless signals such as a building contractor's dispatch or police/fire radio. Until recently, it was not considered important by many municipalities - let alone essential - to define the subject of the federal Telecommunications Act of 1996. However, a federal district court in New York has found that the subject of federal legislation is clear, and it is not "Wireless Communications Facilities."19 The court used the term "personal wireless service facilities" and distinguished them from other wireless communications facilities. Instead of the term "wireless communications facilities," Kreines & Kreines, Inc. uses the term personal wireless service facilities because that is the terminology used in the Telecommunications Act of 1996 which defines the following: • Personal wireless services - Personal wireless services are defined in the Federal Telecommunications Act of 1996 as Federal Communications Commission (FCC) licensed commercial mobile radio services (CMRS) including cellular, personal communications services (PCS), specialized mobile radio (SMR), enhanced specialized mobile radio (ESMR), paging as well as unlicensed wireless services, and common carrier wireless exchange access services. • Personal wireless service facility - Facility for the provision of personal wireless services, as defined by Section 704 of the Telecommunications Act of 1996. A personal wireless service facility consists of the following parts: • Mount - A mount is sometimes called a tower; but, in this project, the mount is a monopole. The antennas of a personal wireless service facility could be placed on former light poles, but when light poles are changed out for the purpose of supporting cables and sheltering antennas and other equipment in 19 Clear Wireless LLC v. Building Department of the Village of Lynbrook Board of Trustees of the Village of Lynbrook and Village of Lynbrook (No. 10 -CV -5055 (ADS) (ETB), United States District Court, New York, 3/8/12. 10 a radome shield, they become monopoles. A mount could share space with ball field lights on a monopole or resemble a flag pole, but it is still a monopole and must be treated as part of a personal wireless service facility. • Antennas - The antennas are attached to the mount. In this project the antennas are sheltered by a radome shield. How the proposed project's antennas are attached to anything including the radome shield is unknown. Carriers such as Verizon, particularly in seismically active regions, are very careful to submit designs on how antennas are affixed as part of the CUP review project, not afterwards for the purpose of pulling a building permit. In this proposed project, the antennas could be attached to anything and the radome shield could be attached to anything. • Equipment shelter(s) or cabinet(s) - An enclosed building or vault at the base of the mount within which is housed the equipment for the personal wireless service facility such as batteries and electrical equipment. For this project there are seven components (four power cabinets and three equipment cabinets) proposed to be located inside an equipment building described as a concrete wall enclosing the "lease area." For this project, the building is misrepresented as an "enclosure." The lease area is described as more than a building and including a two -foot strip between the Verizon equipment building and the "relocated containers."20 • Cables - The cables connect the antennas to the equipment shelters or cabinets. In this project, cables are not shown on any application materials. But a "coaxial cable route" suggests that an unspecified number of cables lead from the equipment building (lease area) to the monopole proposed for antennas. The route could be overhead, at grade or underground, but is not specified in the documents reviewed by Kreines & Kreines, Inc. • Lease area - The area within a delineated property or part of a property. The lease area is usually defined in a lease that spells out mutual responsibilities of the lessor (the property owner) and the lessee (the tenant). In the proposed project, the lease area is an equipment building, 442 square feet of sheltered and presumed locked space. Other drawings show the lease area as 510 square feet, including a two -foot strip between the equipment building and the three "relocated containers."21 Who controls the monopoles, cable routes, 20 Verizon Wireless, Elevation View (Title on Sheet is Site Location), A-5, 2/12/14 with revisions through 8/19/14, Verizon Wireless, Elevation View (Title on Sheet is Site Location), A-6, 2/12/14 with revisions through 8/19/14 and Verizon Wireless, Elevation View (Title on Sheet is Site Location), A-7, 2/12/14 with revisions through 8/19/14. 21 ibid. 11 emergency generator pad and the route for power transmission between the emergency generator pad and the "lease area" is not specified, except that PALL would take "title" to the monopole proposed for three antennas.22 E. Verizon Drawings Verizon submitted drawings of the proposed project to the City of Palo Alto on 2/27/14.23 The Verizon drawings were created on 2/12/14, but the drawings were revised on 2/27/14 and again on 3/12/14, the last date on the Title Sheet, although some pages were revised on 3/13/14. A later set of drawings exist dated 8/19/14 for a project with three antennas. It is the drawings dated 8/19/14 that are reviewed in this report. The neighbors were notified of the drawings' availability, and different dates were on the drawings when the neighbors came to view them. Since the announcements were made, Verizon revised its drawings on four subsequent dates: • 2/27/14. • 3/12/14. • 4/2/14. • 8/19/14. By constantly evaluating a "moving target," the neighbors were unable to focus on the latest changes. Kreines & Kreines, Inc. does not know if a Notice of Completion was issued by the City for the most recent drawings. The following sections include problems, errors, inconsistencies and inaccuracies found in the Verizon drawings dated 8/19/14 reviewed by Kreines & Kreines, Inc. 1. Title Sheet (T1) Verizon present the proposed project as a three -antenna project. Kreines & Kreines, Inc. does not think that Verizon builds monopoles for only three antennas in 2014. Verizon can probably not deliver its 3G (not to mention 4G) services from three antennas along with accompanying RRUs and TMAs, all crammed within a 22 Verizon Wireless, Site Plan (Title of Sheet is Site Location), A-1, 2/12/14 with revisions through 8/19/14. 23 City of Palo Alto, Development Review Application, 2/27/14. 12 3 -foot by 5 -foot radome shield. Certainly a signal from this limited facility could serve a small area, but not the coverage shown in the Verizon "Coverage with Meadow Middlefield." Kreines & Kreines, Inc. believes that Verizon is applying to build a monopole that will serve as a platform for the attachment of much more equipment. Once the monopole is approved, the City of Palo Alto will not be able to review further additional growth of personal wireless service facilities or another personal wireless service facility at this Verizon site. Even if Verizon signs a Development Agreement with the City of Palo Alto, that binding contract would not override a Federal Statute called the Job Creation and Middle Class Tax Relief Act of 2012. That Statute would allow Verizon and/or its lessees (other carriers) to put whatever they want on or next to each of the proposed project's monopole without a discretionary permit from the City of Palo Alto. The current T-1 would indicate that Verizon also intends, as part of the proposed project, to upgrade another light pole to monopole standards, even though no antennas are proposed. Once the monopole is built as part of the proposed project, any number of antennas could be added with only a building permit from the City. No requirement for yet another CUP in the future would stop a wireless carrier from merely pulling a building permit and placing more equipment on the project site. Conclusion: Because Verizon and other carriers can all add more equipment as well as co -locations to this site without any discretionary approvals from the City of Palo Alto, this is a growth inducing project that should be reviewed by the City of Palo Alto on the basis of cumulative impacts from a possible antenna farm at the project site. 2. Site Survey (C-1) This drawing is not a survey as indicated by its title (Site Survey). The drawing does not have a licensed surveyor's stamp. It may be a preliminary survey, but a survey stamped by a licensed surveyor should be what is reviewed and approved by the City of Palo Alto. Some problems with this drawing are that: • There is a "Prop. Lessee 10' Wide Access Easement" shown. Site surveys must show what exists on a property, not what is proposed. The easement's turning radii will not accommodate conventional trucks, not to mention flatbed trailers needed to bring in Verizon equipment and operating equipment. • Why wouldn't Verizon use the driveway PALL uses at the northernmost point of the survey? Perhaps it is because this driveway is not owned or controlled 13 by PALL. Further, Kreines & Kreines, Inc. has not seen an encroachment permit, a street permit or an ingress/ egress permit for this driveway. • An "Edge of Pavement" is shown crossing under the "Prop. Lessee 10' Wide Access Easement," resulting in paving and no paving differentials along the "Access Easement." This is unwise for the flatbed trucks bringing in Verizon equipment and operating equipment. • The "Edge of Pavement" connects to the larger square storage building, cut in half, one half with the title "BLD." Is this one-half of a building? Or is it the large square storage building with a line through it? • How can the site plans and elevations of the proposed project's drawings24 show the "BLD" as three containers that have been there all the time? • Is the square storage shed actually three containers? Or will the three containers be relocated and replaced with the square storage shed? Or will the square storage shed be replaced with three containers? Conclusion: The "Site Survey" in C-1 does not show the existing condition of the project site. The one fact that is shown is a driveway used by PALL on land owned by the City of Palo Alto. Varying labels and descriptions cause confusion in the process of review. A survey should not raise questions, it should answer them. 3. Site Survey (C-2) This drawing is an enlargement from the C-1 Site Survey. In this drawing, it is clear that: • The square building is actually two things: - An existing storage building for 1/2 the area. - The other half of the area is labeled "Prop. Lessee Project Lease Area." 24 Verizon Wireless (NSA Wireless, Inc.), Site Survey, C-1, 8/30/12 with revisions through 8/21/14, Verizon Wireless (NSA Wireless, Inc.), Site Survey, C-2, 8/30/12 with revisions through 8/21/14, Verizon Wireless, Elevation View (Title on Sheet is Site Location), A-5, 2/12/14 with revisions through 8/19/14, Verizon Wireless, Elevation View (Title on Sheet is Site Location), A-6, 2/12/14 with revisions through 8/19/14 and Verizon Wireless, Elevation View (Title on Sheet is Site Location), A-7, 2/12/14 with revisions through 8/19/14. 14 • Proposals should have no place in a survey, which should show existing conditions only. • There are proposed easements: - A Lessee 10 -foot wide access easement. - A Lessee 5 -foot wide utility easement. - A Lessee 3 -foot wide coax easement. • Proposals should have no place in a survey, which should show existing conditions only. • Two of the three proposed easements raise "over or under" questions: - Does the alignment proposed for the five-foot wide utility easement cross over or under the existing water/ electric lines shown on the C-2 Site Survey? - Does the proposed three-foot wide coax easement cross over or under the existing "underground line" shown on the C-2 Site Survey? - These are not questions best left to City staff to ask after a CUP is granted. They need to be resolved at the discretionary permit stage. • Most important, does the "underground line" shown on the C-2 Site Survey run under one or both of the exiting storage sheds, and/or does the "underground line" run under the "Proposed Lessee Project Area" or the "Storage Shed to be relocated"? The underground line should be shown from its point of beginning to point of concealment, and from its point of ending to its point of concealment. Finally, the "Field Lights" are shown as 60.3 feet high. Two arrays of these "Field Lights" are shown elsewhere in the drawings as "light poles," and each would be replaced in the proposed project with a monopole. Each proposed monopole (one at 65 feet AGL) would be an expansion of the existing (approved in 2008) CUP. The PALL field has an existing CUP for the installation of four light poles, each to a maximum height of 60 feet.25 The height of "Field Lights" was never approved in the PALL CUP but rather the poles that support them. How can the proposed project for a new CUP be created on a site with an existing CUP that prohibits 25 Palo Alto Little League, Conditional Use Permit, 2008. 15 what the new CUP proposes to approve? The only way to do that would be to amend the 2008 CUP. Conclusion: The C-2 Site Survey is primarily concerned with proposed development, but a Survey is required to show existing development not proposed development. Most of the proposed elements shown in Verizon drawings C-2 have conflicts with existing data. The existing 60.3 -foot high "field lights" establish a surveyed (existing) height of a light pole which exceeds the height limit in the CUP for the PALL field, adopted in 2008. These lights are not the subject of the PALL CUP, and one of the poles is already four inches out of compliance. The actual height of one of the light poles establishes a baseline AGL 4.7 feet beyond which the 65 -foot AGL monopole would extend. Even if the 2008 CUP is not amended, the 60.3 feet AGL light pole must be foreshortened to 60 feet AGL or removed as non- complying. 4. Site Plan (Title of Sheet is Site Location) (A-1) This drawing shows proposals by Verizon, many of which raise concerns and questions: • The square storage building to be relocated in C-2 now becomes: - Three storage containers "to be relocated." - Are the three containers already there, or are they to be moved there to replace the square storage building? Verizon cannot have it both ways. • Next to the three containers (to be relocated, but not shown where) is "Emergency Temporary Generator Parking Area." - There is no vehicle access to this parking area. How would the generator get there? - Why is a generator needed if a fuel cell provides back up power? • The existing "light pole" is shown: - On C-1 and C-2 as 60.3 feet high. 16 The existing "light pole" would be replaced with a monopole at 65 feet AGL. The height of the "Field Lights" is not shown, nor does it matter at what height the field lights are to be placed. - In wireless metrics, it is not the height of the "appurtenances" (e.g., field lights) that is measured, it is the height of the monopole.26 This is an expansion in height of 4.7 feet from the existing height of the light pole to the new 65 -foot height of the monopole. This would require the amendment of the PALL CUP granted in 2008, rather than the proposed entirely new CUP in 2014. • The Enlarged Equipment Site Plan on this drawing shows an arrow pointing to the proposed Verizon equipment building: - The label reads "new 13' x 34' equipment enclosure." - The nearest structures are two small sheds, which are referred to in another note as: "Existing Sheds to be Removed and Relocated (not part of this permit)." These sheds were never approved for the PALL property. Further all other drawings show the sheds will remain.27 For the sheds to remain, the 2008 PALL CUP would need to be amended. - The actual equipment area is a building, with a roof, next to but separate from, the three containers. The two feet between the Verizon equipment building and the containers creates a space within which young people can play but firefighters with their equipment may have difficulty entering. - An expansion of building area by the addition of a new building requires an amendment of the 2008 PALL CUP, rather than an entirely new CUP on 2014 as currently being considered before the ARB. 26 Federal Communications Commission, Form 854, Item 38 states "Enter the height above ground in meters rounded to the nearest tenth, to the highest point of the supporting structure only (WITHOUT appurtenances)" 27 Verizon Wireless, Enlarged Equipment Area (Title on Sheet is Site Location), A-2, 2/12/14 with revisions through 8/19/14, Verizon Wireless, Access and Utility Plan (Title on Sheet is Site Location), A-3, 2/12/14 with revisions through 8/19/14, Verizon Wireless, Elevation View (Title on Sheet is Site Location), A-5, 2/12/14 with revisions through 8/19/14, Verizon Wireless, Elevation View (Title on Sheet is Site Location), A-6, 2/12/14 with revisions through 8/19/14 and Verizon Wireless, Elevation View (Title on Sheet is Site Location), A-7, 2/12/14 with revisions through 8/19/14. 17 Conclusion: The storage buildings to be removed are either a large building shown in Site Survey C-1 or a 1/2 building shown in Site Survey C-2 or they are three containers (to be relocated). Or perhaps the two smaller storage sheds are to be relocated rather than the three containers. How can ARB approve a "design" when it isn't clear what the design is? And where did the "emergency temporary generator" come from? Will it be flown in by an overhead crane? There is no mention of a "parking area" for an emergency temporary generator in the project description. There is a mention of a "generator plug for emergency temporary generator" in the project description. But that plug is proposed 50 feet from the "parking area." How does a power generator 50 feet from the plug transmit power to the plug? 5. Enlarged Equipment Area (Title on Sheet is Site Location) (A-2) This drawing (A-2) is not to be confused with the insert on Enlarged Equipment Area (Title on Sheet is Site Location) (A-1) which is called "Enlarged Equipment Site Plan." And the reason the two drawings (A-1 as opposed to A-2) shouldn't be confused is because they have conflicting information. The following is a discussion of drawing A-2. • The three containers are still shown, but: - They are labeled "Relocated Containers," which means they are proposed for the space shown, having been relocated from somewhere else. But no drawings show where the containers are to be relocated from. - It is not clear what would happen in the two feet between the three containers and the proposed "wireless equipment area," which is a building next to three buildings. Do these narrow spaces meet the separation between buildings regulations in the Palo Alto Municipal Code? Would fire protection personnel be able to access this space? Could children play hide and seek in this space? Might vandals intent on mischief enter this space? How close does another building need to be next to hazardous buildings in order to be considered unsafe in Palo Alto? • And then there is the "Emergency Temporary Generator Parking": - If the three containers remain, the line from the generator to the generator plug shown in the proposed equipment building would travel 50± feet, representing a huge loss of energy. 18 - If the three containers are removed, the distance of the emergency line could be reduced to 40± feet, but the line would be unsecured and subject to flopping around, particularly in emergency conditions (e.g., seismic aftershocks). • And the proposed monopole? Now it's called a Wireless Antenna Location." How does a light pole become a monopole for three antennas and then become a "wireless antenna location"? Labels should not vary from drawing to drawing; labels should be consistent. Names should not mislead the reader. Names should be accurate representations. Conclusion: This drawing conflicts with other drawings, generating confusion and a generator parking pad that has not been discussed by Verizon in any other drawing. 6. Verizon Equipment Layout (Title on Sheet is Site Location) (A-4) This drawing has two parts: • A legend showing all the parts of the "equipment layout." • A plan labeled "Prop. Outdoor Equipment Layout." a. Legend Unfortunately, the legend has nothing to do with the plan. The legend has a series of numbers: • 1 through 29, none of which appear on the plan. • Examples such as number 5, Air Conditioning Unit, are not shown on the plan because there is no air conditioning unit shown. The legend has a series of abbreviations, such as CDPD, which stands for Cellular Digital Packet Data. According to the Emory University web site: Cellular Digital Packet Data (CDPD) is a technique used for transmitting small chunks of data, commonly referred to as packets, over the cellular network in a reliable manner. It allows users to send and receive data from anywhere in the cellular coverage area at any time, quickly and efficiently. CDPD technology provides extensive, high speed (data can be sent over the Airlink at a rate of 19.2 kilobits per second), high capacity, cost effective data services to mobile users. With this technology, both voice and data can be transmitted over existing cellular channels. 19 It is Kreines & Kreines, Inc.'s opinion that CDPD has not been in use by wireless carriers since 2004. What is the purpose of specifying obsolete technology for a new cell site? Kreines & Kreines, Inc. does not understand the purpose of the legend as it does not appear to apply to the proposed project. b. Plan labeled "Prop. Outdoor Equipment Layout" This "equipment layout" isn't outdoors, it is in a building. The plan shows seven pieces of equipment in the building and not outdoors: • Two LTE cabinets (this represents two pieces of equipment). • -48V Plant (batteries inside). • Miscellaneous cabinet. • ReliOn Fuel Cell. • Two ReliOn Hydrogen Storage Tanks (this represents two pieces of equipment). LTE (Long Term Evolution) is an advanced wireless air interface capable of delivering 4G services. In addition to the 700 MHz frequency band, LTE uses other frequencies of broader transmission and reception capability. For this cell site, Verizon uses the Notes in the Plan labeled "Prop. Outdoor Equipment Layout" as follows: • AWS - Advanced Wireless Services. • PCS - Personal Communication Services. • RRHs - Remote Radio Heads (aka Remote Radio Units). The Prop. Outdoor Equipment Layout indicates the antennas will be using at least three frequency bands and will have RRHs near them. Three tri-band (three ranges of frequencies), antennas, along with RRHs and the six TMAs (Tower - Mounted Amplifiers), could not fit within a five-foot tall, three-foot wide radome container, as proposed by Verizon. The Prop. Outdoor Equipment Layout proposes two ReliOn HSM9 Fuel Storage Tanks to store hydrogen. Hydrogen is a potential hazard. Although the 20 "equipment area" is presented as an "enclosure" in the Verizon equipment area,28 the concrete wall building has a metal roof below which are "security metal grill"openings to allow minimal sideways ventilation. Grills (aka grilles) are efficient on automobiles because they allow the passage of air at low as well as high speeds. Fuel tanks for hydrogen need to be either vented mechanically (e.g., exhaust fan) or completely outdoors. A section on fuel cell storage tanks in this report details the hazard risk. Three of the components in A-4 that are described above are given dashed lines to connote "future." "Future" means that Verizon is asking the City of Palo Alto to approve an array of equipment, 42% (3 of the 7 components) of which are not needed at this time. How many more antennas will be supported by this "future" equipment? Where will these future antennas go? If Verizon is going to show future equipment, shouldn't Verizon show the future antennas (not to mention RRUs and TMAs) that the equipment will be needed for? 7. Elevation View (A-5)29 The drawing represents the southern elevation view. This view shows a new "light/ antenna pole" 65 feet high "max" (which means it could be lower but that the monopole is approved to 65 feet in height AGL). Note that drawings Site Survey C-1 and Site Survey C-2 show the existing "field light" pole at 60.3 feet high, which means the proposed project is seeking a 4.7 -foot high increase from the existing "light pole" when it becomes a monopole at 65 feet AGL. The "3 foot diameter by 5 foot long" radome shield scales to 4 feet in diameter by 8 feet long, which means that what is drawn is much larger than what is described. Two arrays of antennas are shown vertically stacked (one on top of the other) as shown in Figure 1. This would be a design representing six antennas (two arrays of three antennas totaling six antennas), which could not fit within a three-foot by five-foot radome shield, not to mention a 4 -foot by eight -foot radome shield. This would make the proposed project a six -antenna project rather than a three - antenna project. 28 Verizon Wireless, Site Plan (Title of Sheet is Site Location), A-1, 2/12/14 with revisions through 8/19/14. 29 Verizon Wireless, Elevation View (Title on Sheet is Site Location), A-5, 2/12/14 with revisions through 8/19/14. 21 REPLACEMENT LIGHT POLE WITH VERIZON WIRELESS ANTENNAS ABOVE LIGHTS PANEL ANTENNAS (3) SECTORS, (1) ANTENNA PER SECTOR WTti (5) 'MA's INSIDE NEW 3 ft NA. X5 ft. LONG RAQOME EXISTING TREES IN BACKGROUND 1// VERIZON WIRELESS EA ---. SEE ENLARGED EQUIPMENT AREA SHEET A—< 15's34' LEASE AREA = 510 SQ.,- EXISTING STORAGE CONTAINERS TO BE— RELOCA -ERE . STAL 5=_CURIt GRILLY '{ S (2) GPS NEW CMU ENCLOSURE, METAL R TO RE LIGHT BROWN TO MATC EXISTING BUILDINGS. TOP OF NEW LIGHT/ANTENNA POLE : 85-o" MAX. Figure 1: The two red arrows show antennas intended to be on arrays vertically stacked (one on top of the other). An equipment building is within the red circle with a shed (slanted) roof and CMU (concrete masonry unit) wall. Identification labels surrounded by ellipses are discussed on the following pages in this report. Source of drawing: Verizon Wireless, Elevation View (Title on Sheet is Site Location), A- 5, 2/12/14 with revisions through 8/19/14. Red arrows, ellipses and circle added by Kreines & Kreines, Inc. 22 A six -antenna project is what was described to the following: • A notice about the proposed project mailed by the City of Palo Alto to the neighbors of the project. • To each person in a City Department listed on a City Routing Slip. These documents represent a conflict: is the project for three antennas or is it a six antenna project. The Project Description on the Site Location (T-1) drawing states "Attach (3) antennas with (6) TMAs to new light pole in stealth radome." A "light pole" could not support three antennas and their cables. It would have to be a monopole of a much larger diameter than shown to hold an unknown number of cables to the antennas, TMAs and RRUs. The easternmost field light pole is designed by Verizon with the same thickness as the monopole with three antennas. But why would it have the same thickness, when the easternmost field light pole has no antennas? Or is it really a monopole with field lights with a "top of pole at 58 feet 10 inches"? A 6 -foot, 2 -inch high radome shield would bring the top of this pole to 65 feet AGL. Which is where Verizon wants it to be. The existing "batting cages" in the Site Survey (C-2) are not shown in this elevation view, implying that the batting cage structure will not be continued in the future. The "batting cage" is shown in the Site Plan (A-1) drawing as part of the proposed project. The "batting cage" is a structure as defined in the Palo Alto Zoning Code: Title 18 Zoning 18.04.030 (134) "Structure" means anything that is constructed or erected, the use of which requires the location on or in the ground or attached to something located on the ground, including but not limited to buildings, swimming pools, tennis courts, but excluding patios, sidewalks, driveways, or parking spaces. The batting cage or batting cages should be shown in all elevations, just as the backstop and fence are shown. As structures in an R-1 interior side yard, the batting cages are encroachments not permitted by the PALL CUP. An amended PALL CUP would need to approve them. The 13 -foot by 34 -foot "Equipment Enclosure" named in the Site Plan (A-1) drawing and described as "New CMU enclosure, metal roof to be light brown to 23 match existing buildings30 is shown in Figure 1 with a roof, slightly slanted, with a top opening of "security metal grills." It is not an "enclosure," it is a building. And the "light brown to match existing buildings" refers to the two small sheds and three containers, all of which are buildings as defined in the Palo Alto Zoning Code. "Building" means any structure used or intended for supporting or sheltering any use or occupancy. Based on the Palo Alto Zoning Code the proposed "equipment enclosure" is a building. This building was not on the PALL field in 2008 and would result in a net increase in buildings and floor area approved in 2008. Many of the identification labels on Figure 1 raise questions: • The Verizon Project Area states: "SEE ENLARGED EQUIPMENT AREA SHEEET A-2 15'X34' LEASE AREA = 510 SQ. FT." • But that contradicts the 442 square foot lease area claimed on three of the project drawings.31 • "Existing Sheds to Remain" contradicts Verizon drawing A-132 which states "Note: Existing sheds to be removed and relocated (not part of this permit)." • "(2) GPS" presumably relate to proposed antennas. Kreines & Kreines, Inc. has not seen any documents about where these GPS antennas are discussed. • "Security Metal Grills" are intended to keep vandals out of the Verizon equipment. But will they provide ventilation for any potential leaking hydrogen gas? • "Existing Storage Containers" are way out of perspective. The southerly corner of the containers should line up two feet from the easterly corner of the 30 Verizon Wireless, Elevation View (Title on Sheet is Site Location), A-5, 2/12/14 with revisions through 8/19/14. 31 Verizon Wireless (NSA Wireless, Inc.), Site Survey, C-2, 8/30/12 with revisions through 8/21/14, Verizon Wireless (NSA Wireless, Inc.), Legal Description, C-3, 8/30/12 with revisions through 8/21/14 and Verizon Wireless, Enlarged Equipment Area (Title on Sheet is Site Location), A-2, 2/12/14 with revisions through 8/19/14. 32 Verizon Wireless, Site Plan (Title of Sheet is Site Location), A-1, 2/12/14 with revisions through 8/19/14. 24 Verizon equipment building, but it doesn't. How can a "design" be approved when it isn't even drawn correctly? • Identification label from Figure 1: "Top of Light - ±56"-6"± AGL" It does not make any different how high the lights are. It is the height of the monopole that is the subject of the proposed CUP. 8. Elevation View (A-6)33 The drawing represents the eastern elevation view. The same comments made for Elevation View (A-5) apply to this drawing. 9. Elevation View (A-7)34 The drawing represents the western elevation view. All comments in Elevation View (A-5) apply here. 10. Overall Conclusions for Drawings The drawings represent a conflicting view of the proposed project and an unclear project description. There is confusion as to what exists on the project site and what does not. For example: • Is the square storage building a 1/2 building called "Storage Containers to be Relocated" with a space next to it which reads:35 "Proposed Lessee Project Lease Area 13'x34' (442 square feet) But how can that be when Elevation View (A-7) claims that the Lease Area is 15' x 34"= 510 square feet? Or is the square storage area actually three containers which are either: • To be relocated in drawing A-1? • Already relocated in drawing A-2? These are important questions, since it is not clear by how many square feet Verizon plans to expand the amount of building on the PALL field. No matter 33 Verizon Wireless, Elevation View (Title on Sheet is Site Location), A-6, 2/12/14 with revisions through 8/19/14. 34 Verizon Wireless, Elevation View (Title on Sheet is Site Location), A-7, 2/12/14 with revisions through 8/19/14. 35 Verizon Wireless (NSA Wireless, Inc.), Site Survey, C-2, 8/30/12 with revisions through 8/21/14. 25 how many square feet of building is to be expanded by Verizon, the PALL CUP will need to be amended. The project description is unclear in the following: • How would Verizon deliver 4G services when their no more than three antennas and their RRHs along with six tower mounted amplifiers won't fit within a three-foot by five-foot radome shield? And, if Verizon disputes this fact, require the applicant to show the antenna/radome shield design to the ARB, the board that approves designs. • How many antennas will there be? How many antennas did Verizon's Radio Frequency Engineer assume when he drew the radio frequency propagation plots for the Meadow Middlefield site? When Mr. Ung (identified as the Facility Operator's Contact Name/Title) filled out the Evaluation of Categorical Exclusion,36 he assumed the bottom of the antennas at 57 feet. The actual bottom of the antennas is specified by Verizon as 60'5" .37 The application38 and the routing slip39 clearly specify six antennas. All Elevation Views40 in the Verizon drawings show two antenna arrays vertically stacked inside the radome shield with three antennas each (2 x 3 = 6). This means the drawings of the proposed project specified only three antennas, but the drawings suggest, and the application as well as routing slip state, there are six antennas. 36 Federal Communications Commission - Local and State Government Advisory Committee (June 2000), A Local Government Guide to Transmitting Antenna RF Emission Safety" Rules, Procedures, and Practical Guidance, Appendix A, Optional Checklist for Local Government To Determine Whether a Facility is Categorically Excluded, Evaluation of Categorical Exclusion. 37 Verizon Wireless, Elevation View (Title on Sheet is Site Location), A-5, 2/12/14 with revisions through 8/19/14, Verizon Wireless, Elevation View (Title on Sheet is Site Location), A-6, 2/12/14 with revisions through 8/19/14 and Verizon Wireless, Elevation View (Title on Sheet is Site Location), A-7, 2/12/14 with revisions through 8/19/14. 38 Verizon Wireless by NSA Wireless, Development Review Application to the City of Palo Alto, 2/27/14. 39 City of Palo Alto, Department of Planning and Community Environment, Routing Slip, print date 2/27/14. 40 Verizon Wireless, Elevation View (Title on Sheet is Site Location), A-5, 2/12/14 with revisions through 8/19/14, Verizon Wireless, Elevation View (Title on Sheet is Site Location), A-6, 2/12/14 with revisions through 8/19/14 and Verizon Wireless, Elevation View (Title on Sheet is Site Location), A-7, 2/12/14 with revisions through 8/19/14. 26 This question is important because while reviewers may repeatedly be told this is a three -antenna project, Verizon can point to written substantial evidence that the proposed project is a six -antenna project. Kreines & Kreines, Inc. provides substantial evidence that there is clearly a conflict in the project description. How can a design be approved when there is a conflict in the project description? There is confusion about the height of the field light poles and the height of the proposed monopoles. Is the monopole shown as described as without proposed antennas, being thickened in diameter and will this be done to eventually hold both antennas and cables? This question is important because there is no reason to change a light pole into a monopole unless Verizon intends to put antennas on top of it, and cables within it, perhaps at a later date. The most important question is: Does Verizon represent the equipment area as an "enclosure" when it is actually a proposed building and does this constitute an expansion of the original PALL field CUP? F. Attractive Nuisance Children and young adults like to play. Children and young adults tend to congregate in places where they are welcome and can find each other. The PALL field is such a place where kids may want to jump on a metal roof or on containers to see what noise they make. What about the stored hydrogen fuel storage tanks? What could happen to the hydrogen with a lit firecracker stuck through the security metal grills, which are just metal bars far enough apart for a firecracker to go through? Could someone get stuck between the Verizon equipment building and the three containers? Whose responsibility is that? Is the two -foot space between the Verizon equipment building in the proposed lease area or not? Conclusion: There is no fence all the way around the proposed buildings, but if Verizon or PALL put one there, kids may try to climb over it. A Little League field is a bad place to put an attractive nuisance. And it is inconsistent with the City of Palo Alto Comprehensive Plan, because it is not compatible with the neighborhood (Policy L-12);41 it will be detrimental and injurious to the PALL property;42 it will be detrimental to the public health, safety and general welfare;43 41 City of Palo Alto Comprehensive Plan. 42 Palo Alto Municipal Code, Title 18, Zoning, Section 18.76.010(c)(1). 43 Ibid. 27 and it cannot be located and conducted in a manner in accordance with the Comprehensive Plan.44 G. Equipment The equipment described in the application, including drawings, is unclear, contradictory and, in one case, possibly hazardous. 1. Antennas On 3/6/14, neighbors within 600 feet received a "Notice of Proposed Development Project" from the City of Palo Alto that reads, in part: Request by Verizon wireless for a minor architectural review board and conditional use permit application for the co -location of 6 panel antennas between two existing light fixtures at the City of Palo Alto Little League Field. Zone District, R-1(8000). The neighbors expressed surprise regarding the "Notice of Proposed Development Project" that the City of Palo Alto was proceeding with a "two - tower" (six antenna) proposal when Verizon seemed willing to proceed with a "one tower" (three antenna) proposal. Nevertheless, the application on file with the City of Palo Alto reads as follows:45 Co -location of 6 Panel Antennas between two existing light structures on the little league field (towers will not be changed in height or location of the approved lights). See Justification Statement for more information. First of all, when a carrier places one of its antennas next to another, it is not co - location. Co -location is two different carriers placing antennas on the same mount. Second, the existing light pole will be changed to a monopole that is higher than the existing light pole. This is not a "height of field lights" proposal, it is a "height of monopole" proposal. Third, the drawings specify, as opposed to show, three -antennas on one monopole, not "6 Panel Antennas between two existing light structures." The Routing Slip46 notifying City of Palo Alto departments of the project has the following description: 44 City of Palo Alto Comprehensive Plan. 45 City of Palo Alto, Development Review Application, 2/27/14. 46 City of Palo Alto, Department of Planning and Community Environment, Routing Slip, print date 2/27/14. 28 Request by Verizon Wireless for a minor architectural review board and conditional use permit application for the co -location of 6 panel antennas between two existing light fixtures at the Palo Alto Little League Field. Zone District. R- 1(8000). This means that all departments in the City of Palo Alto receiving the routing slip reviewed and commented upon a six -antenna project rather than a three -antenna project. In the event that Verizon went ahead and built a six -antenna project, all city departments could say, "Yes, that is the project we reviewed." But the routing slip claims that the project is "co -location between two existing light fixtures" and this is not the proposed project described in the Verizon drawings or other Verizon documents. To demonstrate how a City department could misconstrue the intent of the proposed project, Utilities Engineering received the Routing Slip on 3/6/14 and made their entry into Accela as follows:47 Request by Verizon Wireless for a minor, board level, Architectural Review Board (ARB) review and a Conditional Use Permit (CUP) application for the addition 2 sets of 3 panel antennas (total of 6 antennas) on two existing light poles at the Palo Alto Little League Field. The existing light poles would be replaced with new poles to accommodate the antennas at the top of them with the lighting to be put back in their current location at their current height. Zone District. R-1 (8000) 14PLN-71 RUSS REICH This means that the Utilities Engineering staff will go searching for cables attached to the easternmost "light pole," and such cables won't exist because no antennas are proposed on the second existing light pole, according to the Verizon drawings. Second, how could "2 sets of 3 panel antennas (total of 6 antennas) on two existing light poles" be part of a project where "The existing light poles would be replaced with new poles"? There is no mention that the two "new poles" would be monopoles. Verizon drawings specify, as opposed to show, only three antennas on a new monopole, so a six- antenna proposal is strange for reviewers expecting a three - antenna proposal. The proposed project's three antennas could not do the job proposed by Verizon in its Amended Justification Statement.48 Specifically, the Verizon Amended Justification Statement's claim is: 47 Accela Automation: GetPerSET250-T8035-D. 48 Verizon Wireless, Amended Justification Statement, no date. 29 The facility proposed by Verizon Wireless, Inc. is necessary in order to provide cellular service to this area, including traditional wireless services such as wireless digital telephone service and new service not available under some traditional analog cellular systems, such as wireless internet connections. Verizon Wireless, Inc.'s technology operates at various radio frequency ("RF") bands between approximately 1,800 and 2,000 megahertz. Furthermore, Verizon has been authorized to purchase additional bandwidth at 700 megahertz to assist with data transfer. Further, the Verizon Equipment Layout, A-4,49 states that the proposed project will have "RRHs" or Remote Radio Heads (aka RRUs or remote radio units). RRUs are mounted behind the antenna in Verizon sites, thereby requiring more room in the radome shield. Mounting behind the antenna pushes the distance between the antenna and monopole away from the monopole. Three antennas along with six tower - mounted amplifiers and the RRUs could never fit within a radome cylinder 36 inches (three feet) in diameter. Further, when scaled, the drawings show the radome cylinder to be four feet (48 inches) in diameter.5o Conclusion: Verizon claims it will fit three antennas and associated TMAs and RRUs within a three-foot by five-foot radome shield, but Kreines & Kreines, Inc. does not believe that this is possible. 2. Monopole The Verizon application and drawings use various terms to discuss the thin pole holding ball field lights, including: • 60.3 -foot high field lights.51 • Existing light pole.52 49 Verizon Wireless, Verizon Equipment Layout (Title on Sheet is Site Location), A-4, 2/12/14 with revisions through 8/19/14. ao Verizon Wireless, Enlarged Equipment Area (Title on Sheet is Site Location), A-2, 2/12/14 with revisions through 8/19/14, Verizon Wireless, Elevation View (Title on Sheet is Site Location), A-5, 2/12/14 with revisions through 8/19/14, Verizon Wireless, Elevation View (Title on Sheet is Site Location), A-6, 2/12/14 with revisions through 8/19/14 and Verizon Wireless, Elevation View (Title on Sheet is Site Location), A-7, 2/12/14 with revisions through 8/19/14. 5i Verizon Wireless (NSA Wireless, Inc.), Site Survey, C-1, 8/30/12 with revisions through 8/21/14 and Verizon Wireless (NSA Wireless, Inc.), Site Survey, C-2, 8/30/12 with revisions through 8/21/14. 30 • Proposed antenna pole with lights.53 • Proposed extended light pole.54 The thin nature of the existing light poles is shown in Figure 2. In order to support three antennas, as well as the cables threaded through the monopole to reach the antennas, as well as the six TMAs and RRUs, a much larger (thicker, wider and stronger) structure called a "monopole" will be needed. This is not a "light monopole" (as called in Verizon drawing A-1), an "antenna pole" (as called in Verizon drawing A-2), "new light/ antenna pole" (as called in Verizon drawings A-5, A-6 and A-7), or "wireless antenna location" (as referred to in Verizon drawing A-2). The proposed project would be clearer to citizens and reviewers if Verizon called its wireless equipment what it actually is. An "antenna pole" is a monopole. 52 Verizon Wireless, Site Plan (Title of Sheet is Site Location), A-1, 2/12/14 with revisions through 8/19/14. 53 Verizon Wireless, Access and Utility Plan (Title on Sheet is Site Location), A-3, 2/12/14 with revisions through 8/19/14. 54 Verizon Wireless, Elevation View (Title on Sheet is Site Location), A-5, 2/12/14 with revisions through 8/19/14, Verizon Wireless, Elevation View (Title on Sheet is Site Location), A-6, 2/12/14 with revisions through 8/19/14 and Verizon Wireless, Elevation View (Title on Sheet is Site Location), A-7, 2/12/14 with revisions through 8/19/14 31 Figure 2: Photograph of existing field light pole at PALL Ball Field. This pole is shown against the backdrop of Middlefield Road. The diameter of this pole is inadequate to hold one antenna, let alone three antennas, their RRUs and six TMAs when added to the five field lights. At a minimum, over 20 cables will need to be threaded through the monopole's hollow core. Source of photograph: This photograph is from an AT&T Development Review Application to the City of Palo Alto for the PALL field from 2010. 32 The poles proposed are monopoles: • The monopoles' primary purpose is to support antennas, TMAs, RRUs, cables and wires, not field lights, which are "appurtenances." • The diameter of the monopoles scales to two feet or 24 inches on Verizon drawings A-5, A-6 and A-7. • There are two monopoles shown on Verizon drawings A-5, A-6 and A-7. Conclusion: The City should require Verizon to resubmit its application and drawings to clarify whether antennas are to be located on only one monopole or if antennas will be located on both monopoles. If future antennas are planned by Verizon on any of the monopoles, their sizes and positions must be shown with a dotted line on the drawings. 3. ReliOn Hydrogen Fuel Storage A hydrogen fuel cell has been proposed as part of the project. A fuel cell has environmental benefits, but the components of a hydrogen fuel cell pose risks as well. Hydrogen can explode and hydrogen can burn. It is a gas, not a solid like batteries. Hydrogen is the ingredient that burned on the Hindenburg air ship. One spark and the area around the airship was enveloped in flames, although some experts believe the outer coating of the air ship's skin was primarily responsible. But by making reference to the document called the "ReliOn Fuel Cell Solution Guide to Fuel Cell Permitting," the reviewer can see that the risks and dangers are obvious. The following information in this sub -section is from the ReliOn Guide. One thing the reader finds in the ReliOn Guide is that the ReliOn hydrogen storage cabinet proposed by Verizon for the proposed project is not designed as a sealed gas cabinet as defined by the International Fire Code (IFC) Section 2703.8.6.1 and is intended for outdoor use only. The reader should note that Section 2703.8.6.1 of the IFC deals with construction requirements. Buildings, control areas, enclosures and cabinets for hazardous materials shall be in accordance with Sections 2703.8.1 through 2703.8.6.3. Verizon states that its hydrogen storage cabinet is not designed to meet the following IFC construction standards: Section 2703.8.6.1 Construction. Gas cabinets shall be constructed in accordance with the following: 33 1. Constructed of not less than 0.097 -inch (2.5 mm) (No. 12 gage) steel. 2. Be provided with self -closing limited access ports or noncombustible windows to give access to equipment controls. 3. Be provided with self -closing doors. 4. Gas cabinet interiors shall be treated, coated or constructed of materials that are compatible with the hazardous materials stored. Such treatment, coating or construction shall include the entire interior of the cabinet. ReliOn also states that its cabinets are designed to ensure that a leak of hydrogen gas is vented outside where it is allowed to disperse. Verizon drawings A-5, A-6 and A-7 show a "Prop Verizon Wireless Project Area" which is really a building55 with a small strip of "security metal grills" on it. That small strip of iron bars won't ventilate the equipment building, neither for the hydrogen gas nor for the three strings of batteries next to the fuel ce11.56 Unless outdoor hydrogen storage tanks are open to the sky, and open around each storage tank, the gas will linger, only slowly seeping out the upper side areas as shown by Verizon. And a check of the California Code of Regulations, Title 19, Public Safety, Division 2, Office of Emergency Services, Chapter 4.5, California Accidental Release Prevention (CalARP) Program would find four different sections on "Hydrogen." Further, the Palo Alto Fire Department, Hazardous Materials Program, Hazardous Material Compliance Guide, Cell Sites states: Hazardous Materials Registration Form (HMR) - Required if hazardous material is present. A Hazardous Materials Business Plan (HMBP) is required if the quantify of any hazardous materials is > 55 gallons, > 500 lbs or > 200 cubic feet. For the Palo Alto Fire Department, Certificate of Occupancy Supplement and Hazardous Materials Checklist, Charnel James, a Verizon representative, answered "yes" to the following question for the proposed project: Involve the aggregate quantity of any one chemical in quantities greater than 200 cubic feet, 55 gallons or 500 lbs? 55 The fact that the "Prop Verizon Equipment Area" is really a building is discussed in Chapters E and G of this report. 56 Verizon Wireless, Verizon Equipment Layout (Title on Sheet is Site Location), A-4, 2/12/14 with revisions through 8/19/14, 34 Ms. James goes on to answer "No" on the same form to the following question: Does the operation of this facility involve the use or storage of hazardous materials? The ReliOn document discusses a Hydrogen Storage Module (HSM). This module is refueled with hydrogen by driving a tank truck filled with hydrogen up to the storage tanks. How would such a truck approach the storage tank inside the equipment building? The only way would be by threading a live (active) hydrogen gas flexible pipe from the truck around the equipment to the storage tank. Kreines & Kreines, Inc. does not know if a spark could ignite any fume leaks. The ReliOn document indicates that any leakage of fuel would dissipate and escape into the air around it. That would be true if the proposed equipment "enclosure" were designed to be open to the sky. The Verizon Title Sheet drawing T-157 describes the Verizon equipment area as an "enclosure." But the proposed drawings are for a building, with a roof, not open to the sky and not mechanically vented. The word "enclosure" is misleading. The ReliOn document explains that the hydrogen does not stay near a leak unless the hydrogen is contained by a roof, structure or poorly ventilated area. The Verizon drawings show that the proposed equipment building has a roof and no exhaust fan. The roof is made of metal so that it may be strong enough to support an inside cable ladder or cables running the 34 -foot length above the equipment. By running cables overhead inside the equipment building, Verizon would not be able to thread a flexible hydrogen pipe on top of the equipment. So where else might the cables be moved to once inside the equipment building? Along the 34 -foot side walls? That would interfere with movement between the equipment and the side walls.58 Conclusion: The fuel cell storage tanks (two are proposed) should not be an acceptable choice of backup power supply, particularly when 57 Verizon Wireless, (Title Sheet) Site Location, T-1, 2/12/14 with revisions through 8/19/14. 58 Page 44 of the ReliOn Fuel Ce11 Solution Guide to Fuel Cell Permitting cites the 2009 IFC (International Fire Code) requiring a minimum of five feet between the between the storage tank and any wall. Neither of the proposed tanks in Verizon Wireless, Verizon Equipment Layout (Title on Sheet is Site Location), A-4, 2/12/14 with revisions through 8/19/14 meet this requirement. 35 crowds of people (many of them children) are concentrated 100 feet away in bleachers. Verizon may not have been forthcoming in discussing the potential hazard of the ReliOn storage tanks. H. Planning and Zoning 1. City of Palo Alto Comprehensive Plan The City's general plan is known as the City of Palo Alto Comprehensive Plan. The document establishes on page I-3 that: The Plan establishes the physical boundaries of residential and commercial areas and sets limits where necessary to ensure that business and housing remain compatible. It encourages commercial enterprise, but not at the expense of the City's residential neighborhoods. Borrowing from the landmark lawsuit O'Loane v O'Rourke59 the plan states: The Land Use and Community Design Element provides a "constitution" for the development of public and private property. What this means to this report is that: • The property may have temporary uses. • The property may have conditional uses. • The property may have interim uses. But in the last analysis, the property can have no use that may conflict with or do violence to the underlying Comprehensive Plan designation, which for the proposed project is Single Family Residential.6o Conclusion: No use within Single Family Residential Comprehensive Plan designations should be approved by the City so that the ultimate development of the property will be inhibited or impaired. The PALL field will not be sustainable forever and can be readily removed for a residential subdivision or a mansion. But a cell site s9 O'Loane v O'Rourke (1965) 231 Ca1.App.2d 774. 60 Single Family Residential: Includes one dwelling unit on each lot as well as conditional uses requiring permits such as churches and schools. 36 is a long-term contractual use that cannot co -exist with Single Family Residential on a less than three -acre site. The PALL field is part of a neighborhood. The Land Use and Community Design Element states: Palo Alto City Structure Residential Neighborhoods are areas of the City characterized by housing, parks and public facilities. Their boundaries are based on patterns of land subdivision and public perceptions about where one neighborhood stops and another begins. There are some 35 identifiable Residential Neighborhoods in Palo Alto. Most Residential Neighborhoods have land use classifications of Single Family Residential with some Multiple Family Residential. As a Single Family Residential property zoned R-1, there is no other neighborhood in the area that the PALL field could belong to. That is why the Policy L-12 from the Comprehensive Plan is critical to this report: Preserve the character of residential neighborhoods by encouraging new or remodeled structures to be compatible with the neighborhood and adjacent structures. Conclusion: Does the proposed project involve structures that are compatible with the neighborhood? The monopole with antennas and the monopole without antennas are not compatible with the neighborhood. The proposed equipment building is a hazard and is not compatible with the neighborhood. The proposed project is in violation of the Comprehensive Plan, and no finding can be made that: • The proposed project will further, promote and accomplish the objectives, policies, and programs of the Palo Alto Comprehensive Plan. • The proposed project will be located and conducted in a manner in accord with the Palo Alto Comprehensive Plan and the purposes of this title (Zoning). Policy N-51 of the Natural Environment Element of the Comprehensive Plan states: Minimize exposure to geologic hazards, including slope stability, subsidence, and expansive soils, and to seismic hazards including groundshaking, fault rupture, liquefaction, and landsliding. 37 Kreines & Kreines, Inc. has not seen any documentation of the structural integrity of the monopole. Monopoles typically have caisson foundations that are 1/4 to 1/3 the height of the monopole. But as the next section (Zoning) points out, a prior ARB approval issued in 1974 was for excavation at the site.61 Conclusion: The proposed project does not meet this policy because proposed monopoles set in several feet of excavated earth need seismic stabilization and none is proposed. The Comprehensive Plan speaks to "technologically -advanced communications infrastructure" in Policy B-13: Support the development of technologically -advanced communication infrastructure and other improvements that will facilitate the growth of emerging telecommunication industries. The most advanced form of wireless infrastructure is via "HETNETS" or heterogeneous small cell networks scattered throughout the area. The City may not know about this type of infrastructure but Verizon does. Verizon may not want to take a HETNET approach because it is more expensive, but AT&T has begun this deployment in Professorville. Conclusion: The proposed project does not meet this policy. Kreines & Kreines, Inc. believes that the proposed project is of a planning nature, more than an issue of "aesthetics" or "design." Therefore, the proposed project belongs before the Planning and Transportation Commission in keeping with Policy G-1 of the Governance Element: Delegate appropriate decision -making to the Planning Commission, with an appeal process to the City Council, to simplify and shorten the project review process for certain types of projects. Approval or denial of the proposed project does not belong within the very limited province of the Architectural Review Board (ARB) simply because the ARB deals with minor development projects. Conclusion: The proposed project does not meet this policy. If the decision of the ARB is appealed, the project will come before the Planning and Transportation Commission. 61 City of Palo Alto, 74-ARB-256. 38 The Comprehensive Plan designation of the PALL field is Single Family Residential and is inappropriate for a site where multiple cell sites are possible. Once the proposed project is approved on the project site, it is probable that more cell sites will follow.62 The City could change the designation of the project site in the Comprehensive Plan to match the current use, which is Open Space and defined in the Comprehensive Plan as: Any parcel or area of water or land that is essentially unimproved and devoted to an open space use for the purpose of (1) the preservation of natural resources; (2) the managed production of resources; (3) outdoor recreation; or (4) public health and safety. At the time of approving the PALL field as a conditional use, the city should have changed the underlying Comprehensive Plan designation to: Open Space/Controlled Development: Land having all the characteristics of open space but upon which some development may be allowed. Open space amenities must be retained in these areas. Residential densities range from 0.1 to 1 dwelling unit per acre but may rise to a maximum of 2 units per acre where second units are allowed, and population densities range from 1 to 4 persons per acre. By leaving the land designated as Single Family Residential in the Comprehensive Plan (zoned R-1 in the Zoning Code), the City of Palo Alto created a conflict in the project site's ultimate development. Conclusion: A finding cannot be made that the proposed project is consistent with the City of Palo Alto Comprehensive Plan. 2. Zoning Zoning implements the Comprehensive Plan. The two must be consistent so that when the Zoning Code is amended, consistency with the Comprehensive Plan is mandatory. Even within the two documents, the Zoning Code and the Comprehensive Plan, there must be internal consistency: 62 Clearwire has tried once in its Development Review Application to the City of Palo Alto, 2010. AT&T has tried twice in its Development Review Application to the City of Palo Alto, 2010 only to withdraw. 39 • Amending the Comprehensive Plan requires a review to ensure that the amended portions of the Comprehensive Plan are consistent with those portions not to be amended. • Revising the Zoning Code requires that the revised portions of the Zoning Code will be consistent with those portions not to be revised. That is what comprehensive planning means: we looked at everything and all pieces work together. It is not surprising then, when a CUP is designed, it must be consistent with the Comprehensive Plan before it is valid. Similarly, when the City considers a CUP on a property that has prior (or in this case at least three prior) CUPs, the City should ensure that the new CUP does not create an inconsistency with prior CUPs. Therefore, under zoning, one tool of which is the CUP, the CUP must consider the following: • Does the prior CUP on the property make any allowances, assumptions or conditions that are different than those under consideration for the proposed project? • Could the prior CUP be amended rather than inventing an entirely new CUP so that the prior regulations and the proposed regulations are consistent with each other? • Does the prior CUP still stand as a valid document; is it being followed and was it drafted legally? In the case of the PALL field, the answers to the first two questions is yes. For at least one of the prior CUPs on the PALL field, the answer is "no." The Zoning Code states that: 18.76.010 Conditional Use Permit (CUP) (b)(2) Any expansion in the building size or site area of an existing conditional use shall necessitate the amendment of the conditional use permit. Denial of an application for amendment of a conditional use permit does not constitute a revocation of the original conditional use permit. This means that the City of Palo Alto cannot just approve another CUP for the PALL field and paste it over three existing CUPs. It is a tenet of comprehensive planning and zoning that proposed actions take into account existing policy for the site in question. To merely change one CUP after another by pasting a new set 40 of regulations over another is an example of ad hoc incrementalism (i.e, "it doesn't matter what we said then, this is what we say now.") Actions proposed by the project should not conflict with allowances, assumptions and existing conditions assumed by the previous CUP. But there are actions proposed by the Verizon CUP before the City of Palo Alto today which would necessitate an amendment of the previous CUPs on the project site. 3. Previous Actions on the PALL Site In 1952, the Trustees for the PALL were granted a Use Permit (UP) (there was no term "Conditional Use Permit" at that time). The approval was called Use Permit 2-52, 3630 Middlefield Road. Its purpose was to: construct a baseball diamond, bleachers, lights, dressing rooms and other improvements as shown on the plans hereto attached on property located near the intersection of Middlefield and Charleston road in the City of Palo Alto , State of California ... The UP was granted for one year and was subject to annual renewal. The UP was only renewed once in 1953. PALL's attorney (and member of the Board of Trustees) Frank Crist specified in the application: The only type of structures contemplated are dressing rooms and bleachers. Two of the conditions of the UP were:63 3. There shall be no field lights installed on the property. 4. The sign designating this activity shall be limited to 20 square feet. a. Use Permit 65 -UP -11 On 9/14/65, Louis Fourcroy, Zoning Administrator, granted the Camino Ferreo Model Engineers the UP -65-11 to construct a model train layout building on the PALL property. This building was built and later became the clubhouse for the PALL field. Nothing but the building itself was approved. 63 City of Palo Alto, Use Permit 2-52, 3630 Middlefield Road. 41 b. ARB Approval In 1974, PALL sought ARB approval for a proposed expansion as requested by then PALL Vice President, Jack Kidder (74-ARB-256). The approval was granted as shown in Figure 3, which does not include any storage buildings. 42 cfl )d?iclaty 0N1,1 7Jve Q3TVA C/ry 0,t - P44_0 1p1R o U4 Ec Dlons •4 LTv rya � 41 5i R x \:`q am a N Gs roF Ctry Op sb3srgrchi P4 VE D,RKnuG ALTO A!;CHI i LCrUPAL REVIEW BOARD cep t\00 r r r JUN 26 1974 19 �f�PARTMENT OF PLANNING DEPARTMENT OF PLANSIII�t OF PALO ALTO CITY OF PALO ALTO 6 -l9 -74 - Figure 3: ARB approval of field expansion in 1974. Although it was 40 years ago, if the reader wanted to know the location of the currently proposed monopole with antennas, it is at point of arrow (showing where a then photograph was taken from) within red circle. Red circle added to map by Kreines & Kreines, Inc. Note: No storage buildings were shown. 43 c. Violations In 1980, PALL was cited by the City of Palo Alto for exceeding the amount of space used for signage.64 Part of the reason was the exceedance of the 1952 Use Permit. In addition, Fred Herman, then Chief Building Official, found that in 1976 ARB approved a limited sign program for the PALL field. PALL exceeded that approval and in 1980 was ordered by Mr. Herman to remove signs.65 Conclusion: Past approvals have been used for subsequent City of Palo Alto actions, specifically: • When further excavation appeared consistent with ARB's intent, a building permit was issued. • When unapproved sign expansions exceeded both UP and ARB limits, violations were found and enforced by the City of Palo Alto. d. PALL CUP In 2008, Owen Byrd applied for a proposed project under a CUP.66 His request was that: The Project proposed installation of four (4) light post fixtures surrounding the existing baseball field. Each light post will be 60 feet tall. No mention was made of the height of the field lights, only "each light post" to be 60 feet tall. In the Environmental Assessment Worksheet,67 Owen Byrd described the number of structures as "1." The current use of that structure was noted as "Clubhouse." The PALL CUP was granted on 5/8/08 under nine conditions, three of which were:68 64 Little League Baseball of Palo Alto, Inc. Letter to City of Palo Alto from Fred Herman, 3/26/80. 65 City of Palo Alto, Department of Inspection Services, Letter to Palo Alto Little League, 3/18/80. 66 Palo Alto Little League, Conditional Use Permit, 2008. 67 City of Palo Alto, Environmental Assessment Worksheet, 1/29/08. 68 Palo Alto Little League, Conditional Use Permit, 2008 44 The proposed recreational use shall operate in substantial conformance with the project description received January 29, 2008, and clarifying letter received March 31, 2008, on file with the City in planning application no. 08PLN-00024. The proposed lighting shall be on only when needed for a night game. Night games shall be allowed only twice a week, and will go no later than 9:00 p.m., except once every other year for the regional all-star tournament in July, when games would be allowed until 10:00 p.m. The proposed project shall comply with the City's Noise Ordinance. Some neighbors of the PALL field contend that these conditions are not being followed. Any proposed amendment of the PALL CUP must consider the neighbors' objections. e. Amending the PALL CUP PALL authorized Verizon69 to seek a new CUP on what appears to be the same property as approved with the PALL CUP in 2008. These are the actions: • Action A - PALL authorizes Verizon to seek to expand two existing light poles which were granted a CUP and variance approval on 5/8/08. • Action B - PALL authorizes Verizon to seek to expand the number and square feet of building from a clubhouse and a square -shaped storage building to a clubhouse, three containers, two small sheds and an equipment building for Verizon. • Action C - PALL authorizes Verizon to seek to ask the City of Palo Alto to approve the driveway off of the project site as a legal entrance to the PALL field. Kreines & Kreines, Inc. does not know if the driveway has been shown before and it is not known if the City knows the driveway is outside of PALL's ownership and control. Verizon s drawing C-1 shows that the driveway was withheld by the City for possible use by the utility sub -station and/or the Palo Alto Fire Department. Kreines & Kreines, Inc. does not know if there is encroachment permit, or a street work permit or an ingress/egress permit on file for this driveway. The driveway that PALL uses is on City of Palo Alto property and is not on the project site and never has been. 69 Letter of Authorization, signed by Mark A. Priestley, Property Owner, 5/28/10. 45 Action A results from changing out the size of two existing light poles approved in May 2008 at 60 AGL (elevation or Above Ground Level). The westernmost pole was actually built out to 60.3 AGL,70 or four inches higher than allowed. That constitutes a violation of the 2008 CUP that should be addressed in the amendment of the PALL CUP. That same pole is proposed to be expanded to a monopole at 65 feet AGL,71 or an increase of five feet above the approved height. No mention of the "height of field lights" of their replacement at their original height was made a part of the 2008 PALL CUP. It is the heights of the poles, not the lights, that are at issue in the proposed project. Conclusion: The PALL field CUP of 2008 should be amended by the City of Palo Alto to reflect the actual light pole height of 60.3 feet AGL. Verizon now seeks to expand the height to 65 feet. Action B would expand the two buildings, approved in the PALL CUP of 2008, to the five buildings on the proposed project's drawings:72 7° Verizon Wireless (NSA Wireless, Inc.), Site Survey, C-2, 8/30/12 with revisions through 8/21/14. 71 Verizon Wireless, Elevation View (Title on Sheet is Site Location), A-5, 2/12/14 with revisions through 8/19/14, Verizon Wireless, Elevation View (Title on Sheet is Site Location), A-6, 2/12/14 with revisions through 8/19/14 and Verizon Wireless, Elevation View (Title on Sheet is Site Location), A-7, 2/12/14 with revisions through 8/19/14. 72 Verizon Wireless, Site Plan (Title of Sheet is Site Location), A-1, 2/12/14 with revisions through 8/19/14. 46 SITE LOCATION Figure 4 is from the PALL CUP and shows the clubhouse and the square storage building, which were approved as part of the PALL CUP in 2008. � , , ./ r , V / � , / `.` / ) / / ' ,/ , '. / i �. i / ‘,..,,/ . % ,' ' `, `s, i i i � 5/ / i/ "K • 2, Figure 4: The site of the PALL CUP approved in 2008. The two buildings are: A — Clubhouse B — Square storage building Note that no driveways serving the PALL field are shown. This is because one driveway, part of City of Palo Alto property, is not on the project site and never has been. Source of drawing: Palo Alto Little League, Conditional Use Permit, 2008. Red letters "A" and "B" added by Kreines & Kreines, Inc. 47 Figure 5 shows the site from the proposed project drawings. There are five buildings shown, assuming that the three containers are joined as one building. APT is 06-012 arms- an, OF PALO ALT0 VFMEN arr t 0RERGEVC7 rE R10R0 AREA T 5809*0E AN ,$ D Sc REi004100 yY. 000502. N N 77 N\�\ 77 77 ` \ N \� 3' \ \ An 92.-06-0,2 0100M 0)6722 LEA0L'F BASEBALL or FALO ALTO WC'. 11, — ER110M 61RLLEr! 2W,602,• AVER. E.OSTRIG <' 00010 E �ai*0*40 00 *0 AREA.� ARE VEPLACE 784004* 0400507.E 6478 000 A5RO:OR 0RELEES L740W0R0PC.E 02(00ARGEO EWI5YEX1 VIE P,A11 ,4V C,CrT MAX 0 0905 RN l* LG5OtE R10M UG:iS m CE TRAR9!' LVPJ1 Ic LITRE IFAGUE M PALO - A TO. WC 1175 G 040045 AR ; 6,'PLT 0210 APP. 192.-06-020 -:00SP_S CITY Of PALO ALTO • ; \_ y: %J I/ ( / 7 _s- _ 0 / • q / e / / / / s APA O➢NLPS 0.^R' OP PAO: x0,41 Figure 5: The proposed project according to Verizon Wireless (NSA Wireless, Inc.), Site Survey, C-1, 8/30/12 with revisions through 8/21/14. The following buildings are proposed: A — Existing clubhouse B — Three containers replacing Square Storage building. C — Proposed Verizon Equipment building. D — One of two small storage sheds. E — One of two small storage sheds. Note: the red letters "A," "B," "C," "D" and "E" added by Kreines & Kreines, Inc. 48 Conclusion: An expansion in the number of buildings and their total square footage is proposed. The original PALL CUP should be amended to include all five buildings in Verizori s Site Plan. Action C would ask the City of Palo Alto to approve the driveway off of the project site as a legal entrance to the PALL field: • Kreines & Kreines, Inc. has not seen any documents prior to the Verizon drawing73 that show the driveway and it is not known if City representatives know it is not owned by the PALL. • Figure 6 clearly shows that the driveway was held by the City of Palo Alto for possible use by the utility sub -station and/or the Palo Alto Fire Department. • Based on documents reviewed by Kreines & Kreines, Inc., there is no encroachment permit, street work permit or ingress/ egress permit on file for this driveway and, without such a permit would be an illegal point of ingress and egress. 73 Verizon Wireless (NSA Wireless, Inc.), Site Survey, C-1, 8/30/12 with revisions through 8/21/14. 49 FS APN 132-0&- 012 OWNER- CITY OF PALO ALTO q PROC., atxt APN: 132-O6-029 OWNERS L':TY OF PAW 41 To APN 132-00-013 OWNER LITTLE LEAGUE LASYEALI. OP PALO 4LTO INC. •' r(3.1 r r,D 'EE ENLARGED SITE PLAN .,N SHEET C-: N N N APN, 132-00-029 OWNERS CITY OP PALO ALTO Figure 6: The Verizon Survey shows a driveway that has been used by PALL, but Kreines & Kreines, Inc. has not seen any documents indicating that PALL has a legal permit or right of ownership of the driveway. FS — Approximate location fire station. SS — Approximate location of sub -station. Source of drawing: Verizon Wireless (NSA Wireless, Inc.), Site Survey, C-1, 8/30/12 with revisions through 8/21/14. Red circle and letters added by Kreines & Kreines, Inc. 50 The PALL CUP does not discuss that the PALL driveway is outside the PALL's ownership. The City of Palo Alto is the owner of the land that the drawing is on, and only an encroachment permit issued to the City of Palo Alto would permit the driveway. Following the encroachment permit, PALL would have had to have a streetwork permit to construct the driveway. And, following that, PALL would need an ingress/egress permit to use the driveway. Following that, there must be a legal instrument (e.g., easement or covenant) by which the City of Palo Alto allows PALL to use the driveway. Conclusion: The PALL CUP of 2008 should be amended to show the correct ownership of property used by the PALL field in order to gain ingress from/egress to Middlefield Road. The new CUP that is the subject of this report must include the following: • Use of the City of Palo Alto for legal access, either by easement, covenant or some other agreement. • Encroachment permit, streetwork permit and ingress/egress permit allowing PALL to use one of two driveways, because the northernmost driveway is totally on City of Palo Alto property. • Permission to erect and use a batting cage within eight feet of an interior side yard. • Requirement that all lessee (Verizon) access "use easements" demonstrate that dimensions meet the widths, turning clearances and turning radii of the flatbed trucks and operating equipment used to bring Wireless Communications Facilities equipment to the Verizon equipment building and monopole locations. (The Verizon proposal shown on the drawings74 cannot do this.) Since this is a design review proposal, the requirements must be shown in plans and vehicle specifications. • Permission by the City of Palo Alto to construct and/or to use each building, including "containers." Each building, as well as the spaces between them shall be determined to meet City of Palo Alto Building Code. • Permission to establish a Wireless Communications Facility, provided all requirements for planning (including the City of Palo Alto Comprehensive Plan), zoning (see following sub -section) and accurate drawings are met. 74 Verizon Wireless (NSA Wireless, Inc.), Site Survey, C-1, 8/30/12 with revisions through 8/21/14 and Verizon Wireless, Site Plan (Title of Sheet is Site Location), A-1, 2/12/14 with revisions through 8/19/14. 51 It should be noted that a CUP (even though it is duly adopted and beyond its statute of limitations for challenges), cannot be amended unless the original CUP is brought into compliance with all regulations. 4. Other Zoning Matters Title 18 of the City of Palo Alto Municipal Code deals with zoning and has as one of its purposes: 18.01.020 Purposes The purposes of this title shall be to promote and protect the public health, safety, peace, morals, comfort, convenience, and general welfare, including the following more particularly specified purposes: (a) To further, promote, and accomplish the objectives, policies, and programs of the Palo Alto Comprehensive Plan; (b) To lessen congestion and assure convenience of access; to secure safety from fire, flood, and other dangers; to provide for adequate public health, sanitation, and general welfare; to facilitate the creation of a convenient, attractive and harmonious community; The proposed project would rely on access from another property. Kreines & Kreines, Inc. does not know if permission for access has been given by the City to the PALL. This does not mean "assure convenience of access." The proposed project may also create a fire hazard, does not provide for the neighborhood's general welfare and does create an unattractive and disharmonious community. As discussed in the preceding sub -section, the proposed project does not "accomplish the objectives, policies and programs of the Palo Alto Comprehensive Plan" Section 18.04.030 (134) defines structure: "Structure" means anything that is constructed or erected, the use of which requires the location on or in the ground or attached to something located on the ground, including but not limited to buildings, swimming pools, tennis courts, but excluding patios, sidewalks, driveways, or parking spaces. While the PALL clubhouse, large storage shed (aka "three containers") and two smaller storage sheds are definitely buildings, the bleachers, batting cage and existing light poles may be structures. Creating a Verizon equipment building and monopole is equivalent to creating two buildings, because they support and shelter the use of wireless communications facility equipment. Section 18.04.030 (22) defines "building" as follows: 52 "Building" means any structure used or intended for supporting or sheltering any use or occupancy. Section 18.70.080 on Noncomplying facility - Enlargement states: (a) Except as specifically permitted by subsections (b) and (c) hereof or by Section 18.12.050(a), no enlargement, expansion, or other addition or improvement to a noncomplying facility shall be permitted which increases the noncompliance. This section shall not be construed to prohibit enlargement or improvement of a facility, otherwise permitted by this title, which does not affect the particular degree of or manner in which the facility does not comply with one or more provisions of this title. The two small storage sheds, which were not part of the PALL CUP, which were created out of compliance with the PALL CUP, should be removed or made part of an amended PALL CUP. Conclusion: As of 2014, the PALL field does not comply with its own CUP. The proposed project violates other sections of the City of Palo Alto Municipal Code, e.g.: Section 16.04.310, section 3404.7 - Suspended ceiling systems. Suspended ceiling systems. In existing buildings or structures, when a permit is issued for alterations or repairs, the existing suspended ceiling system within the area of the alterations or repairs shall comply with ASCE 7-10 Section 13.5.6. The weight of the cables suspended from the inside of the Verizon equipment building may not be able to be supported by a 13 -foot by 34 -foot metal roof. 5003.9.8 Separation of Incompatible Materials. Incompatible materials in storage and storage of materials that are incompatible with materials in use shall be separated. When the stored materials are in containers having a capacity of more than 5 pounds (2 kg) or 0.5 gallon (2 L), separation shall be accomplished by: 1. Segregating incompatible materials in storage by a distance of not less than 20 feet (6096 mm) and in an independent containment system. 2. Isolating incompatible materials in storage by a noncombustible partition extending not less than 18 inches (457 mm) above and to the sides of the stored material. 3. Storing liquid and solid materials in hazardous material storage cabinets. 53 4. Storing compressed gases in gas cabinets or exhausted enclosures in accordance with Sections 5003.8.5 and 5003.8.6. Materials that are incompatible shall not be stored within the same cabinet or exhausted enclosure. All four steps are additive, not individually sufficient to meet the Code. The Verizon equipment building does not propose to: • Segregate batteries in a Charles Industries cabinet 20 feet from the hydrogen fuel storage tank. • Isolate the ignition materials (batteries) from the hydrogen fuel storage tanks by a partition. The ReliOn standards for hydrogen fuel storage placement are not met. Section 18.76.010 (c) requires that the following Findings be made upon granting a CUP: c) Findings Neither the director, nor the city council on appeal, shall grant a conditional use permit, unless it is found that the granting of the application will: (1) Not be detrimental or injurious to property or improvements in the vicinity, and will not be detrimental to the public health, safety, general welfare, or convenience; (2) Be located and conducted in a manner in accord with the Palo Alto Comprehensive Plan and the purposes of this title (Zoning). In the preceding sub -section of this report, the location and accord with the City of Palo Alto Comprehensive Plan by the proposed project are discussed. In brief, the location of the proposed wireless communications facility will prohibit the ultimate development of any Single Family Residence on the project site. The conduct of a wireless communications facility would be in conflict with the neighborhood, safety and geologic policies of the Comprehensive Plan. The proposed hydrogen fuel storage facilities (two are proposed) pose a fire and explosion hazard and cannot be found to be safe. Conclusion: The required findings cannot be made. Section 18.77.110 of the Zoning Code allows the Director of Planning to issue a Notice of Noncompliance to any landowner for failure to comply with a duly 54 adopted CUP. PALL should be notified by the City that it has not lived up to the following conditions of the 2008 CUP:75 • Of the four light poles approved, at least one has been built above the 60 -foot height limit. A licensed surveyor should be retained by the PALL to determine the existing height AGL of all four poles. Poles exceeding 60 feet in height should be shortened or removed. • There are two small storage sheds on the PALL field that were not approved as part of the PALL CUP. The two sheds should be removed. If the three containers are different from the square storage shed, then they must also be removed. • Access to the PALL field occurs at the driveway to the north of, and outside of, PALL property. All delivery, driving and other ball field -related circulation activities outside of the PALL property for the purpose of ingress to, or egress from, the PALL property should cease. The above problems could be avoided by amending the PALL CUP to allow all existing non -complying development and activities, except for the proposed project. The proposed project could not be amended to the 2008 PALL CUP without first amending the Palo Alto Comprehensive Plan and then revising the Palo Alto Zoning Code. I. Recommendations The Verizon project represents a project riddled with inaccuracies, errors and inconsistencies that cannot be used as substantial evidence. Without substantial evidence, findings cannot be made to support the following: 18.76.010 Conditional Use Permit (CUP) (a) Purpose The purpose of a conditional use permit is to provide for uses and accessory uses that are necessary or desirable for the development of the community or region but cannot readily be classified as permitted uses in individual districts by reason of uniqueness of size, scope, or possible effect on public facilities or surrounding uses. (b) Applicability 75 Palo Alto Little League, Conditional Use Permit, 2008. 55 (1) A conditional use permit may be granted for any use or purpose for which such permit is required or permitted by the provisions of this title; or (2) Any expansion in the building size or site area of an existing conditional use shall necessitate the amendment of the conditional use permit. Denial of an application for amendment of a conditional use permit does not constitute a revocation of the original conditional use permit. (3) No application for a conditional use permit is necessary for existing uses which were lawful conforming permitted uses and which were rendered conditional by reason of rezoning or changes to this title, provided that any expansion in the building site or site area of such a use shall be subject to the issuance of a conditional use permit. (c) Findings Neither the director, nor the city council on appeal, shall grant a conditional use permit, unless it is found that the granting of the application will: (1) Not be detrimental or injurious to property or improvements in the vicinity, and will not be detrimental to the public health, safety, general welfare, or convenience; (2) Be located and conducted in a manner in accord with the Palo Alto Comprehensive Plan and the purposes of this title (Zoning). (d) Conditions In granting conditional use permits, reasonable conditions or restrictions may be imposed if appropriate or necessary to protect the public health, safety, general welfare, or convenience, to secure the purposes of this title, and to assure operation of the use in a manner compatible with existing and potential uses on adjoining properties and in the general vicinity. Nor can conditions be drafted that would render the proposed project both located and conducted in a manner in accord with the City of Palo Alto Comprehensive Plan. The proposed project must be denied, with prejudice, so that continuous re - applications are not made for the same location and the same use in conflict with the City of Palo Alto Comprehensive Plan. 56 Appendix A: Kreines & Kreines, Inc. Qualifications The following is a list of some of our telecommunication projects. Preparation of Wireless Master Plans & Other Wireless Planning Documents • Wireless Guidance Package, City of Detroit, Michigan. • Wireless Guidance Package, Mid -America Regional Council (MARC), Kansas City, Missouri (a regional agency composed of 114 cities and 8 counties). • Wireless Master Plan, Alachua County, Florida. • Wireless Master Plan, City of Anna Maria, Florida. • Wireless Master Plan, City of Brentwood, Tennessee. • Wireless Master Plan, City of Compton, California. • Wireless Master Plan, City of Irving, Texas. • Wireless Master Plan, City of Lakeland, Florida. • Wireless Master Plan, City of Wichita/Sedgwick County, Kansas. • Wireless Master Plan, Pasco County, Florida. • Wireless Master Plan, Town of East Hampton, New York. • Wireless Master Plan, Town of Smithtown, New York. • Wireless Planning Report, City of Bothell, Washington. • Wireless Planning Reports, City of Cupertino, California. • Wireless Policy, Village of Morton, Illinois. • Wireless Strategy, Village of Winnetka, Illinois. • Wireless Telecommunications Facility Business Plan, City of Fridley, Minnesota. • Wireless Telecommunications Policy, Albemarle County, Virginia. • Draft Wireless Master Plan, City of Medina, Washington. • Comprehensive Study of Suitable Sites for Personal Wireless Service Facilities, Town of Durham, New Hampshire. • Guidelines for Review & Approval of Antenna Arrays on Monopoles, City of Scottsdale, Arizona. • Siting Criteria, Cape Cod Commission, Massachusetts (a regional agency composed of 15 towns). • Siting Criteria, City of Gloucester, Massachusetts. Preparation & Review of Telecommunications Ordinances • Alachua County, Florida. • City of Altamonte Springs, Florida. • City of Bothell, Washington. • City of Clayton, Ohio. • City of Compton, California. 57 • City of Gloucester, Massachusetts. • City of Grand Junction, Colorado. • City of Houston, Texas. • City of Kissimmee, Florida. • City of Los Altos, California. • City of Ocoee, Florida. • City of Pacifica, California. • City of Paradise Valley, Arizona. • City of Puyallup, Washington. • City of Shoreline, Washington. • City of West University Place, Texas. • Fauquier County, Virginia (for the Piedmont Environmental Council). • Forsyth County, Georgia. • James City/ County, York County and the City of Williamsburg, Virginia (in association with an engineering firm). • Johnson County, Kansas. • Lee County, Florida. • Mesa County, Colorado. • Model Bylaw (Ordinance) Cape Cod Commission, Massachusetts (a regional agency composed of 15 towns). • Pasco County, Florida. • San Juan County, Washington. • Santa Barbara County, California. • Town of Durham, New Hampshire. • Town of Smithtown, New York. • Village of Hempstead, New York. • Village of Waite Hill, Ohio. Expert Witness & Planning Advisor to Attorneys • For the County of San Diego, California in Sprint Telephony PCS, L.P. and Pacific Bell Wireless, LLC, (dba Cingular Wireless) v. County of San Diego. • For the Town of Durham, New Hampshire in Sprint Spectrum v. Town of Durham. • For the Town of Sturbridge, Massachusetts in Sprint Spectrum v. Town of Sturbridge (as experts to insurance company attorneys). • For the Town of Reading, Massachusetts in Sprint Spectrum v. Town of Reading (as experts to insurance company attorneys). • For the Town of Douglas, Massachusetts in Bell Atlantic v. Town of Douglas (as experts to insurance company attorneys). 58 • For the Village of Ridgewood, New Jersey in Sprint Spectrum v. Village of Ridgewood. Preparation of Telecommunication Facilities Applications, Review of Telecommunications Facilities Applications & Alternatives Analysis • Preparation of application for a co -located personal wireless service facility on a water tank for the Town of Durham, New Hampshire. • Review of AirTouch Application for the City of Scottsdale, Arizona. • Review of CellNet AMR system to be deployed by Puget Sound Energy, a public utility, for the City of Puyallup, Washington. • Review of Cellular & PCS Applications for the City of Medina, Washington. • Review of Cellular One Application for the Village of Oak Brook, Illinois. • Review of Cingular Application for Putnam County, Indiana. • Review of Cingular Application for the City of Clayton, Ohio. • Review of ESMR Cell Site for Johnson County, Kansas. • Review of Orange County, California 800 MHz trunked public safety system. City of Cerritos, California. • Review of Ram Mobile Data Cell Site for the Wheaton Park District, Illinois. • Review of US Cellular Application for the Town of Dublin, New Hampshire. • Review of US West New Vector application for the City of Lacey, Washington. Workshops & Training for Cities, Counties, State Agencies & Regional Agencies on Planning for Telecommunications • Alachua County, Florida. • Albemarle County, Virginia. • Appalachian Trail Conference (an organization responsible for management and protection of the Appalachian Trail, extending 2,100 miles from Maine to Georgia). • Cape Cod Commission, Massachusetts (a regional agency composed of 15 towns). • City of Anna Maria, Florida. • City of Astoria, Oregon. • City of Bayonne, New Jersey. • City of Bellevue, Washington. • City of Bothell, Washington. • City of Brentwood, Tennessee. • City of Compton, California. • City of Daly City, California. • City of Dana Point, California. • City of Detroit, Michigan. • City of Gloucester, Massachusetts. 59 • City of Houston, Texas. • City of Irving, Texas. • City of Lake Forest, California. • City of Lakeland, Florida. • City of Pacifica, California. • City of Paradise Valley, Arizona. • City of Port Townsend, Washington. • City of Sisters, Oregon. • City of West University Place, Texas. • City of Wichita/Sedgwick County, Kansas. • Forsyth County, Georgia. • Hernando County, Florida • Indian River County, Florida. • James City/ County, York County and the City of Williamsburg, Virginia. • King County, Washington. • Lake County Council of Governments, Painesville, Ohio (a regional agency composed of 11 jurisdictions). • Lee County, Florida. • Miami Valley Cable Council (a regional agency composed of 9 cities and 16 affiliates). • Mid -America Regional Council (MARC), Kansas City, Missouri (a regional agency composed of 114 cities and 8 counties). • Newton County, Georgia. • Northeast Florida Regional Planning Council (a regional agency composed of 7 counties and numerous cities). • Pasco County, Florida. • Pennsylvania Planning Association. • Piedmont Environmental Council, Virginia. • San Juan County, Washington. • State of New Hampshire, Office of State Planning. • Tompkins County, New York. • Town of East Hampton, New York. • Town of Smithtown, New York. • Town of Weston, Massachusetts. • Village of Hempstead. Environmental Review of Personal Wireless Service Facilities • Town of East Hampton, New York. 60 Review of Personal Wireless Service Facility Leases • Puyallup Water District, Washington. • Prince William County Services Authority, Virginia. • City of Spokane, Washington. • Town of East Hampton, New York. Franchising & Revenue Potential from Telecommunications • Alachua County, Florida. • City of Compton, California. • City of Ocoee, Florida. • City of Puyallup, Washington. • Forsyth County, Georgia. • Oregon Department of Forestry, Oregon. • Town of East Hampton, New York. Wireless Facilities Audit • City of Spokane, Washington. Speaker/Moderator on Telecommunications Planning at Major Conferences • Virginia Local Government Attorneys. • National PCIA, Site Owners and Managers Association conference in San Antonio in San Antonio. • National CTIA (Cellular Telecommunications Industry Association) conference in Atlanta. • NATOA (National Association of Telecommunications Officials and Administrators) conferences in St. Louis and Tacoma. • TATOA (Texas Association of Telecommunications Officials and Administrators) conference in San Antonio. • State of New Hampshire Planning and Zoning Conference. • "Wireless Buildout" conferences in San Diego, Chicago, Colorado Springs, San Antonio and San Francisco. • North Central Texas Council of Governments (NCTCOG) in Dallas. • CTIA (Cellular Telecommunications Industry Association) conference in New Orleans. Telecommuting Studies • Telecommuting Study, San Diego Association of Governments (SANDAG), San Diego County, California. 61 Other Telecommunications Projects • Publisher of PlanWireless (formerly Wireless Update), a monthly newsletter sent free to thousands of cities and counties throughout the United States on telecommunications planning. Articles on Telecommunications Planning for National or Statewide Publications Kreines & Kreines, Inc. has provided articles on wireless planning for magazines published by the following organizations: • New York State Association of Towns. • League of Oregon Cities. • Missouri Municipal League. • West Virginia Municipal League. • Kansas Municipal League. • American Planning Association. • International City/ County Managers Association. Awards for Telecommunications Projects • Alachua County Wireless Master Plan - Merit Award from the Florida Planning and Zoning Association. • City of Lakeland Wireless Master Plan - Award for Excellence from the Florida American Planning Association. • Cape Cod Commission Siting Criteria and Model Bylaw (Ordinance) - nominated for an American Planning Association award at the national level and an American Planning Association award from the State of Massachusetts. 62 Ted Kreines, AICP President Academic Background Memberships/ Registrations Experience Teaching Experience Master of Arts, Communications, Annenberg School, University of Pennsylvania. Master of City Planning, University of Pennsylvania. Bachelor of Science in City Planning (Honors), University of Illinois. American Institute of Certified Planners. American Planning Association. Former Member of the California Association for Local Economic Development. Former Registered Environmental Assessor, California EPA. Past Director of the Northern Section of the American Institute of Planners. Past Vice President of the California Planning Roundtable. Past Member of the Town of Tiburon Board of Adjustments and Review. Past Director of the Tiburon Hills Homeowners Association. President, Kreines & Kreines Inc., Environmental & Telecommunications Planning Consultants, 1980 to present. Principal, Ted Kreines, Environmental & Planning Consultant, 1974-80. Senior Associate, EDAW, Inc., Environmental & Planning Consultants, 1973-74. Director of Development, Newfields New Community, Ohio, 1972-73. The Rouse Company, Hartford, Connecticut, 1970-72. Candeub, Flessig and Associates, Planning Consultants, 1966- 70. Peace Corps Volunteer, Tunisia, 1964-65. Strategic Planning Course, University of California, Davis Extension Program. 63 Land Use Planning lecturer, County Counsels' Association, Land Use Section. Urban and Regional Planning lecturer, University of California, Berkeley. Urban and Regional Planning lecturer, San Jose State University. Expert Witness & Planning Advisor to Attorneys For the County of San Diego, California in Sprint Telephony PCS, L.P. and Pacific Bell Wireless, LLC, (dba Cingular Wireless) v. County of San Diego. For the Town of Durham, New Hampshire in Sprint Spectrum v. Town of Durham. For the Town of Sturbridge, Massachusetts in Sprint Spectrum v. Town of Sturbridge (as experts to insurance company attorneys). For the Town of Reading, Massachusetts in Sprint Spectrum v. Town of Reading (as experts to insurance company attorneys). For the Town of Douglas, Massachusetts in Bell Atlantic v. Town of Douglas (as experts to insurance company attorneys). For the Village of Ridgewood, New Jersey in Sprint Spectrum v. Village of Ridgewood. Advisor to attorney for Harbin Hot Springs Resort in opposition to U.S. Cellular proposed monopine in Lake County, California. Review of Growth Control Ordinance in Glascock v. Novato. Advisor to Pebble Beach Company regarding general plan adequacy of housing development site. Advisor on EIR adequacy for steel plant in Northern California. Advisor on general plan and EIR adequacy in two Northern California cities. Advisor on hazardous waste cleanup at existing shopping center in Northern California. Ted Kreines is the only consultant to ever be invited to speak before the Land Use Section of the California County Counsels' Association. 64 Appendix B: List of Documents 1. Accela Automation: GetPerSET250-T8035-D. 2. Assessor's Parcel Maps. 3. AT&T, Development Review Application to the City of Palo Alto, 2010. 4. Bill Vincent, Hydrogen and the Law, 6/11/04. 5. California Code of Regulations, Title 19, Public Safety, Division 2, Office of Emergency Services, Chapter 4.5, California Accidental Release Prevention (CalARP) Program. 6. City of Palo Alto Comprehensive Plan. 7. City of Palo Alto Fire Department, Hazardous Materials Compliance Guide, Cell Sites. 8. City of Palo Alto letter to NSA Wireless, Notice of Incomplete Application, 2/12/14. 9. City of Palo Alto Ordinance No. 4727, Noise Ordinance. 10. City of Palo Alto Planning and Community Environment, Email from Russ Reich, Senior Planner to Chris Durant, 3/10/13. 11. City of Palo Alto, 74-ARB-256. 12. City of Palo Alto, Architectural Review Board, Staff Report, 11/18/10. 13. City of Palo Alto, Architectural Review Board, Staff Report, 12/4/08. 14. City of Palo Alto, Architectural Review Board, Staff Report, 3/21/13. 15. City of Palo Alto, Architectural Review Board, Staff Report, 4/7/11. 16. City of Palo Alto, City Council Staff Report, 3/21/11. 17. City of Palo Alto, City Council Staff Report, 5/16/11. 18. City of Palo Alto, City Planning Department, Use Permit Application, Application No. 65 -UP -11. 19. City of Palo Alto, Department of Inspection Services, Letter to Palo Alto Little League, 3/18/80. 65 20. City of Palo Alto, Department of Planning and Community Environment, Routing Slip, print date 2/27/14. 21. City of Palo Alto, Environmental Assessment Worksheet, 1/29/08. 22. City of Palo Alto, Notice of Proposed Development Project, 2/27/14. 23. City of Palo Alto, Notice of Proposed Development Project. 24. City of Palo Alto, Planning Division, Staff Report, 6/18/09. 25. City of Palo Alto, Technology Committee Staff Report, 9/17/13. 26. City of Palo Alto, Use Permit 2-52, 3630 Middlefield Road. 27. City of Palo Alto, Wireless Communications Facilities Ordinance. 28. Clearwire, Development Review Application to the City of Palo Alto, 2010. 29. Deeds and Grants. 30. Federal Communications Commission - Local and State Government Advisory Committee (June 2000), A Local Government Guide to Transmitting Antenna RF Emission Safety" Rules, Procedures, and Practical Guidance, Appendix A, Optional Checklist for Local Government To Determine Whether a Facility is Categorically Excluded, Evaluation of Categorical Exclusion. 31. Federal Communications Commission, Form 854, 6/12. 32. Illingworth & Rodkin, Inc., Environmental Noise Assessment, 7/17/12. 33. Land Use and Community Design Element, Draft. 34. Letter of Authorization, signed by Mark A. Priestley, Property Owner, 5/28/10. 35. Little League Baseball of Palo Alto, Inc. Letter to City of Palo Alto from Fred Herman, 3/ 26/ 80. 36. Mackenzie & Albritton LLP, letter to Cara Silver, Esq., Senior Assistant City Attorney, 8/ 26/ 14. 37. Manufacturer's HVAC Noise Data. 38. Memorandum of Land Lease Agreement. 39. Natural and Urban Environment and Safety Element, Draft. 66 40. Neighbor comments. 41. NSA Wireless, Email from Chanel James to Russ Reich, Senior Planner, City of Palo Alto, 2/27/14. 42. Palo Alto Fire Department, Certificate of Occupancy Supplement and Hazardous Materials Checklist. 43. Palo Alto Fire Department, Hazardous Materials Program, Hazardous Material Compliance Guide, Cell Sites. 44. Palo Alto Little League and Verizon Wireless Community Meeting, 3/27/14. 45. Palo Alto Little League Cellular Antenna Questions and Answers. 46. Palo Alto Little League, Conditional Use Permit, 2008. 47. Palo Alto Little League, Use Permit, 1965. 48. Palo Alto Municipal Code, Title 18, Zoning. 49. Palo Alto Online, Palo Alto expects dozens of new wireless facilities, 5/16/11. 50. Palo Alto Weekly, The cellular enigma: We love the phone but hate the towers, 3/18/11. 51. ReliOn Fuel Cell Solution Guide to Fuel Ce11 Permitting. 52. Statement of Hammett & Edison, Inc., Consulting Engineers, 2/5/10. 53. Temporary Conditional Use Permit for Selling Christmas Trees. 54. Timothy Ghiradelli, Tree Survey, 9/5/12. 55. Tree disclosure Statement, 7/28/10. 56. Verizon "Coverage with Meadow Middlefield," 3/27/14. 57. Verizon "Coverage without Meadow Middlefield," 3/27/14. 58. Verizon Wireless (NSA Wireless, Inc.), Legal Description, C-3, 8/30/12 with revisions through 8/21/14. 59. Verizon Wireless (NSA Wireless, Inc.), Site Survey, C-1, 8/30/12 with revisions through 8/21/14. 67 60. Verizon Wireless (NSA Wireless, Inc.), Site Survey, C-2, 8/30/12 with revisions through 8/21/14. 61. Verizon Wireless and NSA Wireless, Inc., drawings for a wireless project dated from the last revision on the Title Sheet as 11/9/12. 62. Verizon Wireless and NSA Wireless, Inc., drawings for a wireless project dated from the last revision on the Title Sheet as 11/9/13. 63. Verizon Wireless and NSA Wireless, Inc., drawings for a wireless project dated from the last revision on the Title Sheet as 3/12/14. 64. Verizon Wireless by NSA Wireless, Development Review Application to the City of Palo Alto, 2/27/14. 65. Verizon Wireless, (Title Sheet) Site Location, T-1, 2/12/14 with revisions through 8/19/14. 66. Verizon Wireless, Access and Utility Plan (Title on Sheet is Site Location), A-3, 2/12/14 with revisions through 8/19/14. 67. Verizon Wireless, Amended Justification Statement, no date. 68. Verizon Wireless, Development Review Application to the City of Palo Alto, 8/10/10. Application withdrawn on 2/27/14. 69. Verizon Wireless, Elevation View (Title on Sheet is Site Location), A-5, 2/12/14 with revisions through 8/19/14. 70. Verizon Wireless, Elevation View (Title on Sheet is Site Location), A-6, 2/12/14 with revisions through 8/19/14. 71. Verizon Wireless, Elevation View (Title on Sheet is Site Location), A-7, 2/12/14 with revisions through 8/19/14. 72. Verizon Wireless, Enlarged Equipment Area (Title on Sheet is Site Location), A- 2, 2/12/14 with revisions through 8/19/14. 73. Verizon Wireless, Proposed and Exhibit Photographs. 74. Verizon Wireless, Radio Frequency Plots. 75. Verizon Wireless, Site Plan (Title of Sheet is Site Location), A-1, 2/12/14 with revisions through 8/19/14. 68 76. Verizon Wireless, Verizon Equipment Layout (Title on Sheet is Site Location), A-4, 2/12/14 with revisions through 8/19/14. 69 Ballpark Cell Tower Proposal - Findings of Independent Kreines Verizon CUP Review Community hired expert Kreines & Kreines to independently review the Verizon Celltower application • Neighbors were uncomfortable with the lack of transparency in the Verizon application process • Hired Kreines & Kreines as independent expert to review Verizon application • Kreines & Kreines 70+ pg report distributed Tuesday to ARB Members & Staff • Ted Kreines's qualifications • Over 40 years in telecommunications and city planning, with over 150 clients • Masters and Bachelors Degrees in City Planning from University of Pennsylvania, University of Illinois • Instructor, expert witness, wireless facility audit, city training, telecommunications ordinances, facilities applications, wireless master plans. Ballpark Cell Tower P Safety Hazard ( osa I This issue is not ripe for decision because the information presented by Verizon is incomplete •The ARB decides issues based on specifications, not promises. • No architectural drawing is provided showing backup power, ingress, clearance required, trees which must be removed, or protection against intrusion. • No plan is presented showing access for emergency access and refueling. •The safety information provided is for the fuel cell module only and does not include the entire system including hydrogen storage, refueling, and emergency response. Hydrogen has highest DOT category for flammability: Higher than gasoline Hydrogen is defined as a hazardous material in the California Code of Regulations, Title 19, Public Safety, Division 2, Office of Emergency Services, Chapter 4.5, California Accidental Release Prevention (CalARP) Program has four different sections on "Hydrogen" • The Palo Alto Fire Department, Hazardous Program, Hazardous Material Compliance Guide, Cell Sites states • Hazardous Materials Registration Form (HMR) - Required if hazardous material is present. A Hazardous Materials Business Plan (HMBP) is required if the quantify of any hazardous materials is > 55 gallons, > 5001bs or > 200 cubic feet. • Charnel James, Verizon's representative, responds "YES" to the Palo Alto Fire Department Hazardous Materials Checklist that there are quantities of one chemical greater than 200 cubic feet, 55 gallons, or 500 Ibs • Charnel responds "NO" to "Does the operation of this facility involve the use or storage of hazardous materials?" Not correct. ENERGY.GOV Office of Energy Efficiency & Renewable Energy Search Energy.gov 1 01/4 SERVICES EFFICIENCY RENEWABLES TRANSPORTATION ABOUT US OFFICES > CHALLENGES Technology validation addresses the following key challenges to pave the way for commercialization of fuel cell and hydrogen infrastructure technologies: Hydrogen Storage. Current technology does not provide reasonable cost and volume for transportation or stationary applications. An understanding of composite tank operating cycle life and failure due to accident or neglect is lacking. Equipment Building ARB IS DECIDING ON DOES NOT COMPLY with ReliOn manufacturer specifications • The current Verizon building specifications do not satisfy the specifications of the hydrogen fuel cell contained within it per the manufacturer • More ventilation required than just grills for the ventilation of hydrogen gas and for the three strings of batteries next to the fuel cell. • The ReliOn storage cabinet specified by Verizon is not designed as a sealed gas cabinet as defined by the International Fire Code (IFC) Section 2701.8.6.1 and is intended for OUTDOOR USE only. • The IFC construction requirements: • Constructed of not less than 2.5mm steel • Be provided with self closing limited access ports or noncombustible windows to give access to the equipment controls • Be provided with self -closing doors • Gas cabinet interiors shall be treated, coated or constructed of materials that are compatible with the hazardous materials stored. Such treatment, coating or construction shall include the entire interior of the cabinet Verizon's proposed ReliOn fuel storage could be very dangerous at the site of an athletic field Proposal of 1 ReliOn Hydrogen Fuel Cell, 2 ReliOn HSM9 Fuel Storage Tanks: • Any spark could ignite a H2 leak, and an explosion may result if the leak is in a confined space. Verizon proposes a building with a roof and no exhaust fan. • Project calls for a battery cabinet for three strings of batteries next to the H2 tanks, in contrast to best practices to locate them separately. H2 tanks must be protected against temperature more than 125 °F. This means protection from direct sunlight and especially from external fire. Tanks are equipped with a safety burst plug which will open to prevent an over- pressure explosion. All contents will be vented out and directed vertically. Anything in the path of the flame will be consumed, which is why these units are designed to be unenclosed. Any overhead trees may be set afire. U.S. DEPARTMENT Hydrogen and Fuel Cells Program F ENERGY Permitting Hydrogen Facilities I hydrogen. . >energy.gov SEARCH al PERMITTING _eaich Help Best practices locate the battery backup in a separate location from the hydrogen storage and fuel cell. Does the surroundings plan provide for those dimensions? I� Telecommunications Tower Batt!, j Ba - k.. P Fuel Cabinet Cell 1 Equipment Hydrogen Cabinet Storage 10' PRIMARY STREET CONDARY STREET SETBACK AREAS To display setbacks, roll cursor over categories below. Buildings on same property Dry vegetation and combustible materials Overhead utilities SHOW ALL SETBACK AREAS GO TO SETBACK DETAILS CONSTRUCTION APPROVAL OPERATION APPROVAL J These Hydrogen Fuel Cell Concerns are Echoed by the Independent Kreines Application Review Kreines Report Conclusions: • -Verizon failed to address the potential hazard of the ReliOn H2 storage tanks. • 4 The fuel cell storage tanks (two are proposed) should not be an acceptable choice of backup power supply, particularly when crowds of people (many of them children) are concentrated 100 feet away in bleachers. • -The proposed project does not meet City of Palo Alto Municipal Code 5003.9.8 Separation of Incompatible Materials as the Verizon equipment building does not propose to a) meet the ReliOn specifications for hH2 fuel storage placement, b) segregate batteries in a Charles Industries cabinet 20 feet from the hydrogen fuel storage tank, c) isolate the ignition materials (batteries) from the hydrogen fuel storage tanks by a partition Fuel cell's manufacturer recommends a 25' clearance from H2 storage to dry vegetation. Clearance around H2 storage site is 25 feet. What trees will have to be cut down? Protective fence: How large? How tall? What changes to Mitchell Park parking, ball park storage sheds, and Christmas tree sales? Will H2 tanks and plumbing be protected from a right field home run, or falling tree limb? Reli 0 On Site Evaluation Worksheet for Flammable Gas Storage Stationary Hydrogen Fuel Cells 2009 editions of the International Building Cade, lnternaticnal Mechanical Code and International Fuel Gas Code, which have references to the International Fire Code Typical hydrogen storage siting criteria for quantities less than 4,226 standard cubic feet (scf) and 4,226 to 21,125 scf. Interpretation by the Authority Navin} Jurisdiction (AHJ) will determine final setback distances. Controlling Code Setback <4,226 scf Setback 4,225 to 21,125 scf Dry vegetation and combustible materials'' 2009 IFC 2703.12/270411 115 ft 25 ft The Top of Proposed Tower Is Mere Feet from Eucalyptus Trees on Mitchell Park property • Equipment at the top of the tower is 2 feet from the eucalyptus trees, which are known to be highly flammable and fragile • The Eucalyptus Grove is not on Ballpark property but on Mitchell Park's • "Eucalyptus is famous for exploding into flames" The Science Behind Eucalyptus Fire Hazards, Carol Rice and is prone to falling in high wind: • Celltowers do catch fire (two examples below) • The prevailing wind direction is from the North, toward the trees • This is a recipe for disaster in a residential neighborhood with children and next to the new library and close to Abilities United and Challenger School. • Clearance around top of tower: How wide? Transportation & Refueling The ReliOn Storage Module (HSM) is refueled with hydrogen by driving a truck filled with hydrogen up to the storage tanks. This would require threading a flexible pipe from the truck around the equipment to the storage tank. What easement will refueling vehicles use? With what frequency? What training and supervision required of H2 transportation/refueling crew and fire department? http://h2bestpradices.org/storage/ H2BestPradices: Hydrogen S... x File Edit View Favorites Tools Help x yl c in, coArch A:ECEEKI• ©Google G. APOD W Wikipedla IG7] PA Online I71J PubMed St Yelp You Tube TedtShop' 9]USPTO %.pods �: ►ard 1ir.. Hydrogen Storage and Piping Systems H2BestPractices Home Introduction to Hydrogen So you want to know something about hydrogen... Hydrogen Properties This section applies to commercial bulk hydrogen storage facilities, including stationary facilities, tube trailers, laboratories, and fueling stations. Storage and handling of compressed hydrogen gas and cryogenic liquid hydrogen present potential health and safety hazards. Use of proper storage and handling techniques is essential to maintaining a safe work environment. • The storage system should not be located beneath electric power lines, close to other flammable gases or liquids, or close to public areas. • It should be readily accessible to authorized personnel and delivery equipment, but protected from physical damage or tampering. • Only trained and qualified personnel should be allowed to handle compressed hydrogen gas or cryogenic liquid hydrogen. Refer to training requirements listed in Safety Culture and Incident Procedures. Search H2BestPractices Enter a search term below. 0 References See OSHA 1910.103 for regulations on separation distances for hydrogen storage facilities. See INYFPA 55 ^ "Standard for the Storage, Use, and Handling of Compressed Gases and Cryogenic Fluids in Portable and Stationary Containers. Cylinders. and Tanks" for v �� —�1116a Fire Protection and Suppression Normally hydrogen fires are not extinguished until the supply of hydrogen has been shut off due to the danger of re -ignition and explosion. Personnel who work around hydrogen should be trained in the characteristics of hydrogen fires and proper procedures for dealing with them. Could we put out a tanker fire in Mitchell Park or in the ball park? This application is not ripe for decision by the ARB The following questions require answers from the applicant and should be answered before returning the application to the ARB: •Why can this facility not be located outside of a residential area? •What other residential sites have cellphone towers with H2 backup power? •What procedures and regulations do those cities have it place? •What will be the cost to Palo Alto in inspections and drills? •What loss of ballpark land, city trees, and Mitchell Park parking and facilities will be lost to this facility? •What grants or governmental mandates require this facility? Ballpark Cell Tower Proposal Attractive Nuisance (Florinda) The Equipment Building Presents An Attractive Nuisance to Playing Children • The building is an attractive nuisance at "ground zero" for kids in the neighborhood • There are — 1000 children in the Little League, with many times that visiting this site for games every year. • A 13 foot x 34 foot equipment shed is just an invitation to young athletes to climb, just as they do today on the containers. • The concrete wall has a metal roof below which are "security metal grill" openings for sideways ventilation, however fuel tanks for hydrogen need to be either vented mechanically (exhaust fan) or completely outdoors and these are not. • Verizon proposes an Emergency Temporary generator plug and parking for an emergency generator which would be brought to the property and parked in the parking area 40-50 feet away...why is a generator needed if a fuel cell provides backup power? How does Verizon plan for a power generator 50 feet from a plug to transmit power to the plug? • Equipment would be in a building separated by a two foot gap from the 3 containers on the property...since the equipment is not fenced, this two foot creates a space within which young people can play but firefighters with their equipment have difficulty entering. Does this meet Municipal Code? How close does one building next to a hazardous building need to be to be considered unsafe? Is the liability of this 2 feet covered by Verizon's lease or Palo Alto Little League? The Equipment Building Presents An Attractive Nuisance to Playing Children The Kreines report concludes: • 4 There is no fence all the way around the proposed buildings, but if Verizon or PALL put one there, kids may try to climb over it. A Little League field is a bad place to put an attractive nuisance. And it is inconsistent with the City of Palo Alto Comprehensive Plan, because it is not compatible with the neighborhood (Policy L-12); it will be detrimental and injurious to the PALL property; it will be detrimental to the public health, safety and general welfare; and it cannot be located and conducted in a manner in accordance with the Comprehensive Plan. Screening / Back (Barb; Backdrop / Screening Trees • The Eucalyptus trees along the SW border of the ballpark are on the Mitchell Park property, not part of the Ballpark property • Large Eucalyptus trees are known for failing • Increased risk of tree fall into cell tower and fire • Risk of City tree removal to avoid risk (note City's actions taken at Eleanor Pardee Park) • Would leave barren landscape and a ridiculously prominent cell tower in the middle of a residential and community park neighborhood. As these trees are being considered part of the "stealth" installation of this tower, what studies have been done to ensure their health and longevity at this site? „, , ,"zZakaZz Middle Class Tax Relief and Job Creation Act of 2012 Section 6409, which pertains to "Wireless Facilities Deployment," says: ...a State or local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station. The term, "substantially change" is clarified by the FCC to include the following in their clarification of this federal law: • An increase of up to 10% of the height of the tower or 20 feet, whichever is greater • The addition of width equal to the existing pole, or 20 feet, whichever is greater Middle Class Tax Relief and Job Creation Act of 2012 The term "eligible facilities" means: "any request for modification of an existing wireless tower or base station that involves — (A) collocation of new transmission equipment; (B) removal of transmission equipment; or (C) replacement of transmission equipment." Middle Class Tax Relief and Job Creation Act of 2012 What this means: Once a cell tower is erected ("stealth" or not), neither the citizens, the ARB, nor the city government will have any control over changes or incremental additions such as more Verizon antennas or the co -location of other carriers. • Each additional antenna array and/or carrier would allow this tower to grow by as much as 20 feet in height and up to 20 feet in width (for the appurtenance). Verizon has made clear their intention to sub -lease space on this tower to other carriers, and other carriers have expressed interest, so co -location is not a fantasy, but almost a certainty. Middle Class Tax Relief and Job Creation Act of 2012 Our Assistant City Attorney — 9/18/2014: • When asked about what would happen if another carrier wanted to co - locate, she said the City would "have a problem." Our understanding is the 2012 federal law trumps city ordinance, so the 65' height limit will not be a factor. ➢ City Attorney's office: please confirm whether or not a federal law trumps a city ordinance Irrespective of any height limit, the ballpark's existing tower will allow colocation — atop other, existing poles, or atop new poles yet to be installed. The "stealth" design is not required of any future antenna array, nor is it required to persist with the currently proposed tower. Simulated View of Proposed Tower from Mitchell Park Library (Based on NSA Wireless Simulation from 2013) ➢ Cell Tower dominates view Once this cell tower goes in, the Future View From the new Mitchell Park Library may be... Palo Alto is Finally Working on a Wireless Plan! ➢ The City of Palo Alto has hired wireless communications firm, Anthem Telecom, "... to assess the City's wireless communication needs, propose a system to meet those needs, and develop a strategy.... " (Quoted from City Council Staff Report, Sept. 8, 2014) It is irresponsible to act on an application now, especially with the magnitude of this one, without allowing the City and its residents to participate in formulating a comprehensive wireless plan for the City. Let's Not Forget the Future! In the past, the City and ARB have encouraged Co -location of cellular antennas. ➢ Has Verizon truly exhausted ALL options for colocation with existing antennas? The residents have not seen a comprehensive report with verifiable information. ➢ Colocation in the future, particularly in light of the 2012 law: ➢ The ARB must make their approval or denial of this proposed tower based not just on the aesthetics of this specific application, but on all potential, cumulative impacts that may result from additional towers and antennas due to required colocation. ➢ Promises and signed contracts from the applicant, the Ballpark, or anyone else will not stand up to federal law. Once this tower is in, Palo Alto will have lost all control of antenna proliferation, aesthetics, and residential control over this site Appendix Iffleitertwirelimi Meadow Middlefield Site # 117403 proposed antennas proposed matching light standard 3672 Middlefield Road 9127/13 Palo Alto, CA 94302 View II 8i Possible Future View From Mitchell Park Library Ballpark Cell Towei Threatened Lawsuit`(`Peter) osal- Verizon Is Threatening to Sue the City of Palo Alto over this Ballpark Celltower Application, Invoking the FCC "Shot Clock" • Verizon is pressuring the City with threat of a lawsuit over this celltower application • Mackenzie & Albritton LLP sent a letter to Cara Silver, Esq, Senior Assistant City Attorney on 8/26/14 • Kreines could find no document (Notice of Completion) stating that this Verizon application is complete, yet the City initiated ARB hearings under pressure from Verizon • Verizon even announced to all of Palo Alto an ARB date which Planning had not confirmed We would like to see the Notice of Completion formally filed (as per CA law) and have this process proceed without undue pressure on the city and city's employees. 141�tlitENYIK & ALBRI"ITON 1.12 !,11 %* .1 Wr Snrr1, Idm 44.4.0411 SO4 Ia OKISCCI,CALPOILMA 941 TYurRIe 41l 344-4441 f11t]MI111 MIX90 August 2b. 2014 Cara Salter. Fay. Sensor Als stmt City Attorney Coy Hall BIB Floor 236 Hamdeoe Avenue Halo Ake. C*hlaau► 94301 Re- Veeim* Widen Applied,* a I4PL N-0007( Ta teammoeieetions Paeiltty 3672 Middlefield Red Verizon Is Threatening to Sue the City of Palo Alto over this Ballpark Celltower Application, Invoking the FCC "Shot Clock" : .x. h11►V1 title -kW. - t re% to N ►►t At► .49 tc 111100 RI l CittVVAN't t ltilttual consent Rt;: !i _ '• 44 to tvtici to allow it tits to at s on the applK-rnuon in an tutbrt) tuatin r li 4isticatr.l, without °that pan) rtil►ttj tho kiia of ullpwtant rights, the pantos agree that tttr blocltrrl,►d w-tthtn which the Pay ma) act of the .Application itlatl t omentiOti ttuough [k stows 13. 2014, anti that nii linittationt period tta arts . talm of wirowttmabk .v unlawful %kola) to prtac ►►ttyt tha Application shall comtnrnce to run betttrt mud bate asioc, this kucf agreement ma) be rxrtutrtt in .t+unterparta, and %cane tti flu:unit rugntttures shall be doemod e4wv4I nt tit original signature. I well appre late your returning a countersigned copy to rue at your csrLiost CaaN r I t t rk e Inam.... ,.„--„„i0o,,,,,,,,, Sirnc crrl When Under Duress, the City's Due Process Goes Out the Window... • City's due process has been faulty • Constant changing of drawings that are different from those accepted by the City of Palo Alto to represent the project • Those announced to neighbors, reviewed by City Staff, and subject to Notice of Completion are all different...different projects all dated after the City's acceptance dates in Accela • It becomes unclear which facts apply • Notice of Completion is required within the State of California, so CEQA designation unenforceable • Example: City departments were routed old documentation per Accela vs latest for approval • Per Accela, application was accepted by City by Jason Nortz on 2/27/14. Drawings from that application were routed to various City departments with the following description: Request by Verizon Wireless for a minor architectural review board and conditional use permit application for the co - location of 6 panel antennas between two existing light fixtures at the Palo Alto Little League Field. Zone District. R-1(8000). • The application was accepted in February, yet the project drawings were revised on 3/12, many times again, and finally on 8/19...so the City accepts the submittals, notices them to the public, and then allows Verizon to make changes When Under Duress, the City's Due Process Goes Out the Window, which is Unacceptable • It is standard process in the review of development projects to "freeze" a design and assign an identification code. If the design changes, so should the identification code, which was not the case here. The alphanumeric Accela code is entirely missing on many document so it is unclear which proposed project a document pertains to • Since the first notice to neighbors about the project went out, the proposed project design has been changed four times: Fake tree (8/2010), six antennae on two monopoles (11/2012), six antennae on one monopole (2/2014), three antennae on one monopole (3/2014) • Verizon revised its drawings 2/27, 3/12, 4/2, 8/19 with no Notice of Completion for the most recent drawings • Today's ARB materials were filed under "Industrial" online, not "Residential" • 4 Verizon created a moving target and the City of Palo Alto has done nothing to freeze the project description • 4 The City creates a "moving target" when referring to two or more different sets of drawings as the same proposed project. Palo Alto Municipal Code Section 18.76.010 (b)(2) regarding CUPs • According to the Palo Alto Municipal Code, Title 18, Zoning: Section 18.76.010(b)(2): • Any expansion in the building size or site area of an existing conditional use shall necessitate the amendment of the conditional use permit. Denial of an application for amendment of a conditional use permit does not constitute a revocation of the original conditional use permit. • This project must be compatible with zoning, which implements the Comprehensive Plan. • When the City considers a CUP on a property that has prior (in this case at least 3) CUPs, the City should ensure that the new CUP dos not create an inconsistency with prior CUPs • Therefore under zoning, one tool of which is the CUP, the CUP must consider • Does the prior CUP on the property make any allowances, assumptions or conditions that are different than those under consideration for the proposed project? • Could the prior CUP be amended rather than inventing an entirely new CUP so that the prior regulations and the proposed regulations are consistent with each other? • Does the prior CUP still stand as a valid document; is it being followed and was it drafted legally? • The answer to most of these questions is "yes" History of Permitting at 3672 Middlefield 2014: Cell Tower(s) CUP??? l 2008: 08PLN- 00024 Install Light Posts 1965-2008: Unpermitted, noncompliant additions 1965: 65UP11 Storage Building 1956: UP: Clubhouse 1952: 2-52UP: Construct a Ballpark A new CUP can not be issued until at least the most recent CUP and non -compliant additions are brought into compliance OR PALL remains non -compliant with no CUP • No 4 60' • O 4. 4. Onl • • O s No mo 4 h t' per �Qeek ts • Game O'er Co OT I 'V' ,0r0 ate to wi 0 3 ise ante $:m •0 r •per' Cages Thre Tage setback Now used as a equipment shed ings • •' GO 11 • One shed and another...The "Ugly Stuff" as described by ARB Three metal containers behind sheds (one visible on right) Batting cages with offending fences / setback violation (on left) "Adhoc Incrementalism" with Permitting: "It does not matter what we said then, but rather what we say now" • The City is considering an entirely new CUP on a property that already operates under a CUP and can not just approve another CUP and paste it over three existing CUPs...it must rather take into account existing policy for the site in question. And it should not conflict in allowances, assumptions, and existing conditions assumed by the previous CUP. • The current application being evaluated...PALL authorizes Verizon to: • Expand existing light poles over the height designated by CUP 5/8/08 from 60 previously to 65 feet which would constitute a violation of the 2008 CUP • -The PALL field CUP of 2008 should be amended by the City of Palo Alto to reflect the actual light pole heights of 60.3 feet AGL regardless • Expand number and square feet of buildings on site from 2 previously (a clubhouse, square shaped building) to 5 (clubhouse, sq. building, 2 small sheds, Verizon equipment building) • -An expansion in the number of buildings and their total square footage is proposed with the "equipment enclosure". The original PALL CUP should be amended to include all five buildings in Verizon's Site Plan. • Approve the northernmost driveway off the project site as a legal entrance to PALL field. The driveway that PALL uses is on City of Palo Alto property and is not on the project site and never has been • An encroachment permit, followed by a streetwork permit, followed by an ingress/egress permit for use would be needed for the driveway, followed by a legal instrument like easement or covenant by which the City allows PALL to use the driveway • 4 The PALL CUP of 2008 should be amended to show the correct ownership of property used by the PALL field in order to gain ingress from/egress to Middlefield Road. Opening a New CUP which Expands Building Size Requires Addressing the Old • At least one lighting pole 4 inches higher than allowed • 3 containers and two buildings are classified as "buildings" by Palo Alto Zoning Code without any permission from the City for construction or use each • "Building" means any structure used or intended for supporting or sheltering any use or occupancy. • Erecting of batting cages within 8 feet of interior side yard without a permit. As structures in an R-1 interior side yard, these are encroachments not permitted • Title 18 Zoning 18.04.030 (134) "Structure" means anything that is constructed or erected, the use of which requires the location on or in the ground or attached to something located on the ground, including but not limited to buildings, swimming pools, tennis courts, but excluding patios, sidewalks, driveways, or parking spaces. • Backstop and fence height not permitted • Lighting shines in windows of homes in a violation of lighting ordinance • -As of 2014, the PALL field does not comply with its own CUP Kreines Report Conclusion • This project can not be approved without amending the PALL CUP, which will require dealing with PALL's non-compliance of its own CUP • A CUP (even though it is duly adopted and beyond its statute of limitations for challenges) cannot be amended unless the original CUP is brought into compliance with all regulations. • The City should attempt to amend the PALL CUP to correct all existing non-compliance issues • OR it could deny the new PALL CUP, leaving the existing PALL CUP intact but non -compliant Where are the Standard Application Details Regarding the Significant Construction Required for Project? No detail is included about construction project itself, which is very unusual for a Verizon application • Cable route of 50 feet with dozens of cables underground requires concrete lined trenches with scores of yards of off -haul • Policy N-51 of the Natural Environment Element of the Comprehensive Plan states: "Minimize exposure to geologic hazards, including slope stability, subsidence, and expansive soils, and to seismic hazards including groundshaking, fault rupture, liquefaction, and landsliding." • No information about structural integrity exists in the application • Depth of caisson foundation at least 1/4-1/3 of tower height, or at least 6 feet diameter and 22 feet deep. When excavation is proposed, approval is required • - The proposed project does not meet this policy because proposed monopoles set in several feet of excavated earth need seismic stabilization and none is proposed. • How will 34 feet of 18 cables each of 7/8 inch diameter hang overhead in the structure at 4 Ibs per foot? • The project site seems to have 6192 square feet of "Parcel 2 property" which was City of Palo Alto land used for the PALL field...Parcel 2 uses a driveway owned and controlled by the City of Palo Alto. There is no easement for this driveway, so which driveway will all this construction be using? "t71111111111 Conflicting, Distracting, & Misleading Information • "Equipment enclosure" vs. a building, which has a roof, concrete block walls 9 feet tall, and locked doors....and is subject to more limitations than an enclosure. • According to Palo Alto Zoning code: "Building" means any structure used or intended for supporting or sheltering any use or occupancy. • 2 buildings or 5: The Square -shaped storage building in C-1 is also shown as half building in C-2 stated by a licensed surveyor, yet Verizon calls them three containers in A-3. Containers are buildings when used for storage and should be identified as such. • Verizon's "Outdoor Equipment Layout" is actually Indoor and its Legend has nothing to do with the Outdoor Equipment Layout • Verizon Equipment Layout A-4 has nothing to do with the plans, as 1-29 in the legend don't exist, such as #5 Air Conditioning Unit but none is shown in the plan. The same layout specifies CDPD not in use by wireless carriers since 2004 • Contradictory lease areas proposed of 442 sq ft (13x34) in C-2 vs 510 sq ft (15x34) in A-5 and in Sept 5, 2014 letter to ARB • Lightpole vs. monopole when lights would be a secondary use and the real issue is the height of the pole, the focus of the 2008 CUP, not the height of the lights (The 2008 CUP states: "Each light post will be 60 feet tall") • One monopole or two? Drawings still show the eastern light pole as a thick monopole • Generator information incomplete • 6 antennae or 3. The application of 2/27 and the Routing Slip of 2/27 clearly specify 6 antennae. All Elevation views show two antennae arrays vertically stacked, or 6 antennae. Verizon can certainly point to substantial written evidence of a six antenna project, which is a conflict of project description. Conflicting, Distracting, & Misleading Information (Cont.) • The Application includes "Wireless Communication Facilities" (wcF, which means anything that transmits or receives wireless signals such as building contractors' dispatch or police/fire radio) vs Personal Wireless Service (PWS, per Federal District Court of NY), as defined in the Federal Telecommunications Act of 1996 • Even if shared with lighting, the mount's purpose is as a PWS monopole • Unclear how the antennae are affixed to the pole and how the radome shield is affixed to the pole, critical to specify as part of the CUP process, particularly in seismically active regions • Equipment shelter is a building here • Cables are not shown on any application materials, nor is the route (overhead, at grade, or underground) • Lease Area usually spells out the mutual responsibilities between lessor and lessee. Unclear who controls the emergency generator pad and generator power transmission to lease area, monopole, and cable route. • The Evaluation of Categorical Exclusion identifies the bottom of the antennae at 57 feet whereas Verizon specifies 60.5 feet Conclusion: It is impossible for City of Palo Alto decision makers or citizens of Palo Alto to understand a project with such profound conflicting descriptions. The City should have Verizon revise their application and application drawings to be consistent and to describe the same project. Changing the drawings after the City of Palo Alto accepts the application is misleading to the public. Proposed Wireless Array Inadequate to Fulfill Claims • 3' x 5' foot antennae won't accommodate PCS, AWS, 700 MHz (with a total power of 3000 Watts, per a Verizon engineer). This would require closer to 9 antennae plus several Remote Radio Units and 6 Tower Mounted Amplifiers. So how large will it really be? ➢ The ARB should require the applicant show the antenna /radome shield design and how the equipment fits • Really using CDPD (Cellular Digital Packet Data)? • Verizon can probably not deliver its 3G (not to mention 4G) services from 3 antennae along with accompanying RRUs and TMAs all crammed within a 3 x 5 foot radome shield. A signal from this limited facility would not serve the coverage shown in the Verizon "Coverage with Meadow Middlefield" depiction. • RRUs are mounted behind the antenna in Verizon sites, thereby requiring more room in the radome shield -Verizon claims it will fit three antennas and associated TMAs and RRUs within a three-foot by five-foot radome shield, but Kreines & Kreines, Inc. does not believe that this is possible. Proposed Wireless Array Inadequate to Fulfill Claims (Cont.) • A-4 indicates three components with dashed lines to connote "future," which means that Verizon is asking the City to approve 3 of the 7 of the array components (43%) which are not needed at this time. If Verizon is going to show "future" equipment, shouldn't it show future antennae (and RRUs and TMAs) that the equipment will be needed for? • The 3 foot diameter by 5 foot long radome shield pictures scale to 4 feet in diameter by 8 feet long, which means that what is drawn is much larger than what is described. Two arrays of antennae are shown vertically stacked, meaning 6 antennae, which would make this a 6 antennae project rather than a 3 antennae project. This is consistent with notifications to the public and to each person in a City Department listed on a City Routing Slip. �Kreines believes that Verizon is building a monopole that will serve as a platform for the attachment of much more equipment. The City should require Verizon to resubmit its application and drawings to clarify whether antennas are to be located on only one monopole or if antennas will be located on two monopoles. If future antennas are planned by Verizon on any of the monopoles, their sizes and positions must be shown with a dotted line on the drawings. :1120 Cornc] Inconsistent with City of Palo Alto Comprehensive Plan The proposal is not consistent with the City of Palo Alto's Comprehensive Plan or the Palo Alto Municipal Code, zoning, or a residential neighborhood • The City of Palo Alto Comprehensive Plan states 1-3 "The Plan establishes the physical boundaries of residential and commercial areas and sets limits where necessary to ensure that business and housing remain compatible. It encourages commercial enterprise, but not at the expense of the City's residential neighborhoods." • The landmark lawsuit O'Loane v. O'Rourke states "The Land Use and Community Design Element provides a "constitution" for the development of public and private property." • This means that the property may have temporary uses, it may have conditional uses, and it may have interim uses. • But in the final analysis, the property can have no use that may conflict with or do violence to the underlying Comprehensive Plan designation, which for the proposed project is Single Family Residential No use within Single Family Residential Comprehensive Plan designations should be approved by the City so that the ultimate development of the property will be inhibited or impaired. In case the PALL field is not sustainable, it can be readily removed for a residential subdivision or a mansion. But a cell site is a long-term contractual use that cannot co -exist with Single Family Residential on a less than three -acre site. Inconsistent with City of PA Comprehensive Plan (Cont.) • The Land Use and Community Design Element is clear that there are some 35 identifiable Residential Neighborhoods in Palo Alto. As a Single Family Residential property zoned R-1, this site is in a residential neighborhood • Policy L-12 specifies to "Preserve the character of residential neighborhoods by encouraging new or remodeled structures to be compatible with the neighborhood and adjacent structures." • So the City could change the designation of the project site in the Comprehensive Plan to match the current use, which is Open Space and could have done so at the time of approving the PALL field and a conditional use. By leaving it as Single Family Residential in the Comprehensive Plan, the City of Palo Alto created a conflict in the project site's ultimate development A finding cannot be made that the proposed project is consistent with the City of Palo Alto Comprehensive Plan The proposed project does not "accomplish the objectives, policies, and programs of the Palo Alto Comprehensive Plan" as it may create a fire hazard, does not provide for the neighborhood's general welfare and does create an unattractive and disharmonious community Inconsistent with City of PA Comprehensive Plan (Cont.) • Not compatible with residential neighborhood 4 Does the proposed project involve structures that are compatible with the neighborhood? The monopole with antennas and the monopole without antennas are not compatible with the neighborhood. The proposed equipment building is a hazard and is not compatible with the neighborhood. The proposed project is in violation of the Comprehensive Plan, and no finding can be made that: • The proposed project will further, promote and accomplish the objectives, policies, and programs of the Palo Alto Comprehensive Plan. • The proposed project will be located and conducted in a manner in accord with the Palo Alto Comprehensive Plan and the purposes of this title (Zoning). ____uq ,m ,, _____ ■ Inconsistent with City of PA Comprehensive Plan (Cont. • Site Survey C-1 is not a survey as it does not have a licensed surveyor's stamp ) • Shows a proposed 10 foot wide easement, should only show what exists. • Turning radius will not accommodate conventional trucks or the flatbed trailers and operating equipment required with this width, turning clearances, turning radii. Since this is a design review proposal, the requirements must be shown in plans and vehicle specifications. • There is no encroachment permit, street permit, or ingress/egress permit for the one driveway • Shows the 3 containers as BLD or buildings that have been there all the time, which is clearly in accurate 4 The "Site Survey" in C-1 does not show the existing condition of the project site. The one fact that is shown is a driveway used by PALL on land owned by the City of Palo Alto. Varying labels and descriptions cause confusion in the process of review. A survey should answer questions, not not raise them. • Site Survey C-2 is an enlargement of an area of C-1 • Proposes 3 easements (access, utility, coax) but should show existing conditions only • Unclear if proposed utility easement crosses over existing water/electric lines, coax, or over existing "underground" line • Unclear if underground line runs under the lease area • All should be resolved at the prior to CUP approval Attachment H CITY OF PALO ALTO, GA Carnahan, David *' CITY CLERKS OFFICE From: Alberto Poggesi <alberto_poggesi@yahoo.com> 114 DEC —9 PM is 32 Sent: Tuesday, December 09, 2014 2:38 PM To: Council, City Cc: Alberto Poggesi; Jason Yotopoulos Subject: Request for a public hearing for the Little league park cell tower Honorable members of the Palo Alto City Council: My family and I have been residents of Palo Alto for almost a quarter of a century. We live accross Middlefield from the new Library, and therefore very close to the Little League ball park. We will not be able to physically attend the upcoming meeting of December 15, but we would like to request that your decision on the cell tower project be held until a public hearing can be scheduled on the subject. In the past, ad hoc meeting have taken place that have discussed specific aspects of the plan, with specific groups of neighbors. Conclusions were reached. But then different meetings took place with different groups of neighbors and different decisions were reached. As far as we know, the final plan was never presented to the whole neighborhood for comments. That seems to be a significant departure from the traditional, proper process, and we believe that such departure should be corrected. Sincerely, Alberto Poggesi 3809 Middlefield Rd. Carnahan, David CITY. OF PALO ALTO, CA CITY CLERK'S OFFICE From: Barb Cooley <barb_cooley@yahoo.com> Sent: Tuesday, December 09, 2014 2:51 PM To: Council, City Subject: Middlefield Cell Tower Dear City Council Members, I4 DEC -9 Pit 4: 32 am writing to ask you to please remove the Middlefield Little League Ballpark Cell Tower proposal from the Consent Calendar. I believe this proposal is exactly the type of project that gets through the planning department and review processes and then later, when the public finally understand the impact, has residents angry. This proposal is a perfect case of incrementalism, where despite numerous violations, the planning department has approved another CUP on top of several other violations, without first requiring the subject property to come into compliance. I am at a loss to understand why the planning department does not follow the City's rules, but if this is typical, it does shed light on why so many residents are so angry. Additionally, the City has invested in a consulting company to help the City create a wireless plan. It makes no sense to approve the largest cell tower in the City in an R1 zone just before we create a plan. How does one defend that kind of decision? There is no emergency need for more Verizon coverage in this area. As a Verizon customer I, and many of my neighbors, can attest to having great cell phone coverage - the best of all the carriers, in fact. Finally, the neighbors nearest the Ballpark, in Adobe Meadow, have been subject to a campaign of misinformation and politicking, and do not have the relevant facts required to have an informed opinion on whether this location is appropriate for a new, 65 foot cell tower, which will most likely be followed soon after by more towers and antennas due to the wireless provision in the Middle Class Tax Relief and Job Creation Act (section 6409a). These neighbors have also been led to believe that the choice is a tower at the ballpark or no increased coverage - which is not true. Most troubling, these neighbors are being led to believe that their cell phone is their best bet in an emergency, which is simply dangerous. There is a particularly vocal proponent of this tower, who has been an ardent proponent since the first "fake tree" proposal five years ago, who's law firm enjoys the business of wireless carriers. When asked about a potential conflict of interest, he did not respond. This cell tower would be precedent -setting, and should not be approved. As we have seen over and over again, each new exception becomes a new precedent that causes future problems. The planning department has been unable to articulate why a 65 foot cell tower at this R1-8000 zoned property would not be precedent -setting for all R1 zoned properties. Verizon has failed to prove why it requires a tower and why it cannot put it in a more suitable location. I believe they have no interest in another location, even though it would serve their stated goals equally well, because of the long-range benefits they will get from ' this location: sub -leasing space on their tower and adding more antennas and towers as desired. The City planning department and Verizon have already confirmed that the next cell tower at that location would likely go right opposite the new Mitchell Park library floor -to -ceiling windows. Hilary Giteleman's statement in her recommendation to approve this proposal states that Verizon would be required to obtain another CUP for another tower. Maybe true, but the City will have zero authority to not approve the CUP based on the above -mentioned Federal law. None. Local government and City ordinances do not trump Federal law in cases where the Federal government has claimed jurisdiction. The City does *not* have an obligation to approve a conditional use of this property, it `does* have an obligation to follow it's own zoning and comprehensive plan, as well as protect residents from harm. Even the Telecommunications Act of 1996 does not preclude a city from protecting it's residents. The planning department is comprised of paid employees, you are our elected officials. Please remove this from the Consent calendar and get first hand information. The City deserves to have our elected officials make informed decisions on precedent -setting issues. Thank you! Barb Cooley CITY OF PALO ALTO, CA Carnahan, David CITY CLERK'S OFFICE From: willyhlai <willyhlai@yahoo.com> 114 DEC —9 PM to 32 Sent: Tuesday, December 09, 2014 3:18 PM To: Council, City Subject: Please Pull Little League Celltower Topic Off 12/15 Consent Calendar for Hearing Dear City Council, I am a resident here in Palo Alto and would like to respectfully request that Council please pull the proposed Little League Cell tower topic off this coming Monday's Consent Calendar to have a public hearing. This Verizon cell tower at 65 feet high would be the largest cell tower ever in a residential area in all of Palo Alto. This issue has been in process for over four years and has caused much controversy, with many concerned neighbors. 100s of neighbors have signed a petition against it and neighbors have also written hundreds of pages of letters in opposition, as can be found in the latest online materials from last week's meeting. With hugely flammable high pressure hydrogen at the Little League site in an unfenced building for kids to easily climb on, this is a significant safety risk which has been inappropriately addressed. The foot and a half wide cell tower will be visible from all around, particularly our newly opened flagship Mitchell Park Library- and Verizon has plans to grow it further. With Verizon blatantly attempting to pre-empt our City's Wireless Comprehensive Plan by rushing this application through, as a City we must focus on this topic carefully. Thank you for pulling this item off the consent calendar and calling for a public hearing. Sincerely, Willy Lai Carnahan, David CITY CLERK'SOF OFFICALTOE From: Mei-Hsia Tan <organizing.communities@gmail.cc OEC -9 PM t 32 Sent: Tuesday, December 09, 2014 3:41 PM To: Council, City Subject: Re: Cell Tower To whom it may concern, I am writing as a concerned resident in the neighborhood to request that the cell tower item be pulled off the consent calendar tonight in favor of a hearing being held to further discuss this topic. This topic appears to have created some controversy in our community and warrants a closer look. If other neighborhoods have already opposed the construction of this cell tower in their midst, and there is no significant nor tangible benefit to the larger community (other than "better cell reception"), I feel the approval of having this structure built would be represent a lapse in judgment for the common good. Certainly, its construction would do nothing (and may well weaken) to strengthen community -building among neighbors. Many thanks for your consideration, Mei-Hsia Tan Adobe Meadow resident Carnahan, David CITY OF PALO ALTO. CA CITY CLERK'S OFFICE From: Lisa Durbkin <mht. jm@yahoo.com> Sent: Tuesday, December 09, 2014 4:07 PM To: Council, City Subject: Cell Tower: Further discussion requested City Council Members, I`4 DEC —9 PM 4o 31 I am a concerned resident in the neighborhood and would like to respectfully request that the cell tower item be pulled off the consent calendar tonight. This topic has created some controversy in our neighborhood and has weakened the fabric of our community. It warrants a closer look. I am in favor of a hearing being held to further discuss this topic. Currently, there is an undeniable appearance of special interests potentially swaying the decision at the expense of the general good. Certainly, the Little League may have to exercise more creative ways to manage their budget more effectively without this cell tower. However, that is simply the reality/cost of doing business. Not having the tower hurts no-one. Constructing it, on the other hand, arguably adversely affects the entire neighborhood. Thank you for representing the interests of the larger community. Ray Lin Adobe Meadow resident and past (and future) Little League parent CITY OF PALO ALTS, CA Carnahan, David CITY CLERKS OFFICE From: frank ingle <frankwingle@gmail.com> 14 DEC "9 PM 4: 31 Sent: Tuesday, December 09, 2014 4:10 PM To: Council, City Cc: Silver, Cara; Gitelman, Hillary Subject: request your votes to remove Verizon project from the consent calendar to permit adequate discussion of the deficiencies of the design Importance: High To members of the City Council, The agenda for the upcoming meeting of the City Council on December 15 is not yet published. I oppose the proposed Verizon cell phone tower and ask for denial of approval by the ARB and the CUP approved by the Planning Commission. I request your votes to remove this item from the consent calendar so the deficiencies of the design can be brought to your attention at a future meeting. My opposition is for the specific reason that this issue is not yet ripe for decision, because the plan as presented has conflicting design variations which make safety assessment impossible without additional information which was not available at the time of the ARB and Planning Commission decisions. Further, the actual decision of the ARB was not recorded correctly, since it incorporated later comments by a member into the reported decision, although the vote had earlier been cast without the comments. The Verizon plan provides for storage of a large quantity of compressed hydrogen to fuel the power backup fuel cells. This plan locates an unnecessary highly flammable fuel in the midst of playing children and close to the line of trees nearby. Some other site and any other fuel would be more appropriate for this design. More economical and safer power backup alternatives would be diesel fueled generator or methyl alcohol (methanol) fueled fuel cell. The uncertainties of the present design result from lack of a functioning document change control system at the City. The Verizon application was approved much earlier by the Fire Department and the Planning Department, but significant changes have been made to the design subsequent to those assessments before the design was presented to the ARB and the Planning Commission. The Verizon documents should all be brought up to date, frozen, and submitted to the Fire Department and Planning Department for reexamination, before being submitted again to the ARB, Planning Commission, and City Council. I have confidence in the capability and authority of the Fire Department to make assessments of safety, but approval of a much earlier design does not mean automatic approval of the later design without additional consideration of the changes made to the design. Examples: The equipment specified for fuel cell and hydrogen storage are made by Relion. Relion asserts that their equipment is for non-residential use only. The proposed site is zoned residential. If the Verizon plan is required, the location should be moved to a remote or industrial area. The Fire Department was unable to determine if a cell phone tower with back up from compressed hydrogen powered fuel cell has EVER been sited on a property zoned residential. The Fire Department consultant testified to the ARB meeting that the hydrogen used was in the form of cryogenic liquid hydrogen, at low pressure, and thus not a danger. When he left the stand, Verizon corrected him and he returned to the stand to say that the fuel is indeed high pressure compressed hydrogen gas. The consultant later testified that the compressed hydrogen will be stored in tanks which are exchanged periodically for full ones. However, the Relion product they specify in the drawings can only be refueled by a tank truck. The consultant later asserted that the tank truck can easily drive along the easement provided to the equipment building to refuel the tanks, and then back out over the same route. This would be impossible over the tortuous easement specified in the drawing. The consultant responded that the tank truck is small. Cryogenic hydrogen tank trucks are smaller, but the tank trucks which refuel compressed hydrogen stationary tanks are very large and require a tractor trailer rig. The consultant asserted to me that the equipment building would have a roof which is hinged along one edge so in case of an explosion the roof hinges upward rather than being blown to pieces. The Relion equipment specified is for outdoor use only, and engineering drawings provided of the building are labeled to have no roof. The consultant asserted that the setbacks around tower and equipment building specified by Relion are not required because the equipment will be contained in a sturdy building and no fence will be required. However, the equipment to be installed is specified for outdoor use only and a wire fence is specified by Relion. The actual equipment building will be only 2' from a little league storage building. Children have been seen walking on top of this building and could easily jump onto the Verizon equipment building. This compromises the safety of the equipment building and endangers the children. The consultant asserted that the nearby eucalyptus trees would not pose a fire danger since a setback distance of 25' would be observed and the trees kept trimmed. I provided photographs showing that in the event of a hydrogen fire, the fire is very sudden and strongly directed straight upward, which in my personal view poses an unnecessary fire hazard. I am particularly wary of fire hazards. My own house was destroyed by fire in the middle of the night because of a short circuit within the wall, despite the fact that the house was originally built to code. I do not believe that accepting the large hazard of a compressed hydrogen fire near playing children and under a grove of flammable trees is wise, even though the fire department views the probability of such a fire to be low. Particularly when there are fuels available which pose a lower hazard. I strongly recommend that the City Council disapprove Verizon's application, and that the Verizon application be returned to the Planning Division with instructions to bring all Verizon documents up to date, freeze the design and again seek approval of the Fire Department, then return the design to the ARB and Planning Commission for consideration. If this is not done, then it cannot later be determined exactly what was approved. Since the CUP runs with the land, approval would open the door to similar siting at other properties zoned residential. I am available for comments or to provide support for these comments. Thank you, Frank Ingle, Ph.D., PE, CEO resident of Palo Alto for 35 years Instruments for Science and Medicine, Inc. 814 Richardson Ct Palo Alto, CA 94303 650-799-3813 Carnahan, David CITY OF PALO ALTO, CA CI=TY CLERK'S Of EKE From: Sent: To: Subject:. Paul Machado <plmachado@gmail.com> Tuesday, December 09, 2014 6:16 PM Council, City Cell Tower I OECIO All 10 01► The cell tower proposed for the little league field on Middlefield has been the subject of a very thorough appeal. Perhaps it deserves more consideration than to merely denied by being placed on the consent calendar. Thank you Paul Machado Evergreen Park 12/3/2014 3672 Middlefield Rd Verizon Wireless Light pole co -location at the Palo Alto Little League Field Presentation team for Verizon Wireless: Paul Albritton, Mackenzie & Albritton, LLP Charnel James, NSA Wireless, Inc. Chris Durand, NSA Wireless, Inc Site Plan a 4. ! fYP- IJ i f h' f N*W f fJl f{} 7� .Y FJ.y� x gg $ I�i . 1 Jd F � J / �r 4. {. :w �i� �4 • i r ti7 f l' �J f ,i Jr= Jt `� -am rreenzs i : ' c 12/3/2014 ,Distance from facility --,to Property Lines: Equipment Area: 'Rear Property Line: 40' Side P/L North: 96' Front P/L: 259' ;Side P/L South: 240' Light Pole: Rear P/L: 29' ` Side P/L North: 154' `=Front P/L: 303' Side P/L South: 195' Site Placement The Pole that will be replaced is the light pole in the northwest (rear) corner of the property to minimize the visual Impact from adjacent properties. The location of the shelter for the equipment will be adjacent and in between existing little league storage containers and will not be visible from Middlefield Road. All utility and coaxial cabling for the site will be located within the pole and underground to the equipment shelter. There is mature vegetation surrounding this property. Tall trees screen the facility from western views, Verizon has committed to maintaining those trees to protect the view. Additional landscaping was recently planted at the library which will act as a natural visual barrier to the little league field. 5^t�.xwuw^.ra vah011 414, 2 12/3/2014 Design Elements 3 12/3/2014 3D Rendering ALTERNATIVE SITE ANALYSIS • Achieve Kids • Fire Station 4 • Middlefield Ball Park (Proposed Facility) • Middlefield Ball Park (Alternative Designs) • Mitchell Park • Mitchell Substation • Covenant Presbyterian Church 4 Reich, Russ From: Campbell, Clare Sent: Wednesday, December 03, 2014 1:32 PM To: jasony©hotmail.com Cc: Reich, Russ; French, Amy Subject: City's Wireless Master Plan Attachments: Anthem contract.pdf Mr. Yotopolous, This email has been prepared on behalf of the City Manager's Office in response to your inquiries. Update on where the City is with the plan (contract attached for reference): The City entered into a contract with Anthem Telecom in April 2014. With the assistance of the consultant, the City intends to (1) assess its wireless broadband communication needs; (2) select a system of certain wireless communications facilities to be sited at specified locations that could meet those needs; and (3) develop a master plan strategy, which includes incentives to encourage the use of the Towers and collocation of third party users, when those Towers are compared to other alternatives. The compensation to be paid to the consultant for performance of the services shall not exceed $81,000, none of which has been paid out yet. The consultant has been focused primarily on data collection and the work is still in the very early phases of this effort. Please let me know if you have additional questions. Thanks Clare Campbell 1 Senior Planner 1 Planning Division 250 Hamilton Avenue, 5th Fl 1 Palo Alto, CA 94301 T: 650.617.3191 1 E: clare.campbell@cityofpaloalto.org Original Message From: Rice, Danille Sent: Tuesday, December 02, 2014 3:20 PM To: Campbell, Clare Cc: Svendsen, Janice; French, Amy Subject: FW: Voice Forward from Janice Svendsen (2105) Good afternoon Clare, The below resident left a voicemail for the City Manager regarding the status of the Anthem Wireless Telecommunication Comp Plan. "My name is Jason Yotopolous I'm a neighbor here in Palo Alto and I left a voice mail and an email for Jim last week asking for an update on our wireless comprehensive plan that anthem telecom is working on. There were a few 1 questions via email and I'm wondering if someone could get back to me today, that would be super, either via email or by phone 650-207-2210 iasonv@hotmail.com. Mainly interested where were at with anthem on that and the expected date of completion and some of the other dimensions like how much is that costing us with anthem but mainly when they're expecting to have it complete for the city. Thanks so much Janice. I look forward to talking to you this afternoon, Take care." Thank you! . 2 Reich, Russ From: Ellner, Robin Sent: Wednesday, December 03, 2014 7:35 AM To: Gitelman, Hillary; Lait, Jonathan; French, Amy; Reich, Russ; Silver, Cara Subject: Little League cell phone tower December 3rd discussion Good morning, Please see the email from Ceci Kettendorf below. (Bcptc) Thank you, Robin Robin Ellner 1 Administrative Associate I I I 1 P&CE Department 250 Hamilton Avenue 1 Palo Alto, CA 94301 PA LO A L'ro T: 650.329.2603 1 E: robin.ellner@citvofpaloalto.org Please think of the environment before printing this email — Thank you! From: CeCi Kettendorf [mailto:cecihome(agmail.com] Sent: Tuesday, December 02, 2014 5:02 PM To: Planning Commission Subject: Little League cell phone tower December 3rd discussion Dear Members of the Planning Commission: Reliable cell phone service is basic to community safety. As a Stanford nurse, I can attest to the countless lives which have been saved by access to cell phones. I open patient charts to read that patients used their cell phones to muster help when having symptoms of stroke, heart attack, anaphalaxis, diabetic stress or many other medical emergencies. Why, then, is there any footdragging about providing reliable service to south Palo Alto? We live in the heart of Silicon Valley; shouldn't Palo Alto be embarrassed by the sporadic, unreliable cell phone service we have now? Shouldn't our community, in the shadow of Stanford University, have state of the art communication access? For far too long, a small but vocal group of less thanl5 adults in opposition has managed to stymy the construction of, and diminish the design of, a cell tower that will benefit hundreds of households. Do those in opposition realize they already live in close proximity to cell towers? What a shame that the welfare of my neighborhood is compromised by proponents of bogus science! I ask you to please be guided by the countless experts with true expertese, training and experience in this field, many of whom live in the community served. I ask you to approve and build a cell tower without further delay. Do it for the welfare and safety of the greater community. Ceci Kettendorf 3719 Grove Ave Palo Alto, ca. 94303 1 650-493-0804 2 Reich, Russ From: Ellner, Robin Sent: Wednesday, December 03, 2014 7:47 AM To: Gitelman, Hillary; Lait, Jonathan; French, Amy; Reich, Russ; Silver, Cara Subject: Support the smartphone tower proposal at the little league park Good morning, Please see the email from Robert Neff below. (bcptc) Thank you, Robin Robin Ellner 1 Administrative Associate 111 1 P&CE Department 250 Hamilton Avenue 1 Palo Alto, CA 94301 T: 650.329.2603 1 E: robin.ellner@cityofpaloalto.org Please think of the environment before printing this email — Thank you! Original Message From: Robert Neff [mailto:rmrneff@sonic.net] Sent: Tuesday, December 02, 2014 10:35 PM To: Planning Commission Subject: Support the smartphone tower proposal at the little league park Dear Planning and Transportation Commission, I support the proposal for a smartphone tower at the little league park on Middlefield. It will be a benefit to the many who own and use smartphones, improving coverage especially at the new library and JLS middle school. It's part of our modern world. -- Robert Neff 3150 Emerson Street, Palo Alto robert@neffs.net 1 I do not want any cell antennas on this site 17 13% I do not want one on ball field, but on library or electric substation next to fie ld would be OK 7 5% I a ccept this new antenna at ball field, but with reservations 12 9% I fully support this new antenna at the ball field 83 65% Other 8 6% Please add any other comments you wish to share with the ne ighborhood and city officials and staff. I very rarely use my cell phone and do not care where the put the tower. I also use A TT. Good to have ce ll antenna as well I'm not concerned about the antenna's effects on health. I am just concerned that it will be unattractive at best, and ugly at worst. I use home WiFi instead of cell data. If installed, this antenna will cause many people's cell phones to work less hared, therefore expose them to less radiation. This debate is way to emotional for my taste. Either you want cell phone coverage or you don't. If you do, the NI MBY appr oach is not an option. My guess is that even the cell phone tower opponents have their discussion.. .well, on cell phones. I am very busy at work, and don't have time to take part in th e d eb ate - but I feel the entire discussion has gotten so sour that it's hurting the neighborhood. If we could make it an amicable discussion and allow those in minority to be heard, then it will go a long way. Sometimes no change is a good thing. Not on library. If it must be done , build in electric substation; ballpark would be second choice Library also ok. M ake a decision ASAP! So sorry, 1 have to admit that I haven't pay much attention about this issue in our neighborhood and don't know why we need a cell antennas at all. I don't know enough abo ut the cell services even tho ugh I do use my cell phone all the time. I am happy with my provider which I have for many years now. would like it to lo ok like a tree. I wish AT&T wo uld improve also. 1 support the cell tower/antenna and look forward to it improving connections. Although I cannot claim to fully understand the risks associate d with ce ll towers, I can understand how those living ne ar a proposed site would have concerns over he alth issue s. Some of the commentary on these threads condemning the person who raised these concerns has be en hysterical, excessively harsh and disappointing. We have asked to incorporate additional questions to this surve y to level the ground of understanding about the cell tower proposed at the Little League Ball Park, but o ur sugge sted questions are not incorporated. The re fore please take note that any survey outcome is depende nt on how the questions are posed and who have re sponded or will respond. We reserve the right for interpretation of the survey outcome. Long overdue This has gone on for too long! The ridiculous "science" behind opposition should be shot down. The City ne eds to stand up and listen to the majority and allo w this to move forward. If there is an alternative location with different zoning like commercial zoning or different way to improve the quality of transmission, I would much preferred. Do n't know the technology enough to endorse this project at this location. The energy of a 1.9 GHz photon fro m a cell phone tower as about 5 orders of magnitude less than that of visible light and incapable of doing any ionization. Why the hysteria ov er transmission. M any people have discontinue d land -line phone service (me among the m) and it is imp ortant to have good cell phone coverage in our neighborhood. The oppo sition to improved towers a ppears to be driven by unreasoning fear of technology and/or business, and to be based on spurious science. (But its few adherents are disproportionately noisy.) A ne w pe rson wa s across my street, today, making a call. Usually the person making the calls lives two houses south of me. She is on the sidewalk talking often, regardless of the weather. So, we must hav e a gap! Do ya think? It's time to move on with this proposal which may not be perfect, but is better than any of the alternatives including leaving us in a cell coverage black hole. We have a repeater in our home, provided free by AT&T . Ca rry ce llphone while walking -wa nt good coverag e Anyone who useses a cell phone receives more radiation than what will be provided by the tow er . Additionally, appropriate locations & designs DO NOT negatively affect home prices. Examples exist elsewhere. Would also like better AT&T coverage.. .. it is also bad Make a decisio n ASAP! AT&T is OK probably somewhat due to the fact that I bought one of their picocells. I think it is o nly 3G data but handles ca lls normally. The funny thing is that sometimes the 1phone connects with the picocell and other times with a to wer so mewhere out there in radio land. I think it is loosely correlated with the commute. Probably uses a tower when the tower is lightly loaded and I get 4G. Picocell when busy. I believe this is approaching a public safety issue . So ma ny residents now depend on their cell servic for their communications with the outside world. Spotty or less than reliable service ma y have a life/death impact for some one undergoing an emergency or crisis. I think the antenna should be as attractive as possible. I hope o the r cellular companies will be able to access as well to impro ve ce ll cove rage and reliability in our neighborhood. This antenna is totally not nee ded as current coverage is just fine. Abov e all else, this is a safety issue for the neighbo rhoo d. A lso , this is Palo Alto , the center of Silicon Valley, in the shadow of Stanford. Shouldn't our te chnology function well?! Verizo n not as good as AT&T (at this location) Should do what we can to enha nce cell service 110% in favor of getting the cell a ntennas at the Little League Park. Not in Ado be Meado w neighborhood) The tower is 0. 1 mile away from Fairmeadow Eleme ntary School; 0. 1 mile from Mitchell Park Library. It's a bad lo cation f or public saftey am quite unhappy with the way this issue ha s divided this neighborhood . I dont think it's a big deal, as I just got myself a repeater to improve the cell signal at my house . My hope is that we'll d ecide to go with status quo, and get the verizon etc to come up with a more environmentally fa vorable solution (maybe provide repeaters to all v eriz on customers in the area) . I ho pe that AT&T is added to the Tower Please install this 60 fo ot monstrosity in the front yard or back yard of th e CEO of Veri zon or the person who is making the most carrier money by putting this up. Please take it to their neighb orhood. It is not needed or wanted here . If someone feels strongly about this in this neighborhoo d, please put it in their front y ard. There are e nough cell towers in Palo Alto. No more! used only for travel emergencies In the interest of public safety better cell phone connections are very important A year or two ago, AT&T reception was truly awful at our house and we were very upset. We got a micro -cell to improve reception, but it was buggy. However, reception has improved since then, and we got rid of the micro-cell. l support more cell toweres where they are needed. It is very frustrating to have bad reception. Wish AT&T coverage was better in our neighborhood. Antennas still don't cover our area well. It's better tha n it wa s, but it's still not reliable. .. .as long as it is NOT near us! In Palo Verde neighbo rhoo d, want to share feedback. am no t fully aware of impact on humans but if it's not dangerous, I'm for better cov erage. Better cell reception is good but I don't want a fake tree in my neighborhood. It simply looks bad. The technology has advanced a lot recently and tho se massive cell towers are getting obsoleted. Just google "Small Cell Tower" and you will find many b etter so lutions that look nice. http://money.cnn.co m/2012/04/30/technology/small-cells/ http://www. rcrwi reless. co m/20140205/opinion/analyst-ang le -go -to -ma rket-tu ne-u ps-for-small-cel l-i nfrastructu re -players http://www. lgsinnov ations.com/blog/the-next-big-thing-in-mobile-co mmunications-small-cell-technology In fact, Verizon is deploying the small ce ll towers in A tlanta already. Why build a massively ugly cell tower whe n better solutions are just around the corner? http://www.fiercetelecom. com/story/verizon-wireless-taps-tower-cloud-its-atlanta-small-cell-network-deployment/2014- 09-09 The choices for high-speed internet to the home are just terrible in our neighborhood. The fastest DSL is slow, and cable gets bo gged down. Plus, I'm paying a lot for relatively little bandwidth. My friends in nearby cities have excellent choices . Please expedite the approval of a high-speed wireless deal for the city. I realize that it's not a simple issue and that many play ers are involved. But seriously, it's astonishing that we've been waiting for more than a decad e now. We have a cell repeater in our house because ATT service is so bad, we had no reception in our house at all . It's ludicrous that we don't have good reception in this part of PA. There's already a tower at the Fire station . While the height is a min or issue, we need better coverage here. (We used to have Verizon and coverage was OK - better than ATT - but it's been about 4 years since we switched. ) Ye s, there a re pe ople (who) strongly suppo rt wireless infrastructures, even though we may be less v oc al. My definition of civilized world are places with fast, reliable 4G coverage, so ple ase don't let Pal o Alto fall behind . , • Substantial evidence contained in written record: • Over 100 signatures against the tower • Over 130 pages of neighbor opposition letters • Over 60 pages of presentations to the City from a dozen neighbors • 70+ page Kreines & Kreines, independent expert review of Verizon application • Mark Hynes, Ex -City Attorney of Los Altos and Atherton from Atkinson-Farasyn, review of Planning's evaluation • You have on your desk: • Atkinson-Farasyn letter • Letter from Charlene Liao regarding Lighting CUP violations • In today's discussion we will cover only those items directly in purview of the PTC A categorical exemption is for a class of project that generally will not have significant effect on the environment. It does not apply if there is a reasonable possibility that the activity may have a significant environmental impact because of an unusual circumstance or cumulative impacts would be significant. • As this is a new CUP, the following classes of exemption described by staff are not appropriate: • Section 15301 "exempts operation, repair, maintenance, or minor alteration of existing structures or facilities, not expanding existing uses" • Brand "New" monopole at greater height and width with "new" equipment enclosure, expanded use. • If it is the City's position that 15301 applies, then the existing use permit's violations alone alone justify denial of the applicati on • Section 15302 "exempts replacement or reconstruction of existing structures or facilities on the same site" • Planning: "A CUP is needed to locate a WCF on a residentially zoned property and for stand-alone WCFs" which means a new structure, use • If it did apply, the proper action would be to amend the existing CUP • Section 15303 "exempts construction of limited small new facilities" and 15061 (b3) "exempts projects where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment" • Neither of these apply, given the hazardous materials inv olved 4 twa..,..,ea.,•.=,n,.mws.n.hr.c.tipitilumsameelmismzmtwarim twelenW4AfLiMfftleheMMMtIM,551ZIMffNiM.WW,I3FffrittAXIW(94iSSWOIn.MAMMMNIVA e, • The City is considering an entirely new CUP on a property that already operates under a CUP and can not just approve another CUP and paste it over three existing CUPs...it must rather take into account existing policy for the site in question. And it should not conflict in allowances, assumptions, and existing conditions assumed by the previous CUP. • The current application being evaluated...PALL authorizes Verizon to: • Expand existing light poles over the height designated by CUP 5/8/08 from 60 previously to 65 feet which would constitute a violation of the 2008 CUP • -The PALL field CUP of 2008 should be amended by the City of Palo Alto to reflect the actual light pole heights of 60.3 feet AGL regardless • Expand number and square feet of buildings on site from 2 previously (a clubhouse, square shaped building) to 5 (clubhouse, sq. building, 2 small sheds, Verizon equipment building) • -An expansion in the number of buildings and their total square footage is proposed with the "equipment enclosure". The original PALL CUP should be amended to include all five buildings in Verizon's Site Plan. • Approve the northernmost driveway off the project site as a legal entrance to PALL field . The driveway that PALL uses is on City of Palo Alto property and is not on the project site and never has been • An encroachment permit, followed by a street work permit, followed by an ingress/egress permit for use would be needed for the driveway, followed by a legal instrument like easement or covenant by which the City allows PALL to use the driveway • -› The PALL CUP of 2008 should be amended to show the correct ownership of property used by the PALL field in order to gain ingress from/egress to Middlefield Road. 9 • According to the Palo Alto Municipal Code, Title 18, Zoning: Section 18.76. 010(b)(2): • Any expansion in the building size or site area of an existing conditional use shall necessitate the amendment of the conditional use permit. Denial of an application for amendment of a conditional use permit does not constitute a revocation of the original conditional use permit. • 3 containers and two buildings are classified as "buildings" by Palo Alto Zoning Code without any permission from the City for construction or use each • "Building" means any structure used or intended for supporting or sheltering any use or occupancy. • Erecting of batting cages within 8 feet of interior side yard without a permit. As structures in an R-1 interior side yard, these are encroachments not permitted • Title 18 Zoning 18. 04.030 (134) "Structure" means anything that is constructed or erected, the use of which requires the location on or in the ground or attached to something located on the ground, including but not limited to buildings, swimming po ols, tennis courts, but excluding patios, sidewalks, driveways, or parking spaces. • Backstop and fence height not permitted by ordinance • Lighting shines in windows of homes in a violation of lighting ordinance 18.12.040. a. k • -As of 2014, the PALL field does not comply with its own CUP 0 1 1 • This project can not be approved without amending the PALL CUP, which will require dealing with PALL's non-compliance of its own CUP • A CUP (even though it is duly adopted and beyond its statute of limitations for challenges) cannot be amended unless the original CUP is brought into compliance with all regulations. • The City should attempt to amend the PALL CUP to correct all existing non-compliance issues • OR it could deny the new PALL CUP, leaving the existing PALL CUP intact but non -compliant 11 I NniNSRMWMCiNMr-IAMNP44f5PM:I.TMtMMMkOMM3,7M11:WilPRIIRCRW OMMINNEVMINMUMM4V,AIRti or the Palo Alto Municipal Co de, zo ning or a residential neighborhood • The City of Palo Alto Comprehensive Plan states 1-3 "The Plan establishes the physical boundaries of residential and commercial areas and sets limits where necessary to ensure that business and housing remain compatible. It encourages commercial enterprise, but not at the expense of the City's residential neighborhoods." • The landmark lawsuit O'Loane v. O'Rourke states "The Land Use and Community Design Element provides a "constitution" for the development of public and private property. " • This means that the property may have temporary uses, it may have conditional uses, and it may have interim uses. • But in the final analysis, the property can have no use that may conflict with or do violence to the underlying Comprehensive Plan designation, which for the proposed project is Single Family Residential • - No use within Single Family Residential Comprehensive Plan designations should be approved by the City so that the ultimate development of the property will be inhibited or impaired. The PALL field will not be sustainable forever and can be readily removed for a residential subdivision or a mansion . But a cell site is a long-term contractual use (65 ft tower, easement across only ingress/egress, building with hazardous chemicals) enforced by Federal regulation that cannot 13 co -exist with Single Family Residential on a less than three -acre site. • The Land Use and Community Design Element is clear that there are some 35 identifiable Residential Neighborhoods in Palo Alto. As a Single Family Residential property zoned R-1, this site is in a residential neighborhood • Policy L-12 specifies to "Preserve the character of residential neighborhoods by enco uraging new or remodeled structures to be compatible with the neighborhood and adjacent structures." • So the City could change the designatio n of the project site in the Comprehensive Plan to match the current use, which is Open Space and could have done so at the time of approving the PALL field and a conditional use. By leaving it as Single Family Residential in the Comprehensive Plan, the City of Palo Alto created a conflict in the project site's ultimate development • A finding cannot be made that the proposed project is c onsistent with the City of Palo Alto Comprehensive Plan • -The proposed project does not "accomplish the objectives, policies, and programs of the Palo Alto Comprehensive Plan" as it may create a fire hazard, d oes not provide for the neighborhood's general welfare and does create an unattractive and disharmon ious community 14 • Not co mpatible with residential neighborhood • - Does the proposed project involve structures that are compatible with the neighborhood? The 18 inch wide industrial monopole with antennas is not compatible with the neighborhood. The proposed equipment building is a hazard and is not compatible with the neighborhood. The proposed project is in violation o the Comprehensive Plan, and no finding can be made that: • The proposed project will further, promote and accomplish the objectives, policies, and programs of the Palo Alto Comprehensive Plan. • The proposed project will be located and conducted in a manner in accord with the Palo Alto Comprehensive Plan and the purposes of this title (Zoning) . 15 „ 11R?WaRWMWi.''?W-,AvasVS..Kk aTMNR :M i TAMM{vAT.tSkWIN'S Viffln?'BAFtCIXASCM... W • O nce up, the City won't be able to contro l the height or loading of this tower per FCC 14-153, presenting a significant City Risk Management issue • Once approved, the City of Palo Alto won't be able to review further additional growth at this site (unless "substantial change" ie >20 ft in height) • Even if Verizon signs a Development Agreement with the City of Pal o Alto, that binding contract would not override FCC Law 14-153, which would allo w Verizon and/or its lessees (other carriers) to put whatever they want on or next to the monopole without a discretionary permit from the City of Palo Alto. • No requirement for yet another CUP in the future would stop a carrier from merely pulling a building permit and placing more equipment on the project site, or Verizon growing from 3 antennae to 6 antennae • -This is a growth inducing project that should be reviewed by the City of Palo Alto on the basis of reasonably forseeable cumulative impacts from a p ossible cellular antenna farm at the project site (again, CEQA implications). • ARB Chair voted against, forseeing "Federal -City estoppel," whereby the City may need to "cede all local control" to a Federal law that gives no local standing. "We must hope for the best but plan for the worst," as we won't get definitive legal interpretation . "This (LL Ballfield celltower) decision by the City will be a 20-30 year decision," said Chair Lippert 17 • FCC 14-153: "Super Bowl of regulatory pro ceedings for the wireless infrastructure industry" • PCIA President Adelstein: Celltower companies "getting pounded by the NIMBYs...can say 'look, it's federal law'." • Verizon's claim of disallowed change when a modification "defeats the concealment elements" is false hope: • "Modification is insubstantial as long as the concealment elements are maintained," with "camouflaging paint" cited as such an element • Mainly for "facilities designed to look like something other than a wireless tower," like a tree or a flagpole • Best, Best, & Kreiger telcom lawyer evaluation: "The FCC did not clarify how formally a government must establish 'concealment elements' or what modifications would cause these elements to be 'defeated'. This could lead to disputes." • -Kreines believes that Verizon is building a monopole that will serve as a platform for the attachment of much more equipment • This property has been called the "crown jewel" by numerous cellphone companies who have started applications over the past 5 years • Willing tenant with a rotating, non-resident Little League Board • Plan page A-4 indicates three components with dashed lines to connote "future," which means that Verizon is asking the City to approve 3 of the 7 of the array components (42% ) which are not needed at this time. If Verizon is going to show "future" equipment, shouldn't it show future antennae (and RRUs and TMAs) that the equipment will be neede d for? And identify the "future" tenant now? 18 • -Verizon claims it will fit three antennas and associated TMAs and RRUs within a three-foot by five-foo t radome shield, but Kreines & Kreines, Inc. does not believe that this is possible. • The size of the antennae as 3x5 feet won't accommodate PCS, AWS, 700 MHz. • Verizon can probably not deliver its 3G (not to mention 4G) services from 3 antennae along with accompanying RRUs and TMAs all crammed within a 3 by 5 foot radome shield. A signal from this limited facility would not serve the coverage shown in the Verizon "Coverage with Meadow Middlefield" depictio n. • RRUS are mounted behind the antenna in Verizon sites, thereby requiring more room in the radome shield • This would require more like 9 antennae plus several Remote Radio Units and 6 Tower Mounted Amplifiers so how large will it really be? • The City should require the applicant to show the antenna/radome shield design and how the equipment fits • The 3 foot diameter by 5 foot long radome shield pictures scale to 4 feet in diameter by 8 feet long, which means that what is drawn is much larger than what is described. Two arrays of antennae are shown vertically stacked, meaning six antennae, which would make this a six antennae project rather than a three antennae project . This is consistent with original notifications to the public and to each person in a City Department listed on a City Routing Slip. • Now to FCC 14-153: Would another carrier's additional water -heater sized bulb placed ont op the existing tower constitute a "substantial change"? What about bel ow? • Or if Verizon just made their bulb wider to accommodate the equipment it really needs? Or taller? Can they do it without the City's approval now that FCC 14-153 is in place? 19 From: Charlene Liao [mailto:xcliao@yahoo.com] Sent: Tuesday, November 25, 2014 1:13 PM To: Gitelman, Hillary; ptc@cityofpaloalto.orq Cc: Reich, Russ; Charlene Liao Subject: Little League Ballpark Lighting CUP violations Dear Ms. Gitelman, This email is in response to your letter of October 7th replying to our neighborhood's request from Gen Isayama that the Palo Alto Little League lights should no longer shine in neighbors' houses and in response to Russ Reich's email of October 16th addressing my complaint of an empty Little League field with lights on in the evening of October 13th Attached please find 3 attachments in this email: - Photos of the Ballpark lights shining on and into neighbors' houses across Middlefield Road - Photosims of the lighting from the 08PLN-00024 (Ballpark lighting) CUP project description - The letter of March 31, 2008 referred to in the Lighting CUP conditions The Palo Alto Little League Lighting CUP was signed by Amy French and granted on 5/8/08 under nine conditions, three of which were: 1. "The proposed recreational use shall operate in substantial conformance with the project description received January 29, 2008, and clarify letter received March 31, 2008, on file with the City in planning application no 08PLN-00024." 2. "The proposed lighting shall be on only when needed for a night game. Night games shall be allowed only twice a week, and will go no later than 9:00 pm, except once every other year for the regional all-star tournament in July, when games would be allowed until 10:00 pm. 3. "The proposed project shall comply with the City's Noise Ordinance." I would like to call out violations to the CUP again in the following order: Regarding the noise #3, there have been clear noise issues with the speakers atop the 30+ foot tall chain link fence facing the neighbors across the street, as can be seen from letters from neighbors in the 08PLN-0024 itself at the time of the application: "The public address system has become so loud that we had to call the police. They start early in the morning during the summer and it's so loud that we can hear it in our home. We have been woken up in the morning from the loud speakers and that is not a fun way to start a day. It also prevents us from enjoying our backyard because the PA system is louder than our conversations outside." 1 - Karen Jew on East Meadow Drive These noise issues have continued since 2008. Pete Hazarian of the Police Department on February 26, 2008 emailed the following: "The Police Department's concern with the proposed installation of new baseball field lighting at 3672 Middlefield Road would be the additional noise generated by participants and spectators during the evening hours." In the application, Owen Byrd in his email of March 31st, 2008 states, "The Little League Park sound system has been specifically designed to control the sound within the Little League property through the use of short -throw speakers that are aimed toward the ground. The sound system is not used on a continuous basis, but is used in short increments for announcements. The system amplifiers have been equipped with limiters to ensure that the sound levels at the property line can not exceed 5db above average ambient levels..." As a neighbor across the street from the Little League Ballpark, I can assure you that my neighbors and I hear every name in the batting lineup on Saturday mornings... With the lighting #2, there are two substantial issues: A. The lighting shines directly into the windows of the houses hundreds of feet away across the street on Middlefield Road, as can be seen clearly from the pictures attached. This is in violation of the City's Municipal Code. The ARB requested that a photometric study be done by the Little League Ballpark to assess this and then to rectify it with light shields. The neighbors formally requested this in the ARB meeting on September 18t and again subsequently in writing on September 24th by neighbor Gen Isayama but nothing has been done to date. Regarding this issue, please find the photosimulations from the original project description attached and submitted at planning's by the applicant at planning's request....you can see that they stipulate that no light should be shining anywhere near the houses across the street...which is clearly not the case from the pictures in the attached presentation to ARB on Sept 18, 2014. Ms. Gitelman, you did not address this issue at all in your reply of October 7th to my neighbor. Please reply with the set of actions and timing to rectify this. B. As the old Little League game rosters attest and as admitted by the Vice -President Lewis of the Little League Board in the ARB meeting of September 18th, "there was a loss of knowledge of the CUP and over the previous years there were definitely violations." Today, the Ballpark lighting continues to be on when nobody is on the field, which is clearly a violation of the CUP conditions as well as a tremendous waste of electricity. Following is an example of time when lights on ballpark were observed within a one -month period: Wed 2/19 9:10 pm (game) Friday 2/21 9:10 pm (game) Tues 2/25 8:15 pm (no game) Wed 2/26 6:53 pm (under heavy rain and nobody was seen in field) Thurs 2/27 9:10 pm (game) Friday 2/28 no lights (evening game scheduled but rained out) Sunday 3/2 8:55 pm (game ended at 7:52 pm but the lights continued on for one more hour) 2 Tuesday 3/4 8:20 pm (no game) Wednesday 3/5 9:10 pm (game) Monday 3/10 9:11 pm (game) Saturday 3/15 8:40 pm (no game) Monday 3/17:9:10 pm (game) In reference to Russ Reich's e-mail to me on Oct 16, 2014, let me remind us that the CUP doesn't say the lights can be on two nights a week until 9:00 pm. There is also no language about "clearing the field" or lights allowed to be on until 9:15 pm. The CUP says: "The proposed lighting shall be on only when needed for a night game". It means the lights can only be on for games, no more than twice per week and games cannot go later than 9:00 pm. Clearly if there is no game going on, the lights cannot be on. Period. As a final reminder, this CUP is a lighting CUP, not a ballgame-playing CUP. The CUP that allowed the use of this single family R-1 zoned property as a Ball Park was issued in 1952, and one of its conditions was that there are never to be lights on this property. Regarding item #1, the letter of March 31, 2008 (attached) provides further clarification: under Limitation of Use of Proposed Lights, "Palo Alto Little League agrees that the lights would be used only when needed" and further adjusts hours of use on Fridays and Saturdays only "from dusk until 8:30 pm." The lighting "shall be on ONLY when needed for a night game," which means, that lights are allowed with play at night no later than 9 pm (or 8:30 pm on Fridays and Saturdays, with none on Sundays). These lights seem to be on automatic timers that go off at 9:15 pm on days where games were originally scheduled but cancelled or rained out, and on evenings where games are complete by 7 or 8 pm. If there is no game being played, no lights should be on, regardless of how the games are scheduled or canceled. Lights should be off by 8:30 pm or 9 pm depending on the day of the week, including time needed to clear the field. I look forward to your response as to how these get addressed expediently. Sincerely yours, Charlene Liao 3 08PLN-00024, Little League Lights, 3672 Middlefield Avenue Page 1 of 1 Cutler, Jennifer .. �....,T _ From: Owen Byrd [obyrd@byrddev.comj Sent: Monday, March 31, 2008 12:32 PM To: Cutler, Jennifer Cc: Matthew Passel!; Randy Popp Subject: 08PLN-00024, Little League Lights, 3672 Middlefield Avenue Jennifer: Here is the additional information that you requested in your letter dated February 28, 2008. J._ Photos Please see attached sheet that includes two (2) photos of the proposed lights, as well as photos of the site. 2. Public Address System Information The Little League Park sound system has been specifically designed to control the sound within the Little League Park property through the use of short -throw speakers that are aimed towards the ground. The sound system is not used on a continuous basis, but is used in short increments for announcements. The system amplifiers have been equipped with limiters to insure that the sound levels at the property line cannot not exceed 5db above average ambient levels, to comply with the City of Palo Alto Noise Ordinance. 3. Limitation of Use of Proposed Lights Palo Alto Little League agrees that the lights would be used only when needed. In my project request letter dated January 29, 2008, we proposed the following hours of use: Houts of Use if..Llghts: Monday to Thursday, dusk until 9:00 pm. Friday and Saturday, dusk until 8:30 pm. We propose one exception to these hours: Dusk until 10:00 pm for the regional all-star tournament that Palo Alto hosts every other year in July. In the past, all games played in other host cities have ended by 9.30 pm (after starting at 7:30 pm), but regional Little League rules require that games are allowed until 10.00 pm. Please confirrrt for me that the Information provided in this email completes our application and describe the remaining review process for this project. Thanks, Owen Owen Byrd President Byrd Development, LI-C 418 Florence Street Palo Alto, CA 94301 Phone: 650-533-0286 • Fax- 650-32.5-9041 • Email: obyrd4byrddev.com Our website: !vw.byrddgL c2m CONFYOENTLAL COMMUNICATION: This e-mail and any attachments are intended only for the persons named above. If you are not an Intended recipient, or the person responsible for delivering this e-mail to the Intended recipient, please know that any distribution or copying of this e-mail is strictly prohibited. If you received this e-mail in error, please immediately notify sender. Thank you. 4 Violation of Existing CUP for Ballpark Lights ARB Presentation re: Little League Ballpark Celltower Proposal at 3672 Middlefield Road, Palo Alto September 18, 2014 Recurrent Violations of Existing Lighting CUP • "The proposed lighting shall be allowed only when needed for a night game. Night games shall be allowed only twice per week, and will go no later than 9:00 pm ., except once every other year for the regional all-star tournament in July, when the games would be allowed until 10:00 pm." • Frequency of use per week well beyond twice/ week • Lateness of hour beyond 9pm • Documented history of complaints, specific instances reported 3/3, 5/1, and as recently as last Saturday • See past 4 years of Little League game schedules to confirm recurring violation over many years 6 City Lighting Requirements Municipal Code 18 .12 .040 Site Development Standards (a) Site Specifications, Building Size, Height and Bulk, and Residential Density (k) Lighting • Recreational and security lighting shall be permitted only so long as the lighting is shielded so that the direct light does not extend beyond the property where it is located . Free-standing recreational and security lighting installed on or later than March 11, 1991 shall be restricted to twelve feet (12') in height. Direct light from outdoor fixtures shall only fall on the walls, eaves, and yard areas of the site on which it is located. • Outdoor fixtures shall have lens covers or reflectors that direct the light away from the neighboring properties . • Note: All following photos taken between 8:30-9:30pm last Saturday evening with no flash Middlefield R oad on a Saturda Ni:ht Residence #1: 3739 MIDDLEFIELD ROAD -420 feet from light source -120 feet from Ballpark property border 3739 Front of house (ballpark lights off) 3739 Front of house (ball rk li:hts on 3739 Middlefield Road (ballpark lights off) WO 3739 Middl efield Road (ballpark lights on) 3739 Middlefield Road (ballpark lights off) 3739 Middlefield Road (ballpark lights on) • 3739 Middlefield Road (2nd floor view of ballpark at night) a Isayama Residence: 3739 Middlefield Road (light shining into bedr oom) 19 3739 Middlefield Road (light shining onto bedroom walls). Neighb or Impact: Lighting up family rooms 420 feet away 3739 Middlefield Road (ground floor room when ballpark lights off) 3739 Middlefield Road (lights shining into ground floor room). Neighbor Impact: Lighting up bedrooms 420 feet away 22 Residence #2: 3751 MIDDLEFIELD ROAD • 450 feet from lightsource • 120 feet from Ballpark property border 3751 Middlefield Road view from ground floor of ballpark when lights off 3751 Middlefield Road view from ground floor of ballpark when lights on . Neighbor Impact: Lighting up children's bedroom 25 Residence #3: 3737 MIDDLEFIELD ROAD • 650 feet from lightsource • 270 feet from Ballpark property border 3737 Middlefield Road Driveway (with ballpark lights off) 3737 Middlefield Road Driveway (with ballpark lights on): 575 feet away 3737 Middlefield Road Driveway (with ballpark lights on): 600 feet away 3737 Middlefield Road Driveway (with ballpark lights on): 625 feet away Inside 3737 Middlefield Road Garage (with ballpark lights on): 650 feet away Neighbor Impact: Lighting the Garage 650 feet away Little League Continues to be in Violation of its Lighting CUP • This presentation constitutes a f ormal complaint of violation by residences at 3751, 3739, 3737 Middlefield Road of violati on of Municipal Code 18 .12.040 (a)(k) Lighting code by the Little League of Palo Alto • Little League is requesting approval for a new CUP • The violation of the first CUP must be in place before the City contemplates another CUP on top of the one currently in violation • Once cured, the original CUP must be amended, since the tower of 60. 3 feet would be replaced by a larger 65 foot one and 440 square feet of equipment shed added. • We can't ignore the original CUP for lighting a ballfield when what is being incrementally created is a multi -carrier, multilight pole revenue platform that has nothing at all to do with playing baseball . • Comprehensive Planning is required, not simple design review Poletop Luminaire Assembly 2. Wire Harness (Onside Pole) Typical Light -Structure Greenm System Detail - 3 Luminaires 3. Electrical Components Enclosure -eolic?ts Capacitors —Smart Lorne Control —Fusing —Primary Landing Lugs —One Disconnect Per Circuit Per Light —Structure Green11 System —Grounding Lug 4. Galvanized Steel Pole (1, 2, 3 or 4 Sections) Jacking Ear Ground Level Concrete Bccktill 5. Precast Concrete Base -- - Centrifugolfy Spun, Prestressed %f/� ..... FRONT VIEW FIELD SIDE Green Generationni Luminaire Attachment Bracket 3'-4 1/2" (1029mm] (3848mm] (810mrn] Removable Pole Cop W re Acceea Nub Nanetwte with Grounding Lug Access Lifting Bar Hole Above Ground Access Hole Customer/Contractor supplies' -Grounding rod and connection to system grounding lug —Concrete backfilt Underground wiring -Service entrance 11.---. Underground Access Hole SIDE VIEW -+— Grounding Rod y & Connection System Notes: 1. This drawing is not to ?cote. * This dimension for reference only. Variances may occur depending on steel pole tolerances, concrete tolerances, galvanizing thkknese, hole depth accuracy. 3. Musco provides o have installation bar, on installation level modified for taper, and installation wedges, 4, Provffsions for auxiliary equipment such as speaker or security righting con be incorporated. LSG-03 5. Copyright 1991, 2005 Musco Lighting- Patenla issued and pending. 34 r E QUIPMEN T LI T FOR A REAS S HOWN Pole Luminaires WY LOCUM' 6U CEME YiWrR6 9.E ATI N HEIGHT LAMP TYPE OTT.; JO MI6 _gm OTIEI not e 2 Al -A2 60' - 60' 1500W he 3 3 0 2 B1-82 ea 60' 15D0Wha 5 5 0 TOTRLS 16 J 16 0 4 t Preliminary Design Inf ormation- Foundation and el ectrical requirements sh ould be confirmed prior to final design and/or production . .24 432 H32 4 31 428 427 426 27 .25 4 439 #t0 433 429 {27 ,29 431 433 4 30 430 +32 435 435 AI F 40 .56 _52 + 41 435 433 433 436 439 II '4 9 $ 455 ,54 . 0 ,40 433 434 438 AO 459 461 .57 + 56 +52 438 430 430 435 439 434 SCALE IN FEET 1:50 0' 50' 100' .24 425 430 B2 GREEN GENER*111011 LIGHTING" GUARANTEED PERFO RMA NCE ILLUMIN ATIO N S UMMARY Baseball Similar Scan Enter praject nam e, city a nd st at e here Bas eball • Size: 20072007200' - 60' Basepath • Grid Spacing = 20.0 ' x 20 .0' • Values given at 3.0' above gr ade - Luminaire Type: Green Generation Rated Lamp Life: 5000 hours - Avg L.rmensl'Lamp: 134,000 CONSTAN T ILL UMINATION HORIZONTAL FO OT-CANDLES I nfield Outfield No. of Target Pant s: 25 73 Average: 50.5 30.6 M aximum: 61 40 Minimum: 34 17 Avg/Min: 1.49 1 .82 Max/Min: 1,7e 2.38 UG (Adjacent Pls): 1.51 1.61 C V: 0 0 A^r age Lamp Tat Factor: 1 .000 Numb er of L aainairesz 16 Avg Mb Co ns umpti on over 5000 hours: 24.96 Guar anteed Performance: The CONSTANT ILLU MIN ATION des cribed above is guar ante ed for the rated lif e of the lamp. Field Measurements: Averages shall be +/-10% in accordance with IESNA RP -6-01_ Individual measurements may vary from computer predictio ns . Ele ctrical System Requir ements: Refer to Amp erage Dr aw Chart and/or tin e'Mu sco Control Syst em Summary' for electrical sizi ng. In stallati on Requir ements: Results assume N- 3%. nomin al voltag e at line side of the b all ast a nd structures loc ated within 3 f eet of design location& By Rian Leedom Date: 03 -Oct -05 Fl e #: 1 .15726 Po tato:eh:m(5) *dimensions are relative to 0,0 refeaenae points) ® Not to be r eprod uced in +,i'hole or part without the written consent of Musca Lighting. 01981, 2005 Musco Lighting J 35 Print Date (031O U1200$} & Time (11:01) 4, EQUIPME NT L1arT F OR AREAS SHOWN Pole Luminair es cry � » TI r 1}L l� � 2 AI -A2 60' - 6d 1500W RE 3 3 0 2 81-B2 60' - 6d 1500W MZ • 5 5 0 q TO TALS 16 i6 0 f�:D5 A6 . as -44. 05 44. 06 }i.07 44.08 .44.06 ).07 0. 06 Preliminary Design Inform ation- F oundation and electrical r equirements should be confirm ed pri or to final design andf or production . -P-°6-41j26-42;- 6-43"- „__t57 07 "Np_06 �j1.05 x_05 B1 Al • p.o4 62 ;1. .02 p06._I.Oi...J1.OS._�. OB.. SCALE IN FEET I :100 \ Q5 `-406 100' 200' A2 `1.06 -44.09 44 .09 if x:08 .0.10 x_10 Gu ar ant eed Performanc e: The CONSTANT 40.08 ILLU MINATION described above isguar anteed for the rated life of the lamp. Fi eld Me as urements: Averages shall be 41-10% in acc orda nce with IESNA RP -6-01. Individual measurements m ay v ary from comp uter pr edictions. Electrical System Requirem ent s: Refer to Amp erage Draw Ch art andlorthe " Musco Control System S ummary" for electrical sizing. Insta/tat ert R equirements: Results assume +r- 3% nominal voltage at line side of the ballast and structures located within 3 feet of design l ocations. 0000 musco. GREEN GENERATION LIGHTING' GU ARANTE ED PERFORM ANCE ILLUMI NATION S UMMARY 'LSO' Spill Similar Scan Enter proj ect nam e, city and stat e here 1 Se' Spill • Grid Spacing = 30 .0' • Values given at 30 above grade • Lue inair e Type: Gre en Generation • Rated Lar np Lif e. 5000 hour s • Avg Lumens/Lamp: 134 ,000 C ONSTANT ILLUMIN ATION HORIZ ONTAL F OOTCANDLES St atistic al Area - No. of T arget Points: 56 Average: 0.063 MBA MUM: a..1.1 Minimum: 0 .02 Av erage Lamp Tilt Fact or: 1.000 Numberof Lumi naires: 16 Avg KWh Consumption ow.ar 5000 flours: 24.96 By: Rian L eedom Date: 03-Cci-05 Fil e 1€:115726 Pole location(s) 4d"mensions are relative to 0,0 reference p irel(s) hFatto be reproduced in whole or part Without the written consent of M usco Lighting. ©198t, 2005 Musc o Lighting t 36 Print Dat e (03!0c1t2005)8 Tine (11:01) EQUIPMENT L1r F OR AREAS SKOV4 N P ole Luminaires CRY 10C1/411 2l SIDE F111 ' p MS INS GRID CIFER GAGS 2 AI -A2 6D - 60' I 1500WhQ 3 3 0 2 1 91-192 6D 60' 1500WKZ 5 5 4 4 TO TALS 1s i6 0 i 43. 42 0.48 3. 49 43.46 4}.41 SCALE IN FEET 1 : 100 • A2 Prelimin ary Design Informati on- Foundation and electrical requirements should be confirmed prior to final design andfor production. -PAP_ .x.46 .p 46 -x`40 "7 .33 x .27 `tip.17 •?..26 -4.10 �i 4Ca Alvv._p. 28_4}.41,0_49_x.54._40_49_ pAs 10a 206 p 32 `ko.39 x.48 x.66 r}.73 .7S X7 .75 ip 62 A69 }1.61 )3:61 jF55 COCO MUS CO. GREEN GENEIL UON MUM - GU ARANTEED PERF OR MA NCE ILLUMINATION S UMM ARY ISO ' Spill Similar Scan Enter proj ect nam e, city and stat e here 150• Spill -Grid Spacing = 30 .0 ' - Values given at 3.0' abo ve grade • Luminaire1'ype: Green Generation • Rated Lamp Life: 5000 hours • Avg LumenslLamp: 134.000 CONSTANT ILLUMINA TION M AX VE RTIC AL FOOTCANDLE S Statistical Ar ea No . of Target Point s: 56 A verag e: 0 .401 Maximum: 0.75 Minimum: 0 .08 Averag e Lamp Tilt Factor_ 1.000 Number of Luminair es: 16 Avg KWh Consumption over 5000 hours: 24.96 Guar anteed Performance: Th e CONSTANT !LLLIMIN AT1 ON de scrbed above is guaranteed for tl 'e rat ed lif e of the lamp. Field Measurements: Aver ages shall be 4-10% in ac oordar oe with IESNA RP -6-01. Individual me asurements may vary from comput er predictio ns . Electrical System Requirements: R efer to Amperag e Draw Chart andtorthe " Musco C ontrol Syst em Summary" for electrical sizin g in stallation Requirements: Results assume +/- 3% nominal voltage at line side of the ballast and stru ctures located within 3 f eet of design locations - By Rian Leedom H at e: 03 -Oct. -05 File #: 115726 Pole location(s) • dimensions are relative to 0,0 reference point(s) ® Not to be ieproduoed in %%bale or part vrithout the written consent of Musco Lighting. 01961, 2005 htusc o Lighting • 37 Print D al e (0310c1P2005) & Tmne (11:01) Al ;F— —* A2 3d' Prelirnin ary Design Information- Foundation and electrical requirements should be confirmed prior to fin al design andlor producti on. Baseball 'noar200' - 00. Basepaib SCALE IN FEET t : 50 50' 100' N. 38 00 0 mus co.° GREEK G®IEIIGnIfh LIGHTING" GUAR ANTE ED PERFORMANCE EQUIPMEN T LAYOU T S outhern Pines Youth Fi eld Similar S Enter project name, city and state here INCLUDES: -Baseball El ectric al System Req uirements: Refer to Amperage Draw Ch art andfcr the "Musco Control Syst em Summary" for electrical sizing. Installatio n Requirements: R es ults assum e +/- 3% n ominal voltage at lin e sid e of the ballast and structures located within 3 feet of design locations. E QUIPMENT LIST FOR ARE AS S HOWN Pole Luminaires Cre toGAlCOH sae a n 1 WOW PO 6 2 Al -A2 60' - 40 1500W M7 3 2 91-B2 60' - 60 ' 15004V MZ 5 T OTALS 16 4 SINGLE LUMINAIRE AMPER AGE DR AW CH ART Ballast Specificatio ns Line Amp erage Per L uminaire (90 nin PwrerOel °r1 4max draw) Single Phase Voltage 120 206 2241240 277 347 364 415 480 ce0) op) nu 001 @H 00 (101 011 e a) Max - 4,6 7.7 7$ 8.5 5.1 - - 3.7 1500 wail M2 Min 11 .7 6.7 6.0 59 5.1 40 _ X X 2.9 By: Ri an Leedom Date: 03 -Oct -05 File*: 115726 Pole Icc alion(s) 4 dimen sions are relative to 0,0 re ference point(s) Not to be r eprod uced in whole or part with out th e written consent of Musco Lighting. (1981, 2005 Musco Lighting Print Dat e (03fOctr2A05), LTime (11,01) Appeal of ARB decision to approve Verizon proposal Public comment period Frank Ingle, Ph.D., PE Palo Alto CA 12-3-2014 Verizon cellphone tower proposal was not ripe for decision by ARB No document change control — what was actually approved? One tower or two? Diesel or H2 fueled backup? Inside or outside installation? Roof or no roof? Safety: What happened to the principle of choosing the least hazard? Highly flammable compressed H2 close to grove of trees, Equipment specified for industrial site only, Not practical to refuel at site. Daily Post article: Belmont rejected cellphone shack i "Resident frustration with lack of transparency in the City of Palo Alto planning process; Staff is unable to substantiate claims of a lack of transparency regarding this case. " Example of lack of transparency: "The ARB approval has given the applicant the choice of using hydrogen fuel cell or a diesel generator for backup power supply. 11 The ARB approved the Verizon plan by a 3-1 vote. After the vote the chairman said he would prefer that diesel be added as an option. This is his opinion, and was not voted on by the ARB. Compressed hydrogen Fuel cell equipment: NON-RESIDENTIAL USE ONLY per mfgr. No record of prior use in residential wireless site Presents unnecessary fire hazard Truck cannot navigate easement to refuel Drawing showing tortuo us access to shack for refueling Cellphone tower in line of trees and equipment clo se by Hydrogen fire would be directed upwards toward tree crowns. Hydro gen fire is largely transparent, and extends higher than visible flame. This picture sho ws result of experimental rupture of tank. H2 fires canno t be put o ut. Procedure is to cool remaining tanks fro m a distance to prev ent them fro m blo wing out as well. Equipment shed marked "outside" No roof? 54'_0" j F 4ANN— Ar_ GATE LIE ID LIE taa 1,1 �aa X MAC IECN FLINT 0) I I - a. 3311221 MOO {Ai) i HS*P Ei rH. PIE.1,2 , :— 11 P14PR,OP OSID3 TODOR E JI13 14E 1T Le uT -. ,-, 1—•-1 ° *WE& err __e - !atiAr:. liourniesW a snows -or 9 e•,rr ~24 mall t ar H ECHT e !-4' r-e- H yr \ Equipment shed Inadequate clearance from storage container No room on pad for truck to turn around Hinged roof in case of explosion? (shrapnel?) ' I 1 SWAM o wrirear ERIZON +{IREySS1. EQUIPMENT AREA NOTE: E4S14 416 71. 74 AB In U6T Raft .7f DK sawn . I f Daily Post Nov. 19, 2014 d 1. Staff report shows answers to citizen comments do not make sense Q: Alternate cell tower sites located in the vicinity (60 -foot tall buildings within 1/2 mile) o Loral on Fabian, o Cubberley site at 2500 ft away, o Middlefield/Charleston Shopping Plaza at 1500 ft away, o Mitchell Library roof, o East Meadow Utilities Substation 60 feet away A: There are no other structures in close proximity to the little League ball park that would provide enough height in the appropriate location to meet Verizon's coverage needs. Loral, Cubberley, Charleston Shopping Center, and the Mitchel Park Library are not tall enough. There are no fitting alternate sites. This part of town has very few tall buildings and none are close by. The ballpark site has no tall buildings. Thus, the Staff report dodges the proposed alternatives with non - answers. Recommendation: Verizon pro posal was not ripe for appro val. Return application to Verizon to resolve problems and then to City to roll up present designs into the version to be reviewed by ARB. ATKINSON . FARASYN, LLP ATTORNEYS AT LAW REPLY TO: MARC G. HYNES 660 WEST DANA STREET P.O. BOX 279 MOUNTAIN VIEW, CALIFORNIA 94042 TELEPHONE (650) 967-6941 FACSIMILE (650) 967-1395 December 3, 2014 Chair Mark Michael Commissioners Michael Alcheck, Kate Downing, Adrian Fine, Przemek Gardias, Eric Rosenblum and Greg Tanaka Palo Alto Planning & Transportation Commission City of Palo Alto 250 Hamilton Avenue Palo Alto, CA 94301 J.M. ATKINSON (1892-1982) L.M. FARASYN (1915-1979) Re: Conditional Use Permit (CUP) application for Verizon Wireless Telecommunication Facility at Palo Alto Ball Field, 3672 Middlefield Road, Palo Alto, CA Dear Chair Michael and Commissioners: I represent Clearlight Ventures and submit this letter on their behalf regarding the community's objections to the referenced CUP application. It is our position that the proposed findings in support of the CUP, Exhibit E to the Staff Report, are inadequate. Further, the majority of the statements are not supported by substantial evidence. As explained below, and supported by the written materials and arguments which will be presented to you at the public hearing on December, 3, 2014, neither of the two findings required for the issuance of a CUP can be made. First, the finding cannot be made that the CUP will not be detrimental or injurious to property or improvements in the vicinity, and will not be detrimental to the public health, safety, general welfare, or convenience. (Section 18.76.010(c)(1), Palo Alto Municipal Code.) Second, the finding cannot be made that the CUP will be located and conducted in a manner in accord with the Palo Alto Comprehensive Plan and the purposes of the Zoning title. (Section 18.7 6.010(c)(2).) The City staff has failed to analyze the significant environmental impacts of the cell tower project, including particularly, seismic safety issues, and hazardous materials use on the property which is the subject of the CUP. The staff asserts that the application is categorically exempt from the provisions of the California Environmental Quality Act (CEQA) based upon sections 15301 through 15303 and 15061(b)(3) of the CEQA Guidelines. As explained below, there is substantial evidence showing that this is not the case. Further environmental analysis is required. r_. 10 Chair Mark Michael Commissioners Michael Alcheck, Kate Downing, Adrian Fine, Przemek Gardias, Eric Rosenblum and Greg Tanaka December 3, 2014 Page 2 A categorical exemption is an exemption from CEQA for a class of project that generally will not have a significant effect on the environment. Categorical exemptions represent activities that generally do not result in significant environmental impacts. A categorical exemption does not apply if there is a reasonable possibility that the activity may have a significant environmental impact because of an unusual circumstance or cumulative impacts would be significant. Two of the classes of exemptions described in the staff report Sections 15301 and 15302 are not appropriate because this is a new CUP. Section 15301 exempts operation, repair, maintenance or minor alteration of existing structures or facilities, not expanding existing uses. The staff report at page 2, describes the project as the installation of a 65 foot tall 18 inch diameter monopole and associated ground -level equipment enclosure. This "new" monopole replaces an existing 60 foot tall field light standard. The report states that "The monopole would be thicker (by 6 inches) and taller (by five feet), than the 12 -inch diameter 60 -foot tall, light pole it would replace...A new equipment enclosure (442 square feet of floor area) would house the ground mounted equipment and the backup hydrogen fuel -cell emergency power generator." Section 15301 does not apply. Assuming for the sake of argument that existing structures or facilities are involved here, then it is submitted that the appropriate action should be an amendment to the existing CUP for the project site pursuant to the provisions of Section 18.76.010(b)(2) which provides that "Any expansion in the building size our site area of an existing conditional use shall necessitate the amendment of the conditional use permit." If it is the City's position that Section 15301 applies, then the arguments and documentation submitted regarding the existing use permit alone justifies denial of this application. Section 15302 exempts replacement or reconstruction of existing structures or facilities on the same site. Page 1 of the staff report in the Executive Summary describes the project as "the Verizon Wireless telecommunication facility (WCF) which involves the installation of one 18 inch diameter 'stealth' cell tower monopole (with three antennas on top within a radome) replacing one existing ball field light tower in the same location, with associated enclosed WCF equipment at grade. A CUP is needed to locate a WCF on a residentially zoned property and for stand-alone WCFs." Again, the new CUP describes a new structure and a new use. Section 15302 does not apply. If it did, the proper action would be to amend the existing CUP as pointed out above. Section 15303 exempts construction of limited small new facilities, installation of small, new equipment and facilities in small structures, and conversion of the use of small existing structures. Section 15061(b)(3) exempts projects where it can be seen with certainty that there is no possibility that the activity in question may have a significant N i Chair Mark Michael Commissioners Michael Alcheck, Kate Downing, Adrian Fine, Przemek Gardias, Eric Rosenblum and Greg Tanaka December 3, 2014 Page 3 effect on the environment. Because of the significant environmental issues documented in the presentation submitted by the community, neither of these exemptions apply. Attention is invited to the Report prepared by Kreines & Kreines, Inc., incorporated by this reference and specifically observations regarding the hazardous materials involved in the hydrogen fuel -cell proposed as part of the project (pages 33 through 36) and letters dated September 1, 2014 from Mr. Peter Xu (pages 98 through 101) and email communication dated September 22 from Dr. Frank Ingle (pages 112 through 114.) Attention is invited to the letter from Dr. Susan Wong dated September 5, 2014 and its incorporated attachments regarding seismic safety concerns of the cell towers (pages 133- 150.) The foregoing constitutes substantial evidence that the proposed CUP will have a significant effect on the environment requiring a more detailed analysis pursuant to CEQA. Safety of the citizens of Palo Alto is, of course, a paramount concern. The third sentence of the Introduction to the Comprehensive Plan confirms this: "We aspire to create a safe, beautiful City for ourselves, our children, and future generations." As shown from the documents and arguments submitted by Clearlight, the proposed CUP is not in accord with the Comprehensive Plan. MGH/d CITY 0 - PALO ALTO City of Palo Alto (ID # 5095) City Council Staff Report Report Type: Consent Calendar Meeting Date: 12/15/2014 Summary Title: Park Improvement Ordinance for Bowden Park Title: Adoption of a Park Improvement Ordinance Approving and Adopting a Plan for Improvements to Bowden Park From: City Manager Lead Department: Public Works Recommendation Staff recommends that Council adopt the Park Improvement Ordinance for playground equipment, retaining wall, furnishings, landscape, irrigation, and pathway improvements at Bowden Park (Attachment A). Background Under the Charter, a Park Improvement Ordinance is required to be adopted whenever any substantial building or construction project may affect the use, protection or enjoyment of parks or open space lands. Capital Improvement Program funds in the amount of $332,000 for the Bowden Park Renovation project (PE -13008) have been approved by the Council for park design and construction. The renovation includes infrastructure and maintenance repairs and modifications, which serve as sustainability and aesthetic enhancements to the park. Discussion The renovation scope for Bowden Park includes aesthetic and sustainable enhancements combined with the infrastructure improvements noted below. Playground Area: City of Palo Alto Page 1 • Replacing aged playground equipment and swings. In order to reduce cost, the project will reuse existing equipment where feasible, and support posts will remain in place with new play elements attached. • Installing a new retaining wall in front of the existing damaged wall. The existing wall will act as a tree root barrier for the new retaining wall. • Repaving the damage asphalt sections and sealing the asphalt in the playground area. • Installing new rubberized surfacing sections to increase accessibility to the playground equipment and meet ADA requirements. • Adding decomposed granite to protect a tree and planter area from playground sand (sustainability enhancement). • Installing a new concrete edge around the middle playground equipment to eliminate an existing tripping hazard. • Renovating the existing fence and adding two new fence sections. Park and Playground Area: • Renovations to the existing irrigation system to correct coverage (sustainability enhancement). • Planting medium and small shrubs in a planter. New plants will be drought tolerant, reducing yearly water consumption (sustainability/aesthetic enhancement). • Installing new landscape metal header board at the edge of the existing decomposed granite pathways. • Providing new site amenities (benches, picnic tables, drinking fountains, trash/recycling receptacles). Other landscape renovation items proposed as bid alternates include: • Adding new trees: (10) Quercus lobata-Valley Oaks (sustainability and aesthetic enhancement). • Adding a new decomposed granite pathway for park access from Alma Street (aesthetic enhancement). • Adding landscape bark mulch on the northeast and southeast perimeters of the park to replace existing ivy and reduce water usage (sustainability enhancement). City of Palo Alto Page 2 • Adding new bike racks near the corner of North California Street and Alma Street (aesthetic enhancement). • Adding new benches (2) and picnic tables (2) inside the playground area (aesthetic enhancement). Public Outreach Staff held a community meeting to review the scope of the project on May 28, 2014. In addition, on June 24, 2014, staff presented the project to the Parks and Recreation Commission (PRC) and received one minor comment on the concept plan to leave the existing sand surface around the playground equipment. The concept plan was updated in accordance to PRC's comment. The final improvement plan was presented to the PRC on August 26, 2014. The PRC recommended Council approval of a Park Improvement Ordinance to allow the project to proceed. An Architectural Review Board staff approval of the project occurred on December 9, 2014. Timeline Pending the ordinance's adoption by the Council, staff will prepare bid documents with anticipated construction bid openings in Spring 2015. Following Council approval of the construction contract, a 100 -day construction phase starting in Summer 2015 is anticipated. Resource Impacts Funds for the renovation of Bowden Park are available in the Capital Improvement Program project PE -13008, Bowden Park. Policy Implications The proposed CIP recommendations are consistent with Policy C-26 of the Community Services element of the Comprehensive Plan, which encourages maintaining park facilities as safe and healthy community assets; and Policy C-22, which encourages new community facilities to have flexible functions to ensure adaptability to the changing needs of the community. Environmental Review City of Palo Alto Page 3 The proposed improvements are considered minor alterations and repairs to existing facilities and are categorically exempt under the California Environmental Quality Act (CEQA) section 15301 guidelines. Attachments: • A - 00710427 ORDN Bowden Park Plan of Improvements (PDF) City of Palo Alto Page 4 *****NOT YET APPROVED***** ORDINANCE NO. ORDINANCE OF THE COUNCIL OF THE CITY OF PALO ALTO APPROVING AND ADOPTING A PLAN FOR IMPROVEMENTS TO BOWDEN PARK The Council of the City of Palo Alto does ORDAIN as follows: SECTION 1. Findings. The City Council finds and declares that: (a) Article VIII of the Charter of the City of Palo Alto and Section 22.08.005 of the Palo Alto Municipal Code require that, before any substantial building, construction, reconstruction or development is commenced or approved, upon or with respect to any land held by the City for park purposes, the Council shall first cause to be prepared and by ordinance approve and adopt a plan therefor. (b) Bowden Park is dedicated to park, playground and recreational space. (c) The City intends to authorize the construction of certain park improvements within Bowden Park, as shown on the Schematic Improvement Plans (the "Plan"), attached as Exhibit "A": (1) Replacing the children's tot playground structures and rubberized surface with ADA accessible surfacing; (2) Renovating the fence and replacing damaged asphalt sections with new asphalt materials in the playground area; (3) Installation of a retaining wall and concrete edge in the playground area; (4) Renovation of the current irrigation system; (5) Planting of new plants and trees; (6) Renovating on -site furniture, including, without limitations, benches, a seat and a table as well as replacing a drinking fountain, trash and recycling receptacles and adding new tables and benches; (7) Installation of decomposed granite to protect two tree sections from the playground sand surface and a pathway for park access from Alma Street; (8) Installation of landscape metal header board at the edge of decomposed granite pathways; 140807sd1 00710427 1 *****NOT YET APPROVED***** (9) Installation of bike racks near the corner of North California Street and Alma Street; and (10) Installation of landscape bark mulch in the northeast and southeast section of the park (d) The project improvements will avoid protected trees and other sensitive resources, if any. In addition, existing park uses will be restored following the completion of project construction. (e) The project described above and as more specifically described in the Plan, attached hereto as Exhibit "A," is consistent with park and conservation purposes. (f) The Council desires to approve the project described above and as more specifically described in the Plan, attached hereto as Exhibit "A." SECTION 2. The Council hereby approves the Plan for the construction of the improvements at Bowden Park , and it hereby adopts the Plan, attached hereto as Exhibit "A," as part of the official plan for the construction of the park improvements at Bowden Park. SECTION 3. The Council finds that the project to construct the facilities at Bowden Park will not have a significant impact on the environment and thus is categorically exempt from the preparation of environmental documents and/or significant environmental review under Section 15301 (Existing Facilities) of the California Environmental Quality Act (CEQA) Guidelines. // // // // // // // // 140807sd1 00710427 2 *****NOT YET APPROVED***** SECTION 4. 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: Senior Asst. City Attorney City Manager Director of Community Services Director of Administrative Services 140807sd1 00710427 3 LZb0TL00IPSL080bI REFERENCE NOTES LEG END 1.•f ml`�m, 5n v re.e. m-.e au.. a.arega Am.rm:wva, .t..a a Rearm : wam..mm e r`.a..s ,wa.- urur.�. wor r:..a�n _Mrp+AVO.D .wmU.cry, n�e.•annx w.. 4 . .-. .w.. GKPE3DWI m. W...4.w v.. 0. . ON., n. n gra.vamatunam>wv. a.rsq no* agan.ra VYOMAO UP..1.4..a.w wa.ar..d�.. Ge W2.eL5M• MIN Ncomaa p.m ea41 Y1.4. Coma, oa. .q r+RmmAA'n msr anssar gemt. Euirl see tum N eu." WtPETA5H,WW. nue. Er,* OW irzionpa fir % omen ...'•sear%.fvv. K ..t. .r na..v ..Ka..a. • w. w..m. .an os nOnn p.I g as .troteln amen oll,gree .nabon Neal tee.. . .rata 5....ma a..arra. 00 ,40 Mhdiea -4.t avnga fnxe enw.c m. ,nm w ma. iv, Sees oak mrtrIV . M CW Mir wPa*pm.m stub r ' ,wampu m .mmutEs NaRya.wam >r rwe tammomwAm.mdtm,n. tt55aD. m EX PIMILMILASCAP PIRCEll Ea r.... W. rw... norm ['rye su p on...ma ma Yw toomyeK MrM Aa samdmyrna tpM star usu . ua¢t s.r I. er.WIA n pr. TMA]F A 1. wan w tm rAm it : .'_` . .a..« •••• 1.▪ ArlA..m „Mam. Om. ar:. ...r PI red Kcr . SEE PROPOSED PARK wens MI ST FOR PIAYG%tlRp AREA Itt VALT C run Bowde n Park Improveme nt Project Iuly -'1 . ?Did CITY OF PALO ALTO Palo Alto, California Proje ct BPI -1164e PROPOSED SITE PLA N & EXISTING CONDITIO NS ■ ■ lil SIEGFRIED *****cflA didY i ON***** LZbOTLOOIPSL080VT U, Playground Equipment "A" Playground Equipment "C" Bowden Park Improvement Project Prepared For. Playground Equipment "B" Playground Equipment 'E" Iuly SR. zO14 CITY OF PALO ALTO Palo Alto, California Protect #PE.13000 PROPOSED PARK AMENITIES 1 ■iii SIEGFRIED • CITY OF PALO ALTO City of Palo Alto (ID # 5396) City Council Staff Report Report Type: Consent Calendar Meeting Date: 12/15/2014 Summary Title: Proposed Changes in Development Impact Fees Title: Proposed Changes in Development Impact Fees: Adoption of Ordinance Amending Chapter 16.58 Implementing New Public Safety Facility and General Government Facility Impact Fees And Direction to Draft Resolution Setting Initial Impact Fee Rates at 75 Percent of Levels Identified in Nexus Study From: City Manager Lead Department: Administrative Services RECOMMENDATION Staff recommends that Council review the recommended new Public Safety Facility and General Government Facility impact fees, as revised and discussed below. In addition, staff recommends that Council approve the revised Public Safety Facility Needs List contained in the Nexus Study; adopt the ordinance amending Chapter 16.58 implementing new Public Safety Facility and General Government Facility impact fees (Attachment D); and direct staff to prepare a resolution setting the fee amounts at 75 percent of maximum levels supported by the Nexus Study. BACKGROUND AND DISCUSSION At its November 3, 2014 discussion of two new Development Impact Fees, Council questioned the Public Safety Facilities Needs List used in the fee calculations, because after Council approved that list on March 3, 2014, it subsequently approved an Infrastructure Funding Plan which included full funding for the Public Safety Building and for Fire Station #3. These items were still listed on the Needs List as needing funding. Council requested that staff remove those items from the Needs List. Council's second concern was the density assumptions for non-residential categories — particularly office space, which was assumed to have a density of 2.5 employees per 1,000 square feet. Council requested that the assumption be changed to 4.0 employees per 1,000 square feet to match the Downtown Assessment District's parking requirement of 1 space per 250 square feet of office space. Council therefore referred the item back to the Finance Committee. However, due to the need City of Palo Alto Page 1 for the consultant, David Taussig & Associates (DTA), to update the Nexus Study with the changes requested by Council, the report was not ready in time for the December 2 Finance Committee Meeting, and the Finance Committee recommended that staff bring the item directly back to Council on December 15. Staff has revised the Nexus Study and fee calculations to include the two requested changes (Attachment C). Council has the option to revisit these and any other Development Impact Fees in the next couple years, given any significant new information, and potentially adjust fee levels. For example, if the City found a site for the Public Safety Building with funding requirements greater than the projected $57 million, or if information from the business registry determines that the fee ratio between business and residents is different from that assumed in this Nexus Study, a new Nexus Study could be prepared and fee revisions approved. Change #1: Public Safety Project Funding Needs The original Public Safety Fee calculations were based on a Project Needs List approved by Council on March 3, 2014. Since then, Council approved an Infrastructure Project Funding Proposal (CMR #4889) that funded the Public Safety Building and Fire Station 3. In addition, on November 4, voters approved a 2 percent increase in the Transient Occupancy Tax which confirmed the funding model included in the Infrastructure Proposal. This funding model assumes that the TOT and other revenues will fully fund the Public Safety Building and Fire Station 3 and that additional impact fees from new development will not be assessed. At Council's request, Staff directed DTA to revise the Public Safety Needs List accordingly, as shown below: City of Palo Alto Page 2 REVISED PUBLIC SAFETY FACILITIES NEEDS LIST THROUGH 2035 — USED IN REVISED NEXUS STUDY (DOLLARS IN MILLIONS) Facility Name Total Cost for Facility Off -setting Revenues Net Cost to City 1 Public Safety Building $57.00 ($57.00) $0 2 Fire Station 3 $6.70 ($6.70) $0 3 Fire Station 4 $7.50 $0 $7.50 4 BC Van (x2) $0.20 $0 $0.20 5 Fire Trucks (x2) $2.00 $0 $2.00 6 Type III Engine (x2) $0.80 $0 $0.80 7 Training Tower & Related Land Acquis. $8.00 $0 $8.00 8 Type 1 Engine (x8) — 2024 $4.20 $0 $4.20 9 Ambulances (x4) — 2022-2025 $1.30 $0 $1.30 10 Vehicles (Van, Trucks, Engines, Ambul.) $8.50 $0 $8.50 Total Public Safety Facilities $96.20 $63.70 $32.50 Change #2: Employee Density Assumptions The original Nexus Study presented November 3 2014 assumed the following employee densities: • Commercial Use - 3 employees per 1,000 square feet • Office/Institutional Use — 2.5 employees per 1,000 square feet • Industrial Use — 1.0 employee per 1,000 square feet These assumptions were derived from the Urban Land Institute as well as DTA's Public Works Database, which tracks over a decade of proposed and completed projects throughout the State. This database has been cross-referenced with data from the Natelson Company and other economics firms. It is DTA's standard operating assumption as it pertains to non- residential use. Also note that each employee is assumed to require 50% of the cost of services of a resident. So 3 employees translates to 1.5 persons served, etc. While Nexus Studies typically incorporate more general State data, more specific local data provides more accuracy. Palo Alto's downtown zoning ordinance requires 1 parking space per City of Palo Alto Page 3 250 square feet of new office space, implying a 4 -employees -per -1,000 square feet density. The zoning ordinance also establishes requirements for other commercial uses and zoning districts. In the ongoing Downtown Cap study, the Department of Planning and Community Environment (PCE) had hoped to develop an updated employment density for downtown office space via a business survey. However results of the survey were inconclusive, suggesting that implementation of the business registry will be required in order to attain more accurate employment density data. While it is likely that Palo Alto's downtown office density is more than 4 employees per 1,000 square feet, staff believes using the current zoning code requirement, rather than the lower State average, is a more accurate metric. The Revised Nexus Study (Attachment C) includes the following non-residential density assumptions: • Commercial Use - 3 employees per 1,000 square feet [unchanged] • Office/Institutional Use — 4.0 employees per 1,000 square feet • Industrial Use —1.0 employee per 1,000 square feet [unchanged] The revised version of the maximum fee levels and projected revenues is as follows: REVISED PROPOSED MAXIMUM FEE LEVELS Proposed Impact Fee Proposed Residential Fees Proposed Non -Residential Fees (per unit) (per 1,000 sq ft) Single Family Multi - Family Commercial Office/Inst'I Industrial Public Safety Facility $1,328 $1,062 $743 $991 $248 General Govt. Facilities $1,673 $1,339 $936 $1,249 $312 TOTAL $3,001 $2,401 $1,679 $2,240 $560 Residents per HH/Employees per 1,000 sq ft* 2.68 2.12 3.0 4.0 1.0 FEE per Person Served** $1,120 $1,133 $560 $560 $560 *From page 10 of the DTA Development Impact Fee Justification Study - NOTE THAT NON-RESIDENTIAL PERSONS SERVED are equivalent of 50% of one RESIDENTIAL person served. **Multi -Family Fee per Person Served is 1% higher than the rest, due to rounding error (as per DTA). City of Palo Alto Page 4 REVISED PROJECTED NEW MAXIMUM FEE REVENUES THROUGH 2035 (Dollars in Millions) Proposed Impact Fee Residential Fee Revenue Non -Residential Fee Revenue TOTAL S Single Family Multi- Family Commercia I Office/Inst' I Industria I Public Safety Facility $3.39 $1.67 $0.66 $3.61 $1.03 $10.36 General Govt. Facilities $4.27 $2.10 $0.84 $4.56 $1.30 $13.06 TOTAL $7.66 $3.77 $1.50 $8.17 $2.33 $23.42 TOTAL BY RES./NON-RES. $11 43 $11.99 % RES./NON-RES. 48.8% 51.2% To compare with the original proposed fee maximums and projected revenues, here were those presented on November 3: ORIGINAL PROPOSED MAXIMUM FEE LEVELS Proposed Impact Fee Proposed Residential Fees Proposed Non -Residential Fees (per unit) (per 1,000 sq ft) Single Family Multi - Family Commercial Office/Inst'I Industrial Public Safety Facility $2,893 $2,314 $1,619 $1,349 $540 General Govt. Facilities $1,673 $1,339 $936 $780 $312 TOTAL $4,566 $3,653 $2,556 $2,130 $852 Residents per HH/Employees per 1,000 sq ft* 2.68 2.12 3.0 2.5 1.0 FEE per Person Served** $1,704 $1,723 $852 $852 $852 *From page 10 of the DTA Development Impact Fee Justification Study - NOTE THAT NON- RESIDENTIAL PERSONS SERVED are equivalent of 50% of one RESIDENTIAL person served. **Multi -Family Fee per Person Served is 1% higher than the rest, due to rounding error (as per DTA). City of Palo Alto Page 5 ORIGINAL PROJECTED NEW MAXIMUM FEE REVENUES THROUGH 2035 (Dollars in Millions) Proposed Impact Fee Residential Fee Revenue Non -Residential Fee Revenue TOTALS Single Family Multi - Family Commercial Office/Inst'I Industrial Public Safety Facility $7.38 $3.64 $1.45 $7.88 $2.24 $22.58 General Govt. Facilities $4.27 $2.10 $0.84 $4.56 $1.30 $13.06 TOTAL $11.65 $5.74 $2.28 $12.43 $3.54 $35.64 TOTAL BY RES./NON-RES. $17.39 $18.25 % RES./NON-RES. 48.8% 51.2% CONCLUSION Staff respectfully requests that Council conduct a first reading of the proposed ordinance implementing the new Public Safety Facilities and General Government Facilities fees (Attachment D). Further Council is asked to direct staff to prepare a resolution that sets the fees at the rate of 75 percent of the maximum amount justified by the Nexus Study and bring it back to Council shortly. Adoption of new impact fees requires a noticed public hearing and at that hearing, Council would have the opportunity to ask questions about the revised Nexus Study and resulting fee calculations. Resolutions imposing new (or increased fees) go into effect 60 days after adoption (Government Code 66017). The new fees would apply to new development that has not received building permits before the start of the 60 -day wait period. ENVIRONMENTAL REVIEW Rate Setting is not considered a project for purposes of the California Environmental Quality Act. Attachments: • Attachment A: CMR #5049 from November 3, 2014 Council Meeting with Attachments (PDF) • Attachment B: City Council Minutes from 11-3-14 (PDF) • Attachment C: FY 2014-15 Impact Fees (PDF) • Attachment C: Revised Nexus Study (PDF) • Attachment D: Ordinance Implementing Public Safety and Government Facility Impact Fee (PDF) City of Palo Alto Page 6 CITY OF PALO ALTO City of Palo Alto (ID # 5049) City Council Staff Report Report Type: Action Items Meeting Date: 11/3/2014 Summary Title: Proposed Changes in Development Impact Fees Title: Finance Committee Recommends Proposed Changes in Development Impact Fees: Direction to Draft Ordinance Implementing New Public Safety Facility and General Government Facilities Impact Fees From: City Manager Lead Department: Administrative Services RECOMMENDATION The Finance Committee and Staff recommend that the Council review and approve the recommended new Public Safety Facility and General Government Facility impact fees at 75 percent of the maximum allowable level and direct staff to draft an implementing ordinance. BACKGROUND AND DISCUSSION On May 6, 2014 the Finance Committee passed by a vote of 3 to 1 the following motion: MOTION: Vice Mayor Kniss moved, seconded by Chair Berman that the Finance Committee recommend the City Council review the Development Impact Fee (DIF) Justification Study prepared by David Taussig & Associates and approve the recommended new Public Safety Facility and General Government Facility impact fees at 75 percent of the maximum allowable level. The information presented to Finance Committee that evening may be found in Attachment A, and minutes from the Finance Committee's discussion may be found in Attachment B. Staff was scheduled to come to the full Council on May 19 following the May 6 Finance Committee meeting, but the item was postponed when other agenda items ran long. The June 2014 Council schedule was packed, the July recess followed, and then staff vacations and consultant schedule conflicts impeded an August Council date. This item was then put on the tentative agenda for September, and then October, but other agenda items were deemed more pressing. Since the original May Council date, the impact fees currently in place have been updated for FY 2015. Attachment C shows the FY 2015 fee levels. City of Palo Alto Page 1 Please note the following corrections and additions to CMR #4697 (Attachment A), as requested by the Finance Committee and discussed by staff. I. Correction: Page 5, Paragraph 1 of Staff Report #4697 should be replaced with the following paragraph (changes underlined): Council members may note that Public Safety Building (PSB) needs are listed at $57 million. Staff acknowledges that there are discussions underway regarding earmarking new hotel revenues for the PSB, and that the needs list above excludes such funds. Staff proposes that for now Council consider that need unfunded, and when the City Council approves the funding for the PSB — if it is finalized before the new fees are implemented-- the resulting fee can be recalculated and reduced to reflect the offsetting revenue source. II. Clarification Regarding Source of Palo Alto Jobs Data: Finance Committee members were concerned about the recommended fees' allocation between residential and non-residential properties. Specifically, there was concern that the jobs data used in the calculations might be unreliable. For example, the data on page 10 of David Taussig & Associates (DTA) Development Impact Fee Justification Study assumed 93,295 employees in Palo Alto at present, whereas there are other estimates as high as 120,000. Finance Committee members wanted greater detail on how the numbers were derived, given the fact that the City does not have a Business License Tax or Registry Fee, by which aggregate jobs data could be gathered. The consultant used demographic data from Planning and Community Environment (PCE) staff which had taken into account Association of Bay Area Government's data along with PCE staff's knowledge of Palo Alto trends. PCE staff had, in fact, modified the ABAG projections before forwarding them to DTA. Staff since received further clarification regarding the specific source of the jobs data used in the original ABAG projections. According to PCE staff: Most jurisdictions, including ABAG, rely on a Census product called Longitudinal Employer -Household Dynamics (LEHD) which is currently the best available information on where, type and number of jobs for smaller geographic areas such as Palo Alto (as opposed to Metropolitan Statistical Areas such as San Jose, Oakland, and San Francisco). LEHD is updated annually and the latest data set is for the year 2011. According to the LEHD web site, the LEHD program "is part of the Center for Economic Studies at the U.S. Census Bureau. The LEHD program produces new, cost effective, public -use information combining federal, state and Census Bureau data on employers and employees..." Staff concluded that these sources are credible and therefore adequate as a basis for DTA's calculations, until such time as employment data are gathered via a Business Registry Fee. City of Palo Alto Page 2 III. Clarification Regarding Fee Split Between Residential and Nonresidential Uses: Finance Committee members were concerned that the proposed fee levels might be unfairly allocated between residential and nonresidential uses, and that residential developments would pay more than their fair share, and nonresidential development would pay less than theirs. According to DTA, their fee calculations are based on a standard industry assumption that each employee counts as 50% of a "person served," since employees tend to demand fewer City services than residents. This convention determines the fee levels only. DTA looked at the projected residential growth and the projected job growth, and divided the needed revenue (based on projected capital needs) over the anticipated number of new units (in terms of new houses and new commercial square footage) to set the fees. Given the proposed fee levels, the split in projected revenues from the new fees would be 48.8% from residential development and 51.2% from non-residential development, rather than "60/40" as had been discussed at the Finance Committee meeting. IV. Reformulation of Table Comparing Benchmarked City Fees with Palo Alto's: Based on Finance Committee members' feedback, the tables on page 4 of CMR #4697 should be replaced with the following table: SUMMARY AND ANALYSIS OF RESIDENTIAL BENCHMARK DATA Cities Analyzed in Comparative Study Total Single Family Home Fees Average Home Price as of Dec. 201:3 Fees as Percentage of Home Price Average of 8 other cities $ 2.5,3.59 $ 858,634 3.O% Palo Alto - current fees Palo Alto - with new proposed fees (at 75% of max levels) $ 38,344 $ 41,769 $ 1,498,040 $ 1,498,000 2.6% 2.8.% The table above shows that although Palo Alto's single-family fees are high compared to the comparison cities' fees, when taken as a percentage of single-family home prices, Palo Alto's fees are reasonable. V. Correction in Table Showing Current DIF Fund Balances: The table found on page 5 of CMR #4697 showing our current Impact Fee Fund Balances (as of fiscal year-end 2013) should read as follows (correction underlined): City of Palo Alto Page 3 Fee Net Funds Available (Thous. of $$) Parks 1,616 Community Centers 5,381 Libraries 678 Residential Housing in -Lieu 4,630 Commercial Housing In -Lieu 3,569 Parkland Dedication 2,051 Citywide Transportation 3,141 Water & Wastewater 2,225 Charleston/Arastradero 569 Stanford Research Park/EI Camino 3,847 San Antonio/West Bayshore 829 University Ave. Parking Assessment District 658 VI. Fee Split Among Non -Residential Categories: Another concern of Council Members was that the proposed non-residential fees are broken out by Commercial, Office/Institutional, and Industrial categories; while our current fees are broken out by Commercial/Industrial and Hotel/Motel categories. The question was raised as to why DTA and staff were introducing the new categories with the new fees. DTA explained that the new (proposed) categories are standard fee categories among California cities and reflect the varying demand for City services generated from different non-residential uses. In fact, DTA was unfamiliar with other cities splitting Hotel/Motel usage from other non- residential uses. Staff recommends retaining the new categories for the new fees. Beyond the above clarifications and corrections, the remaining information in Attachment A is valid and may be used to inform Council's discussion. Attachments: • Attachment A: CMR #4697 from May 6, 2014 Finance Committee with Attachments (PDF) • Attachment B: Excerpt Minutes from May 6, 2014 Finance Committee Meeting (PDF) • Attachment C: FY 2014-15 Impact Fees (PDF) City of Palo Alto Page 4 CITY OF PALO ALTO City of Palo Alto (ID # 4697) Finance Committee Staff Report Report Type: Action Items Meeting Date: 5/6/2014 Summary Title: Proposed Changes in Development Impact Fees Title: Proposed Changes in Development Impact Fees: Implementation of New Public Safety Facility and General Government Facilities Fees From: City Manager Lead Department: Administrative Services RECOMMENDATION Staff requests that the Finance Committee review and discuss the attached "Development Impact Fee Justification Study" prepared by David Taussig & Associates (DTA) (see Attachment A). The report presents proposed maximum fee levels for a new Public Safety Facility Impact Fee and for a new General Government Facilities Impact Fee. Through this process, the Committee and the City Council may determine the following: (a) whether to levy each of the proposed new fees, (b) at what level to set the fee(s), up to and including the maximum allowable fee, and (c) what if any exemptions should be included. MOTION The Finance Committee has reviewed the Development Impact Fee (DIF) Justification Study prepared by David Taussig & Associates and recommends that the Council review the report and approve the recommended new Public Safety Facility and General Government Facility impact fees at 75 percent of the maximum allowable level. BACKGROUND Staff presented to the Finance Committee on November 5, 2013 a list of anticipated Project Needs throughout the City between now and 2035. Staff then presented the list along with additional information requested by the Finance Committee to the City Council on March 3, 2014. Council approved the Project Needs List that evening, so the consultant was able to proceed with calculating the recommended maximum fee levels for certain areas. Process for Developing the Project Needs List: City of Palo Alto Page 1 For several months before the November 5, 2013 Finance Committee meeting, staff assembled an extensive list of projected capital needs for the following categories: Transportation, Public Safety, General Government Facilities, Parks and Recreation, and Libraries. The Administrative Services Department and DTA consulted with City staff of all relevant departments, the IBRC report and the follow-up discussions with the Council Infrastructure Committee, and the Proposed and Adopted CIP Budgets for Fiscal Year 2014. Staff also conducted a series of inter - department meetings to discuss the draft list of projects and any new developments —such as changes in funding or changed cost estimates-- that may have arisen in the intervening weeks. It is important to note that the evaluation of the City's housing impact fees is not included in DTA's current contract scope, but is included as a program under the Updated Housing Element, recently adopted by City Council. The list was limited by the following criteria: each project must be "non -speculative" — that is, seriously considered, not just a nice -to -have; have a useful life of over 5 years, and have all offsetting revenues deducted. In addition, given the built -out nature of the City, only a small percentage of the cost of the projects could be allocated to new development. For example, staff's list of unfunded projected needs for Parks added up to $39 million. Given the Association of Bay Area Governments' and Planning and Community Environment staff's projected population growth rates, in the next 20 years about 15% of the City's parks users will be brought in by new development. The remaining 85% will be "existing users." Therefore only 15% or about $6 million of those costs could be allocated to the development impact fee. That $6 million is already largely covered by the Parks fee at its current level. The remaining $33 million would have to be funded by the General Fund or by "existing users." That raises the bar quite high for the amount of funding needed to justify a new or increased fee. In advance of the November meeting with the Finance Committee, DTA determined that the total project needs for Parks and Recreation (at $39 million) and Libraries (at $0.3 million) would not merit an increase in current fees. In fact, the current fee levels should be adequate to fund the new list of needs along with the needs anticipated at the last Impact Fee update. As a result, staff presented Council with a proposed list of projects in the remaining categories: Transportation, Public Safety facilities and General Government facilities. After the Council Meeting on March 3, DTA determined that the Transportation -related project needs, totaling $91.2 million, also would be adequately met by the fees already in place. That left General Government facilities and Public Safety Facilities as the two fee opportunities DTA analyzed in its Fee Justification Study. The following table shows all the categories of fees currently in place in Palo Alto, which ones were included in the Benchmarking study, and which ones were included in the fee updates, and if they were not, when they are expected to be updated. City of Palo Alto Page 2 - _ Status Fee Type - DEPT RESP Included in benchrn r king? Included in Update?' Plan to Update When? Parks c='=-) Yes No Preliminary look indicated that the fees were adequate for current needs. Will be reviewed again at the next update, once the Parks Master Plan has been completed. C rn unity Centers C'SD Yes No Preliminary look indicated that the fees were adequate for current needs. Will be reviewed again at the next update (2 - 5 years). Libraries LIB Yes No Will be reviewed again at the next update (2-5 years) -- when current rebuilds and remodels are complete. Housing PCE Yes No Housing Impact Fees were not included in the nexus study. They are included as a program under the recently adopted Updated Housing Element. Transportation PCE Yes No Preliminary look indicated that the fees were adequate for current needs. Will be reviewed again at the next update (2 - 5 years). Parkland Dedication Fee PCE Yes No This fee falls under the Quimby Act, not AB 66000, so can be updated independently of this study. Zonal Traffic Impact Fee PCE No No Zonal fees are not generally able to be benchmarked. Preliminary look indicated that the fees were adequate for current needs. These fees will be reviewed during the next update in 2-5 years. DTA completed this draft fee recommendation report on April 15. Staff has had the opportunity to review the recommendations and consider them in relation to total impact fees currently in place and the impact to prospective developers. Note that DTA had completed earlier a benchmarking study of Development Impact Fees (DIFs) in neighboring communities. (See Attachment F.) The following chart summarizes the benchmark information with and without the proposed new fees for Palo Alto. City of Palo Alto Page 3 TOTAL FEES BY TYPE Average of 8 other cities Palo Alto - Current Fees Palo Alto- with max. new fees Palo Alto with rec. new fee levels (75% of max.) Single Family Horne Fees - per unit $ 25,359 $ 36,938 $ 41,504 $ 40,363 Multi -Family Home Fees - per unit $ 20,982 $ 27,640 $ 31,293 $ 30,350 Office Fees - per square foot $ 10.34 $ 17.32 $ 19.45 $ 18.92 Retail/Industrial Fees - per square foot $ 10.71 $ 35.29 $ 35.70 $ 37.85 The chart above shows that Palo Alto's total DIFs are quite a bit higher than the average of the other benchmarked cities. However, taken as a percentage of home prices within the cities, the comparison is more reasonable. The following chart shows the total fees — including the potential new fees - by category as a percentage of average single-family home sale price. TOTAL FEES AS % OF AVERAGE HOME PRICE* Average of 8 other cities Palo Alto - with max. new fees Palo Alto with rec. new fee levels (TS% of max.) Single Family Home Fees - per unit 2.95% 2.77% 2.691% Multi -Family Home Fees - per unit 2.44% 2.09% 2.03% Office Fees - per square foot 1.20% 1.30% 1.26% Retail/ Industrial Fees - per square foot 1.2.5% 2.55% 2.53% Price as of December 2013 The City of Palo's current DIFs are outlined in Attachment B. Developments may be exempt from all or some impact fees, depending upon the intended use. For instance, 100% affordable housing projects (not a mix of market rate and below market rate) are exempt from current impact fees, as are home remodels or expansions. (Planning and Community Environment is considering whether that exemption needs to be tightened.) Attachment C shows the exempted groups for each of the current fees. Staff recommends that Council maintain the same general exemptions for the new fees. Note that an earlier version of the Current Impact Fees provided to Council on March 3, 2014 contained an inaccuracy: for Parkland Dedication Fees, it indicated that the fees applied only to "Residential Subdivisions of over 50 parcels." In fact, the statute indicates that the required parkland per unit applies to all residential development, but the in -lieu fees are available only to subdivisions of less than 50 parcels. The version in Attachment B includes the corrected text. The Needs List (see Attachment E), approved by Council on March 3 2014, identifies the City's projected capital needs through 2035 within the selected categories. As discussed above, this list is a pared -down version of a more extensive review conducted by staff of all the DIF City of Palo Alto Page 4 categories: Transportation, Public Safety, General Government Facilities, Parks and Recreation, and Libraries. Council members may note that Public Safety Building (PSB) needs are listed at $57 million. Staff acknowledges that there are discussions underway regarding earmarking a proposed 2 percent Transient Occupancy Tax increase as a revenue stream for the PSB, and that the needs list above excludes such funds. Staff proposes that for now Council consider that need unfunded, and when the City Council approves the funding for the PSB — if it is finalized before the new fees are implemented-- the resulting fee can be recalculated and reduced to reflect the offsetting revenue source. RESOURCE IMPACT Development Impact Fees provide funding for capital improvements to mitigate the impacts of new development in the community. The revenues received each year vary based on the amount of development (both residential and non-residential) occurring in Palo Alto during that timeframe. Recommended changes to the fees will be presented to Council for approval in future meetings. DTA's analysis projected revenue impacts over the next 20 years, assuming maximum fee levels, of $22.6 million for Public Safety facilities and $13.1 million for General Government facilities, for a total of $35.6 million. If Council sets the fees at 75 percent of maximum, combined revenues would be in the $27 million range. Actual revenues will vary depending on the specific fee levels approved by Council as well as with year -by -year development activity. The following table summarizes the fund balances for the City's existing impact fees as of June 30, 2013: Fee Bal. June 30, 2013 (Thous. of $$) Commitments & Encumbrances (Thous. of $$) Net Funds Available (Thous. of $$) Parks 1,626 10 1,616 Community Centers 5,396 15 5,381 Libraries 680 3 678 Residential Housing in -Lieu 14,935 10,306 4,630 Commercial Housing In -Lieu 10,017 6,448 3,569 Parkland Dedication 2,057 6 2,051 Citywide Transportation 3,149 8 3,141 Water & Wastewater 2,225 0 2,225 Charleston/Arastradero 572 3 569 Stanford Research Park/EI Camino 3,847 0 3,847 San Antonio/West Bayshore 829 0 829 University Ave. Parking Assessment District 660,852 2,891 657,961 City of Palo Alto Page 5 Staff recommends that some of the net funds listed above be dedicated to relevant infrastructure needs. Specific fund allocations will be included in the Proposed FY 2015 Budget. POLICY IMPLICATIONS Council has the authority to charge new development for its relative share of the cost of specific public facilities, as calculated based on a Nexus Study. Council also has the authority, for policy reasons, to restructure fees based on articulated City policies. The information provided in this report allows Council to take the next step towards re-evaluating and adjusting the City's Development Impact Fees. Attachments: • Attachment A: Draft Development Impact Fee Justification Study by David Taussig & Assoc. (PDF) • Attachment B: Current Development Impact Fees (PDF) • Attachment C: Current Exemptions from Palo Alto Development Impact Fees (DOCX) • Attachment D: Excerpt Minutes from City Council meeting of March 3, 2014 (PDF) • Attachment E: Public Facilities Needs List (PDF) • Attachment F: Charts from Benchmarking Study (DOCX) City of Palo Alto Page 6 DAVID TAUSSIG ASSOCIATES, INC. Public Finance Public Private Partnerships Urban Economics DRAFT DEVELOPMENT IMPACT FEE .JUSTIFICATION STUDY CITY OF PALO ALTO CITY OF PALO ALTO APRIL 29, 2014 Prepared by: DAVID TAUSSIG & ASSOCIATES, INC. 2250 HYDE STREET, 5TH FLOOR SAN FRANCISCO, CALIFORNIA 94109 (800) 969-4382 Newport Beach San Francisco Riverside Fresno Chicago, Illinois Dallas, Texas TABLE OF CONTENTS SECTION PAGE EXECUTIVE SUMMARY 1 SECTION I. INTRODUCTION 3 SECTION II. LEGAL REQUIREMENTS TO JUSTIFY DEVELOPMENT IMPACT FEES 4 SECTION III. DEMOGRAPHICS 8 SECTION IV. THE NEEDS LIST 12 SECTION V. METHODOLOGY USED TO CALCULATE FEES 15 A. PUBLIC SAFETY FACILITIES 17 B. GENERAL GOVERNMENT FACILITIES 22 SECTION VI. SUMMARY OF FEES 25 APPENDICES APPENDIX A: FEE DERIVATION WORKSHEETS City of Palo Alto Development Impact Fee Justification Study TOC April 29, 2014 ij A DAVID TAUSSIG & ASSOCIATES EXECUTIVE SUMMARY In order to adequately plan for new development and identify the public facilities and costs associated with mitigating the direct and cumulative impacts of new development, David Taussig & Associates, Inc. ("DTA") was retained by the City of Palo Alto (the "City") to prepare an AB 1600 Fee Justification Study (the "Fee Study") for specific categories of public improvements not currently covered by the City's Fee Program. The Fee Study is intended to comply with Section 66000 et. seq. of the Government Code, which was enacted by the State of California in 1987, by identifying additional public facilities required by new development ("Future Facilities") and determining the level of fees that may be imposed to pay the costs of the Future Facilities. Fee amounts have been determined that will finance Public Safety and General Government facilities at levels identified by the various City departments as being necessary to meet the needs of new development through buildout in 2035. The Future Facilities and associated construction costs are identified in the Needs List, which is included in Section IV of the Fee Study. A description of the methodology used to calculate the fees is included in Section V. All new development may be required to pay its "fair share" of the cost of the new infrastructure through the development fee program. ORGANIZATION OF THE REPORT Section I of this report provides an introduction to the Fee Study including a brief description of City surroundings, and background information on development fee financing. Section II provides an overview of the legal requirements for implementing and imposing the fee amounts identified in the Fee Study. Section I II includes a discussion of projected new development and demand variables such as future population and employment, assuming current growth trends in housing, commercial, and industrial development extrapolated through buildout in 2035. Projections of future development are based on data provided by the City and the City's 2007 Comprehensive Plan.1 Section IV includes a description of the Needs List, which identifies the facilities needed to serve new development through buildout in 2035 that are eligible for funding by the impact fees. The Needs List provides the total estimated facilities costs, offsetting revenues, net costs to the City, and costs allocated to new development for all facilities listed in the Needs List. This list is a compilation of projects and costs identified by various City departments. Section V discusses the findings required under the Mitigation Fee Act and requirements necessary to be satisfied when establishing, increasing, or imposing a fee as a condition of new development, and satisfies the nexus requirements for each facility included as part of this study. Section V also contains the description of the methodology used to determine the fees for all facility types. Finally, Section VI includes a summary of the proposed fees justified by this Fee Study. Appendix A includes the calculations used to determine the various fee levels. IMPACT FEE SUMMARY The total fee amounts required to finance new development's share of the costs of facilities identified in the Needs List are summarized in Table ES -1 below. Fees within this Fee Study reflect the maximum fee levels that may be imposed on new development. 1 City of Palo Alto, Comprehensive Plan (1998) and Comprehensive Plan Amendment (in progress). City of Palo Alto Development Impact Fee Justification Study Page 1 April 29. 2014 AL DAVID TAUSSIG Oma & ASSOCIATES EXECUTIVE SUMMARY TABLE ES -1 DEVELOPMENT IMPACT FEE SUMMARY city Facilities Residential (Per Unit) Non -Residential (Per 1,000 RSF) Single Family Multi -Family Commercial Office/institutional Industrial Public Safety Facilities 52,893 S2,314 81,619 31,349 8540 General Government Facilities 31,673 31,339 S936 3780 3312 Total $4,566 $3,653 $2,556 $2,130 $852 EXEMPTIONS California Government Code permits fee exemptions for affordable housing and senior housing at the discretion of local jurisdictions. Such fee exemptions are a policy matter that should be based on the consideration of the greater public good provided by the use exempted from the fee. City of Palo Alto Development Impact Fee Justification Study Page 2 April 29, 2014 ij A DAVID TAUSSIG & ASSOCIATES SECTION I: INTRODUCTION Part of the San Francisco Metropolitan Area, the City of Palo Alto ("City" or "Palo Alto") is located approximately 35 miles south of San Francisco within the County of Santa Clara. Named after the coastal redwood tree that grows along San Francisquito Creek, the City is more than 100 years old, encompassing an area roughly the size of 26 square miles and boasting approximately 30,000 housing units, more than 65,000 residents, and over 90,000 jobs. Yet despite the City's mature and largely developed nature, the presence of excellent schools, the world's finest employment centers and job creators, and high quality of life marks across the board, make the City incredibly attractive to new residential and non-residential development and re -development. For instance, the average homes sales price recorded in the City in February 2014 was nearly $2.0 million. Thus, in order to adequately plan for new development and identify the public facilities and costs associated with mitigating the direct and cumulative impacts of new development, David Taussig & Associates, Inc. ("DTA") was retained by the City to prepare an AB 1600 Fee Justification Study (the "Fee Study") for specific categories of public improvements not currently covered by the City's Fee Program. Impact fees are calculated here using updated information on development and City facilities. Moreover, the methods used to calculate impact fees in this study are intended to satisfy all legal requirements governing such fees, including provisions of the U. S. Constitution, the California Constitution, and the California Mitigation Fee Act (Government Code Sections 66000 et. seq.). Impact fees calculated in this report are intended to complement the City's existing impact fees. More specifically, the Fee Study is intended to comply with Section 66000 et. seq. of the Government Code, which was enacted by the State of California in 1987, by identifying additional public facilities required by new development ("Future Facilities") and determining the level of fees that may be imposed to pay the costs of the Future Facilities. Fee amounts have been determined that will finance facilities at levels identified by the various City departments as deemed necessary to meet the needs of new development. The Future Facilities and associated construction costs are identified in the Needs List, which is included in Section IV of the Fee Study. All new development may be required to pay its "fair share" of the cost of the new infrastructure through the development fee program. The fees are calculated to fund the cost of facilities needed to meet the needs of new development. The steps followed in the Fee Study include: 1. Demographic Assumptions: Identify future growth that represents the increased demand for facilities. 2. Facility Needs and Costs: Identify the amount of public facilities required to support the new development and the costs of such facilities. Facilities costs and the Needs List are discussed in Section IV. 3. Cost Allocation: Allocate costs per equivalent dwelling unit. 4. Fee Schedule: Calculate the fee per residential unit or per non-residential square foot. City of Palo Alto Development Impact Fee Justification Study Page 3 April 29. 2014 DAVID TAUSSIG SECTION II: LEGAL REQUIREMENTS TO & ASSOCIATES JUSTIFY DEVELOPMENT IMPACT FEES The levy of impact fees is one authorized method of financing the public facilities necessary to mitigate the impacts of new development. A fee is "a monetary exaction, other than a tax or special assessment, which is charged by a local agency to the applicant in connection with approval of a development project for the purpose of defraying all or a portion of the cost of public facilities related to the development project..." (California Government Code, Section 66000). A fee may be levied for each type of capital improvement required for new development, with the payment of the fee typically occurring prior to the beginning of construction of a dwelling unit or non-residential building. Fees are often levied at final map recordation, issuance of a certificate of occupancy, or more commonly, at building permit issuance. However, Assembly Bill ("AB") 2604 (Torrico) which was signed into law in August 2008, encourages public agencies to defer the collection of fees until close of escrow to an end user in an attempt to assist California's troubled building industry. AB 1600, which created Section 66000 et. seq. of the Government Code was enacted by the State of California in 1987. In 2006, Government Code Section 66001 was amended to clarify that a fee cannot include costs attributable to existing deficiencies, but can fund costs used to maintain the existing level of service ("LOS") or meet an adopted level of service that is consistent with the general plan. Section 66000 et seq. of the Government Code thus requires that all public agencies satisfy the following requirements when establishing, increasing, or imposing a fee as a condition of new development: 1. Identify the purpose of the fee. (Government Code Section 66001(a)(1)) 2. Identify the use to which the fee will be put. (Government Code Section 66001(a)(2)) 3. Determine that there is a reasonable relationship between the fee's use and the type of development on which the fee is to be imposed. (Government Code Section 66001(a)(3)) 4. Determine how there is a reasonable relationship between the need for the public facility and the type of development project on which the fee is to be imposed. (Government Code Section 66001(a)(4)) 5. Discuss how there is a reasonable relationship between the amount of the fee and the cost of the public facility or portion of the public facility attributable to the development on which the fee is imposed. This section presents each of these items as they relate to the imposition of the proposed fees in the City of Palo Alto. City of Palo Alto Development Impact Fee Justification Study Page 4 April 29, 2014 al DAVID TAUSSIG SECTION II: LEGAL REQUIREMENTS TO JPIK & ASSOCIATES JUSTIFY DEVELOPMENT IMPACT FEES A. PURPOSE OF THE FEE (GOVERNMENT CODE SECTION 66001(A)(1)) New residential and non-residential development within the City will generate additional residents and employees who will require additional public facilities. Land for these facilities will have to be acquired and public facilities and equipment will have to be expanded, constructed, or purchased to meet this increased demand. The Fee Study has been prepared in response to the projected direct and cumulative effect of future development. Each new development will contribute to the need for new public facilities. Without future development many of the new public facilities on the Needs List would not be necessary as the existing facilities are generally adequate for the City's present population. In instances where facilities would be built regardless of new development, the costs of such facilities have been allocated to new and existing development based on their respective level of benefit. The proposed impact fee will be charged to all future development, irrespective of location, within the City. Even future "in -fill" development projects contribute to impacts on public facilities because they are an interactive component of a much greater universe of development located throughout the City of Palo Alto. First, the property owners and/or the tenants associated with any new development in the City can be expected to place additional demands on Palo Alto's facilities funded by the fee. Second, these property owners and tenants are dependent on and, in fact, may not have chosen to utilize their development, except for residential, retail, employment, and recreational opportunities located nearby on other existing and future development. Third, the availability of residents, employees, and customers throughout the City has a growth -inducing impact without which some of the "in -fill" development would not occur. As a result, all development projects within Palo Alto contribute to the cumulative impacts of development. The impact fees will be used for the acquisition, installation, and construction of public facilities identified on the Needs Lists to mitigate the direct and cumulative impacts of new development within the City. B. THE USE TO WHICH THE FEE IS TO BE PUT (GOVERNMENT CODE SECTION 66001(A)(2)) The fee will be used for the acquisition, installation, and construction of the public facilities identified on the Needs Lists, included in Section IV of the Fee Study and other appropriate costs to mitigate the direct and cumulative impacts of new development in the City. The fee will provide a source of revenue to Palo Alto to allow for the acquisition, installation, and construction of public facilities, which in turn will both preserve the quality of life in the City and protect the health, safety, and welfare of the existing and future residents and employees. City of Palo Alto Development Impact Fee Justification Study Page 5 April 29, 2014 I ma DAVID TAUSSIG J PM & ASSOCIATES SECTION II: LEGAL REQUIREMENTS TO JUSTIFY DEVELOPMENT IMPACT FEES C. DETERMINE THAT THERE IS A REASONABLE RELATIONSHIP BETWEEN THE FEE'S USE AND THE TYPE OF DEVELOPMENT PROJECT UPON WHICH THE FEE IS IMPOSED (BENEFIT RELATIONSHIP) (GOVERNMENT CODE SECTION 66001(A)(3)) As discussed in Section A above, it is the projected direct and cumulative effect of future development that has prompted the preparation of the Fee Study. Each development will contribute to the need for new public facilities. Without future development, the City would have no need to construct many of the public facilities on the Needs List. For all other facilities, the costs have been allocated to both existing and new development based on their level of benefit. Even future "in -fill" development projects, which may be adjacent to existing facilities, further burden existing public facilities. Consequently, all new development within Palo Alto, irrespective of location, contributes to the direct and cumulative impacts of development on public facilities and creates the need for new facilities to accommodate growth. The fees will be expended for the acquisition, installation, and construction of the public facilities identified on the Needs List and other authorized uses, as that is the purpose for which the fee is collected. As previously stated, all new development creates either a direct impact on public facilities or contributes to the cumulative impact on public facilities. Moreover, this impact is generally equalized among all types of development because it is the increased demands for public facilities created by the future residents and employees that create the impact upon existing facilities. For the aforementioned reasons, new development benefits from the acquisition, construction, and installation of the facilities on the Needs Lists. D. DETERMINE How THERE IS A REASONABLE RELATIONSHIP BETWEEN THE NEED FOR THE PUBLIC FACILITY AND THE TYPE OF DEVELOPMENT PROJECT UPON WHICH THE FEE IS IMPOSED (IMPACT RELATIONSHIP) (GOVERNMENT CODE SECTION 66001(A)(4)) As previously stated, all new development within the City, irrespective of location, contributes to the direct and cumulative impacts of development on public facilities and creates the need for new facilities to accommodate growth. Without future development, many of the facilities on the Needs Lists would not be necessary. For certain other facilities, the costs have been allocated to both existing and new development based on their level of benefit. For the reasons presented herein, there is a reasonable relationship between the need for the public facilities included on the Needs List and all new development within Palo Alto. City of Palo Alto Development Impact Fee Justification Study Page 6 April 29, 2014 al DAVID TAUSSIG SECTION II: LEGAL REQUIREMENTS TO JPIK & ASSOCIATES JUSTIFY DEVELOPMENT IMPACT FEES E. THE RELATIONSHIP BETWEEN THE AMOUNT OF THE FEE AND THE COST OF THE PUBLIC FACILITIES ATTRIBUTABLE TO THE DEVELOPMENT UPON WHICH THE FEE IS IMPOSED ("ROUGH PROPORTIONALITY" RELATIONSHIP) (GOVERNMENT CODE 66001(A) As set forth above, all new development within the City impacts public facilities. Moreover, each individual development project and its related increase in population and/or employment, along with the cumulative impacts of all development in Palo Alto, will adversely impact existing facilities. Thus, imposition of the fee to finance the facilities on the Needs Lists is an efficient, practical, and equitable method of permitting development to proceed in a responsible manner. New development impacts facilities directly and cumulatively. In fact, without any future development, the acquisition, construction, and/or installation of many of the facilities on the Needs Lists would not be necessary as existing City facilities are generally adequate. Even new development located adjacent to existing facilities will utilize and benefit from facilities on the Needs List. The proposed fee amounts are roughly proportional to the impacts resulting from new development based on the analyses contained in Section V. Thus there is a reasonable relationship between the amount of the fee and the cost of the facilities. City of Palo Alto Development Impact Fee Justification Study Page 7 April 29, 2014 ilk DAVID TAUSSIG & ASSOCIATES SECTION III: DEMOGRAPHICS In order to determine the public facilities needed to serve new development as well as establish fee amounts to fund such facilities, the City provided DTA with projections of future population and development within Palo Alto. DTA categorized developable residential land uses as Single Family and Multi -Family. Developable non-residential land uses within the City's commercial, office, and industrial zones are categorized as Commercial, Office/Institutional, and Industrial respectively. Additional details are included in the table below. Based on these designations, DTA established fees for the following five (5) land use categories to acknowledge the difference in impacts resulting from various land uses and to make the resulting fee program implementable. LAND USE CLASSIFICATION FOR FEE STUDY DEFINITION Single Family Includes single family detached homes Multi -Family Includes buildings with attached residential units including apartments, town homes, condominiums, and all other residential units not classified as Single Family Detached Commercial Includes, but is not limited to, buildings used as the following: • Retail • Service -oriented business activities • Department stores, discount stores, furniture/appliance outlets, home improvement centers • Entertainment centers • Sub -regional and regional shopping centers Office/Institutional Includes, but is not limited to, buildings used as the following: • Business/professional office • Professional medical offices and hospitals • Schools Industrial Includes, but is not limited to, buildings used as the following: • Light manufacturing, warehouse/distribution, wholesaling; • Large-scale warehouse retail • Service commercial activities • Public uses, arterial roadways and freeways providing automobile and public transit access • Automobile dealerships • Support commercial services The City of Palo Alto's Comprehensive PIan1 (the "Comprehensive Plan") demographics were used as estimates of the number of housing units and nonresidential building square feet to be built in the City. In addition, the Comprehensive Plan was used to project the additional population generated from new development. However, Comprehensive Plan Update data was also reviewed in light of projections prepared by the Association of Bay Area Governments ("ABAG"). 1 City of Palo Alto, Comprehensive Plan (1998). See also Comprehensive Plan Amendment (in progress). City of Palo Alto Development Impact Fee Justification Study Page 8 April 29. 2014 u DAVID TAUSSIG & ASSOCIATES SECTION III: DEMOGRAPHICS Notably, DTA attempted to utilize metrics (e.g. average household size) that standardized existing demographics with the projections found in the Comprehensive Plan. Future residents and employees will create additional demand for facilities that existing public facilities cannot accommodate. In order to accommodate new development in an orderly manner, while maintaining the current quality of life in the City, the facilities on the Needs List (Section IV), as reviewed and approved by the City Council on March 3, 2014, will need to be constructed. For those facilities that are needed to mitigate demand from new development, facility costs have been allocated to new development only. In those instances when it has been determined that the new facilities will serve both existing and new development, facility costs have been allocated based on proportionate benefit (see Equivalent Dwelling Unit discussion in Section V). The following sections summarize the existing and future development figures that were used in calculating the impact fees. 1. EXISTING POPULATION FOR LAND USE CATEGORIES According to information provided by the City of Palo Alto, and generally confirmed by the California Employment Development Department - Demographic Research Unit, there are 17,614 existing Single Family units and 10,843 existing Multi -Family units within the City. DTA has used the following demographic information provided by the City of Palo Alto and the Comprehensive Plan which assume resident -per -unit factors of 2.68 and 2.12 per Single Family unit and Multi -Family unit, respectively. Therefore, the City population is generally comprised of 70,193 residents living in 28,457 Single Family and Multi -Family homes. Table 1 below summarizes the existing demographics for the residential land uses. TABLE 1 CITY OF PALO ALTO ESTIMATED EXISTING RESIDENTIAL DEVELOPMENT Residential Land Use Existing Ong Average Residents Housing Units Haus'elolld Size Single Family Residential Multi -Family Residential 47.206 17,614 22.987 10,843 2.68 2.12 Total/Average 70,193 28.457 NA DTA has also utilized the following non-residential demographic information provided by the City of Palo Alto which assumes existing City non-residential land uses utilize employees -per -thousand -square -foot factors of 3.00, 2,50 and 1.00 employees per 1,000 building square feet of Commercial, Office/Institutional, and Industrial, City of Palo Alto Development Impact Fee Justification Study Page 9 April 29, 2014 DAVID TAUSSIG Oma & ASSOCIATES SECTION III: DEMOGRAPHICS respectively. This results in 11,662 existing Commercial employees, 63,534 existing Office/Institutional employees, and 18,099 existing Industrial City employees, as shown in Table 2 below. Each of these figures are generally confirmed by data from the Association of Bay Area Governments ("ABAG") and the U.S. Census Bureau. Importantly, for many of the facilities considered in this Fee Study, EDUs are calculated based on the number of residents or employees ("Persons Served") generated by each land use class. "Persons Served" equal Residents plus 50% of Employees, and is a customary industry practice designed to capture the reduced levels of service demanded by employees. For existing Persons Served estimates, please reference Table 2 below. TABLE 2 CITY OF PALO ALTO ESTIMATED EXISTING NON-RESIDENTIAL DEVELOPMENT Non -Residential Land Use Existing Employees Employees per 1,000 BSF Persons Served per 1,000 BSF Existing Persons 1 Served Commercial 11,662 3.00 1.50 5,831 Office/Institutional 63,534 2.50 1.25 31767 Industrial 18,099 100 0.50 9,050 Total/Average 93.29.5 NA NA 46,648 1 Persons served equal Residents plus 50% of employees. 2. FUTURE POPULATION FOR NEW LAND USE CATEGORIES (2035) According to information provided by the City of Palo Alto, and confirmed by ABAG, there are projected to be an additional 6,839 Single Family units and 3,331 Multi - Family units within the City-wide area at 2035, the time horizon utilized for this Fee Study. DTA has used the following demographic information provided by the City of Palo Alto which assumes future resident -per -unit factors of 2.68 and 2.12 per Single Family unit and Multi -Family unit, respectively. This results in an additional 10,170 residents living in 4,123 Single Family and Multi -Family homes within the City. Table 3 on the following page summarizes the future demographics for the residential land uses. TABLE 3 CITY OF PALO ALTO FUTURE RESIDENTIAL DEVELOPMENT Residential Land Use Projected Residents Projected Average Housing Units Household Size Single Family Residential Multi -Family Residential 6,839 3,331 2,552 1,571 2.68 2.12 Total/Average 10,170 4,123 NA City of Palo Alto Development Impact Fee Justification Study Page 10 April 29, 2014 DAVID TAUSSIG Oma & ASSOCIATES SECTION III: DEMOGRAPHICS In terms of non-residential property, Palo Alto expects to generate 21,428 future jobs, which can be broken down into 2,679 jobs relating to Commercial development, 14,592 jobs for Office/Institutional development, and 4,157 jobs for Industrial development within the City. The City of Palo Alto provided the projected employment discussed above, which results in estimated employees -per -thousand -square -foot factors of 3.00, 2,50, and 1.00 employees per 1,000 building square feet of Commercial, Office/Institutional, and Industrial, respectively, as shown in Table 4 below. Again, for many of the facilities considered in this Fee Study, EDUs are calculated based on the number of residents or employees ("Persons Served") generated by each land use class. "Persons Served" equal Residents plus 50% of Employees, and is a customary industry practice designed to capture the reduced levels of service demanded by employees. For future Persons Served estimates, please reference Table 4 below. TABLE 4 CITY OF PALO ALTO FUTURE NON-RESIDENTIAL DEVELOPMENT Non -Residential Land Use Future Employees Employees per 1,000 BSF Persons Served per 4,000 BSF Future Persons Served1 Commercial 2,679 3.00 150 1,339 Office/Institutional 14,592 2.50 125 7,296 Industrial 4,157 100 0.50 2,079 Total/Average 21.428 NA NA 10,714 1 Persons served equal Residents plus 50% of employees. Importantly, the land use categories that have been discussed above are consistent with (i) growth projections prepared by the City for the Comprehensive Plan, and (ii) land uses generally included in other development impact fee programs of the City. 3. EQUIVALENT DWELLING UNIT (EDU) PROJECTIONS Equivalent Dwelling Units ("EDU") are a means of quantifying different land uses in terms of their equivalence to a residential dwelling unit, where equivalence is measured in terms of potential infrastructure use or benefit for each type of public facility. Since nearly all of the facilities proposed to be financed by the levy of impact fees will serve both residential and non-residential property, DTA projected the number of future EDUs based on the number of residents or employees generated by each land use class. For other facilities, different measures, such as number of trips, more accurately represent the benefit provided to each land use type. The EDU projections for each facility are shown in the fee derivation worksheets in Appendix A. City of Palo Alto Development Impact Fee Justification Study Page 11 April 29, 2014 DAVID TAUSSIG & ASSOCIATES SECTION IV: THE NEEDS LIST Identification of the facilities to be financed is a critical component of any development impact fee program. In the broadest sense, the purpose of impact fees is to protect the public health, safety, and general welfare by providing for adequate public facilities. "Public Facilities" per Government Code Section 66000 includes "public improvements and community amenities." Government Code Section 66000 requires the identification of those facilities for which impact fees are going to be used as the key financing mechanism. Identification of the facilities may be made in an applicable general or specific plan, other public documents, or by reference to a Capital Improvement Program ("CIP"). DTA has worked closely with City staff to develop the list of facilities to be included in the Fee Study ("the Needs List"). Additionally, the Needs List was reviewed and approved by the City Council on March 3, 2014 at a public hearing. For purposes of the City's fee program, the Needs List is intended to be the official public document identifying the facilities eligible to be financed, in whole or in part, through the levy of a development impact fee on new development within Palo Alto. The Needs List is organized by facility element (or type) and includes a cost section consisting of six (6) columns, which are defined in Table 5 below: TABLE 5 CITY OF PALO ALTO NEEDS LIST EXPLANATION OF COST SECTION Column Title Contents Source Total Cost for Facility The total estimated facility cost including engineering, design, construction, land acquisition, and equipment (as applicable) City Offsetting Revenues to New & Existing Development Share of Total Offsetting Revenues allocated to new and existing development City Net Cost to City The difference between the Total Cost and the Offsetting Revenues (column 1 plus column 2) Calculated by DTA Percent of Cost Allocated to New Development Net Cost Allocated to New Development based on New Development's Share of Facilities Calculated by DTA Net Cost Allocated to New Development The Net Cost to City Multiplied by the Percentage Cost Allocated to New Development Calculated by DTA Policy Background or Objective Identifies policy source or rationale for facility need City Council or Comprehensive Plan City of Palo Alto Development Impact Fee Justification Study Page 12 April 29. 2014 u A DAVID TAUSSIG & ASSOCIATES SECTION IV: THE NEEDS LIST DTA surveyed City staff on required facilities needed to serve new development as a starting point for its fee calculations. As part of the survey, DTA conducted extensive research with City departments such as Planning, Public Works, Parks & Recreation, Library, Transportation, etc., and then narrowed the focus to those facility needs that were deemed most timely and prudent to include in the Fee Study. More specifically, the survey included the project description, justification, public benefit, estimated costs, and project financing for each proposed facility. Through regular discussions between DTA and City staff, the Needs List has gone through multiple series of revisions to fine-tune the needs, costs, and methodologies used in allocating the costs for each facility. For purposes of the fee program, it was determined that a planning horizon through 2035 would be appropriate. Importantly, escalations in project construction costs could be included in future fee increases that would need to be approved by the Palo Alto City Council. The final Needs List is shown on the following page. City of Palo Alto Development Impact Fee Justification Study Page 13 April 29, 2014 DAVID TAUSSIG JOma81ASSOCIATES SECTION IV: THE NEEDS LIST DEVELOPMENT IMPACT FEE PROGRAM CITY OF PALO ALTO PUBLIC FACILITIES NEEDS LIST THROUGH 2035 Facility Name (2) 13) (4) (5) (6) Percent of Cost Total Cost for Facility Off -setting Revenues Net Cost to City Allocated to Cost Allocated to Policy Background or New New Development Objective Development A. PUBLIC SAFETY CITY-WIDE FACILITIES 1. Police Facilities 1 Public Safety Building (PSB")- Replace (44,850 square feet) subtotal 2. Flre Facilities 2 Fire Station 3 (Rinconada Park - built 1948) - Replace 3 Are Station 4 (Meadow/Middlefield - built 1953) - Replace 4 BC Van(x2) 5 Fire Trucks (x 2) 6 Type It Engine (x 2) 7 Training Tower & Related Land Acquisition 8 Type I Engine (x 8) - 2024 9 Ambulances (x 4) - 2022-2025 10 Miscellaneous Upgrades (Van, Trucks, Engines, Ambulances) Subtotal 11 Public Safety Revenues not yet Committed TOTAL PUBLIC SAFETY FACILITIES $57,000000 $0 $57,000,000 15.19% $8,656,457 Comprehensive Plan S57,000,000 SO $57,000,000 15.19% $8,656,457 86,700,000 $0 $6,700.000 53.15% $3,561,297 Comprehensive Plan $7,500,000 50 $7,500.000 53.15% $3,986,526 Comprehensive Plan $200,000 00 $200,000 30-37% $60,747 Comprehensive Plan $2,000,000 $0 $2,000.000 30.37% $607,471 Comprehensive Plan $800,000 $0 $800,000 30.37% $242,988 Comprehensive Phan $8,000,000 $0 $8,000,000 15.19% $1,214,941 Comprehensive Plan $4,200,000 $0 $4,200,000 30.37% $1,275,688 Comprehensive Plan $1,300000 00 61,300,000 30.37% $394,856 Comprehensive Plan $8,500,000 $0 $8,500,000 30.37% 52,581,755 Comprehensive Plan 039,200,000 $0 539,200,000 35.53% 513,926,266 50 $0 NA 00 896,200,000 50 696,200,000 23.47% $22,582,723 B. GENERAL GOVERNMENT FACILITIES CITY-WIDE FACILITIES 1 information Technology Upgrades 2 Buildings Systems Improvements 3 Civic Center Plaza Deck 4 Municipal Service Center Improvements (Immediate) 5 Municipal Services Center - Replace 6 Ventura Buildings Improvements 7 General Government Revenues not yet Committed TOTAL GENERAL GOVERNMENT FACILITIES $750,000 ($75,000) $6,300,000 ($100,000) $16,000,000 $0 $1,991,000 $0 $93,000,000 ($32,550,000) $690,000 $0 $0 $118,731,000 ($32,726,000) $675,000 15.19% $102,511 Comprehensive Plan $6,200,000 15.19% $941,580 Comprehensive Plan 516,000,000 15.19% $2,429,883 Comprehensive Plan $1,991,000 15.19% $302,369 Comprehensive Plan $60,450,000 15.19% $9,180,401 Comprehensive Plan $690,000 15.19% $104,789 Comprehensive Plan $0 NA $0 $86,006,000 16.19% S13,051,531 Total all Facilities $214,931,000 ($32,725,000) ;182,206,090 19.56% $35,644,254 City of Palo Alto Development Impact Fee Justification Study Page 14 April 29, 2014 DAVID TAUSSIG SECTION V: METHODOLOGY USED TO & ASSOCIATES CALCULATE FEES Pursuant to the nexus requirements of Government Code 66000, a local agency is required to "determine how there is a reasonable relationship between the amount of the fee and the cost of the public facility or portion of the public facility attributable to the development on which the fee is imposed." It is impossible to precisely determine the impact that a specific new residential unit, commercial project, or industrial development will have on existing facilities. Additionally, predicting future residents' or employees' specific behavioral patterns, park and transportation, and health and welfare requirements is extremely difficult, and would involve numerous assumptions that are subject to substantial variation. Recognizing these limitations, the Legislature drafted AB 1600 to specifically require that a "reasonable" relationship be determined, not a direct cause and effect relationship. There are many methods or ways of calculating fees, but they are all based on determining the cost of needed improvements and assigning those costs equitably to various types of development. Each of the fee calculations employs the concept of an Equivalent Dwelling Unit ("EDU") or Equivalent Benefit Unit ("EBU") to allocate benefit among the five (5) land use classes. EDUs are a means of quantifying different land uses in terms of their equivalence to a residential dwelling unit, where equivalence is measured in terms of potential infrastructure use or benefit for each type of public facility. For many of the facilities considered in this Fee Study, EDUs are calculated based on the number of residents or employees ("Persons Served") generated by each land use class. For other facilities, different measures, such as number of trips, more accurately represent the benefit provided to each land use class. Table 6 below shows total existing and projected EDUs or EBUs by facility type. Notably, "Persons Served" equal Residents plus 50% of Employees, and is a customary industry practice designed to capture the reduced levels of service demanded by employees. TABLE 6 CITY OF PALO ALTO CITY EQUIVALENT DWELLING UNITS Countywide Facility Type Service Factor Existing EDUs/EBUs Projected EDUs/EBUs Total Public Safety Facilities General Government Facilities Persons Served Persons Served 43,597 43,597 7,807 7,807 51,404 5 1,404 JI The following sections present the reasonable relationship for benefit, impact, and rough proportionality tests for each fee element (Le., public safety and general government) and the analysis undertaken to apportion costs for each type of facility on the Needs List. More detailed fee calculation worksheets for each type of facility are included in Appendix A. Importantly, since the level of service ("LOS") being requested for new development by City department heads is above the existing service level for certain types of facility, the cost of the new facilities has been carefully apportioned between existing and new development in the following manner: City of Palo Alto Development Impact Fee Justification Study Page 15 April 29, 2014 DAVID TAUSSIG SECTION V: METHODOLOGY USED TO Oma & ASSOCIATES CALCULATE FEES 1. New development was assigned 100% of the cost for a LOS that is equivalent to the existing LOS within the City. 2. The cost of the incremental difference between the new, higher LOS being requested by the City and the existing LOS was then allocated between existing development and new development, based on the relative number of equivalent dwelling units ("EDUs") assigned to existing development and new development. City of Palo Alto Development Impact Fee Justification Study Page 16 April 29, 2014 ES DAVID TAUSSIG SECTION V: METHODOLOGY USED TO & ASSOCIATES CALCULATE FEES A. PUBLIC SAFETY FACILITIES The Public Safety element includes those facilities used by the City to protect life and property. In order to serve new development through buildout in 2035, the City identified the need for two (2) new fire stations. One (1) of the two (2) fire stations, and the equipment required to service this fire station, is needed to serve new development almost exclusively and will be funded 100% by new development, while the other fire station will serve both new and existing development. Thus, the cost of the incremental difference between the new, higher LOS being requested by the City and the existing LOS has been allocated between existing development and new development, based on the relative number of EDUs assigned to existing development and new development. Additionally, there is a need for other facilities, public safety specialty vehicles, and training stations to serve both existing and projected development. Therefore, the costs of these facilities have been allocated between existing development and new development based on their percentage of build out EDUs. TABLE 7 PUBLIC SAFETY FACILITIES ELEMENT Identify Purpose of Fee Identify Use of Fee Demonstrate how there is a reasonable relationship between the need for the public facility, the use of the fee, and the type of development project on which the fee is imposed Public Safety Facilities Construction, acquisition and/or upgrade of Police and Fire Facilities and equipment New residential and non-residential development will generate additional residents and employees who will require additional service calls increasing the need for trained Police and Fire personnel. Buildings and vehicles used to provide these services will have to be expanded, constructed, or purchased to meet this increased demand. Thus a reasonable relationship exists between the need for Public Safety facilities and the impact of residential and non-residential development. The Public Safety fees collected from new development will be used exclusively for public safety purposes. City of Palo Alto Development Impact Fee Justification Stud Page 17 April 29. 2014 AL DAVID TAUSSIG J PS & ASSOCIATES SECTION V: METHODOLOGY USED TO CALCULATE FEES Table 8 below identifies the facilities proposed to be funded in whole or in part with the collection of Public Safety fees. Costs are based on estimates provided by the City. TABLE 8 PUBLIC SAFETY FACILITIES FACILITY COSTS Public Safety Facilities Facility Public Safety Building ("PSB") - Replace (44,850 square feet) $57',000,000 Fire Station 3 (Rinconada Park - built 1948) - Replace $6,700,000 Fire Station 4 (Meadow/Middlefield - built 1953) - Replace $7,500,000 BC Van (x 2) $200,000 Fire Trucks (x 2) $2.000,000 Type III Engine (x 2) $800,000 Training Tower & Related Land Acquisition $8,000,000 Type I Engine (x 3) - 2024 $4.200.000 Ambulances (x 4) - 2022-2025 $1;800;000 Miscellaneous Upgrades iyan, Trucks, Engines, Ambulances) $8.500,000 Public Safety Revenues not yet Committed $0 TOTAL PUBLIC SAFETY FACILITIES $96,200,000 Calculation Methodology Fee amounts for this element were calculated for both residential and non- residential land uses as detailed in Appendix A. Each land use classification was assigned an EDU factor which was derived from the number of Persons Served, which again is defined as the persons per household (for residential units) and 50% of the number of employees per 1,000 building square feet of each category of non-residential development. Public Safety Building Improvements According to the City, it has been determined that this facility is needed to serve new development. Currently, this proposed facility is operating at an appropriate and acceptable level of service; therefore, the costs of facilities have been allocated to new development and existing development based on their percentage of their expected facility usage at build out. Consequently, 84.81% of the costs will be allocated to existing development and 15.19% of the costs will be allocated to new development. City of Palo Alto Development Impact Fee Justification Study Page 18 April 29, 2014 AL DAVID TAUSSIG J Fa & ASSOCIATES SECTION V: METHODOLOGY USED TO CALCULATE FEES TABLE 9 PUBLIC SAFETY BUILDING IMPROVEMENT COST ALLOCATION SUMMARY Public Safety Building Replacement Percentage Allocated to Total Square Facility Cost New Development Feet Allocated Allllocated Existing Development 84.81% 38,039 $48,343,543 New Development 15.19.,,_, 6,811 $8,656,457 Total 100% 44,850 $57,000,000 Fire Station Improvements According to the City, it has been determined that these facilities are needed to serve new development. Currently, these facilities are generally operating at an appropriate and acceptable level of service, though less so than many of the other public safety facilities and improvements; therefore, the costs of facilities have been allocated to new development and existing development based on their percentage of their expected facility usage at build out. Consequently, 46.85% of the costs will be allocated to existing development and 53.15% of the costs will be allocated to new development. TABLE 10 FIRE STATION IMPROVEMENTS COST ALLOCATION SUMMARY Existing Development Fire Station Improvments New Development of erceritage Allocated to plumber New Facility Units Allocated New Development 40.85% 53.15% $6.652,177 0.94 1.06 Facility Cost Allocated $7,547,823 Tota 1 100% 2.00 I $14,200,000 Public Safety Vehicles According to the City, it has been determined that these facilities are needed to serve new development. Currently, these facilities are generally operating at an appropriate and acceptable level of service; therefore, the costs of facilities have been allocated to new development and existing development based on their percentage of their expected facility usage at build out. Consequently, 69.63% of the costs will be allocated to existing development and 30.37% of the costs will be allocated to new development. City of Palo Alto Development Impact Fee Justification Study Page 19 April 29, 2014 DAVID TAUSSIG JOma 82 ASSOCIATES SECTION V: METHODOLOGY USED TO CALCULATE FEES TABLE 11 PUBLIC SAFETY VEHICLES COST ALLOCATION SUMMARY Public Safety Vehicl ercentage Allocated to New Development Number of New 'Facility Units Allocated III Facility Cost Allocated Existing Development t39,u3% 12.53 $11.336.499 New Development 30.37% 5.47 $5,153,501 Total 100% 18.00 $17,000,000 Public Safety Training Tower Modernization According to the City, it has been determined that this facility modernization is needed to serve new development. Currently, this facility is operating at an appropriate and acceptable level of service; therefore, the costs of facilities have been allocated to new development and existing development based on their percentage of their expected facility usage at build out. Consequently, 84.81% of the costs will be allocated to existing development and 15.19% of the costs will be allocated to new development. TABLE 12 PUBLIC SAFETY TRAINING TOWER MODERNIZATION COST ALLOCATION SUMMARY Public Safety Training Tower Modernization Number of Percentage Allocated to New Development New Facility Units Allocated Facility Cost Allocated Existing Development Fee Amounts Table 13 presents a summary of the derivation of EDUs, fee amounts, and the costs financed by fees for the Public Safety Facilities on the Needs List. The details of the fee calculation are presented in Appendix A. City of Palo Alto Development Impact Fee Justification Study Page 20 April 29, 2014 DAVID TAUSSIG JOma 82 ASSOCIATES SECTION V: METHODOLOGY USED TO CALCULATE FEES TABLE 13 PUBLIC SAFETY FACILITIES FEE DERIVATION SUMMARY Land Use Type EDUs Per Unit/1,000 Non -Res_ SF Fee per Unit/1,000 Non -Res_ SF Number of Units/Non-Res_ 1,000 SF Cost Financed by Fees Single Family Residential 1.00 $2,893 2,552 $7.382,429 Multi Family Residential 0.80 $2,314 1,571 $3,635.639 Commercial 0.56 $1,619 893 $1,445,601 Office/Institutional 0.47 $1,349 5,837 $7,875,517 Industrial 0.19 $540 4.157 $2.243.537 Total Allocation to New Development= $22,582,723 Outside Funding Responsibility_ $73,617,277 Total Facilities Costs: $96,200,000 Based on the development projections in Appendix A, the fee amounts presented in Table 13 will finance 23.47% of the net costs of the Public Safety Facilities identified on the Needs List. The remaining 76.53% of the net costs of facilities will be funded through other sources. City of Palo Alto Development Impact Fee Justification Study Page 21 April 29, 2014 at DAVID TAUSSIG J Pa & ASSOCIATES B. GENERAL GOVERNMENT FACILITIES SECTION V: METHODOLOGY USED TO CALCULATE FEES The General Government Facilities Element includes those facilities used by the City to provide basic governmental services and public facilities maintenance services, exclusive of public safety. Identify Purpose of Fee Identify Use of Fee Demonstrate how there is a reasonable relationship between the need for the public facility, the use of the fee, and the type of development project on which the fee is imposed TABLE 14 GENERAL GOVERNMENT FACILITIES General Government Service Facilities Modernization of City Office and Building Improvements and Replacement of Municipal Services Center. New residential and non-residential development in the City will generate additional residents and employees who will increase the demand for services, including municipal services and general government functions. Population and growth has a direct impact on the need for government services and facilities, thus a reasonable relationship exists between new development and government facilities, which will have to be acquired to meet the increased demand. Fees collected from new development will be used exclusively for the City Government Service Facilities on the Needs List. TABLE 15 GENERAL GOVERNMENT FACILITIES COST General Government Facilities Facility Cost Information Technology Upgrades $676,000 Buildings Systems Improvements $6,200,000 Civic Center Plaza Deck $16,000.000 Municipal Service Center Improvements (Immediate) $1,991,000 Municipal Services Center - Replace $60,460,000 Ventura Buildings. Improvements $690.000 General Government Revenues not yet Committed $0 TOTAL GENERAL GOVERNMENT FACILITIES $86,005,000 City of Palo Alto Development Im act Fee Justification Stud Page 22 April 29. 2014 ES DAVID TAUSSIG SECTION V: METHODOLOGY USED TO & ASSOCIATES CALCULATE FEES Calculation Methodology Fee amounts for this element were calculated for both residential and non-residential land uses as detailed in Appendix A. Each land use classification was assigned an EDU factor which was derived from the number of Persons Served, which again is defined as the persons per household (for residential units) and 50% of the number of employees per 1,000 building square feet of each category of non-residential development. CITY OFFICE AND BUILDING IMPROVEMENTS According to the City, it has been determined that these facilities are needed to serve new development. Currently, these facilities are operating at an appropriate and acceptable level of service; therefore, the costs of facilities have been allocated to new development and existing development based on their percentage of their expected facility usage at build out. Consequently, 84.81% of the costs will be allocated to existing development and 15.19% of the costs will be allocated to new development as presented in Table 16 below. TABLE 16 CITY OFFICE AND BUILDING IMPROVEMENTS COST ALLOCATION SUMMARY City Office and Building Percentage ,i placated to Total Square Faciiiity Coast Improvements New Development Feet Allocated Allocated Existing Development Municipal Services Center Replacement 84.81% 18,219 $21,674,870 According to the City, it has been determined that these facilities are needed to serve new development. Currently, these facilities are operating at an appropriate and acceptable level of service; therefore, the costs of facilities have been allocated to new development and existing development based on their percentage of their expected facility usage at build out. Consequently, 84.81% of the costs will be allocated to existing development and 15.19% of the costs will be allocated to new development as presented in Table 17 below. City of Palo Alto Development Impact Fee Justification Study Page 23 April 29, 2014 DAVID TAUSSIG JOma 82 ASSOCIATES SECTION V: METHODOLOGY USED TO CALCULATE FEES TABLE 17 MUNICIPAL SERVICES CENTER REPLACEMENT COST ALLOCATION SUMMARY EMsling Development 54.51°l Municipal Services Center Replacement ercentage Allocated t New Development 11.11 Number of New Facility nits Allocated 70.395 $51.269.599 Facility Cost Allocated Nev, Development 15.19 12.605 $9,150,401 Total 100% 83 000 1 $60.450.000 Fee Amounts Table 18 presents a summary of the derivation of EDUs, fee amounts and the costs financed by fees for the general government facilities on the Needs List. The details of the fee calculation are presented in Appendix A. TABLE 18 GENERAL GOVERNMENT FACILITIES FEE DERIVATION SUMMARY Land Use Type Single Family Residential EDUs Per Unit/1,000 Non -R _ SF 1.00 Fee per Unit/1,000 Non -Res_ SF $1,673 Number of Units/Non-Res_ 1,000 SF 2,552 Cost Financed by Fees $4,269,893 Multi Family Residential 0.80 $1,339 1,571 $2402,803 Commercial 0.56 $936 893 $836,116 Office/Institutional 0.47 $780 5.837 $4,555.089 Industrial 0.19 $312 4,157 $1,297,630 Total Allocatiorn to New development_ $13,061,631 Outside Funding Responsibility_ $72,944,469 Total Facilities Costs: $86,006,000 Based on the development projections in Appendix A, the fee amounts presented in Table 18 will finance 15.19% of the net costs of the General Government Facilities identified on the Needs List. The remaining 84.81% of the net costs of facilities will be funded through other sources. City of Palo Alto Development Impact Fee Justification Study Page 24 April 29, 2014 Jilk DAVID TAUSSIG & ASSOCIATES SECTION VI: SUMMARY OF FEES The total fee amounts to finance new development's share of the costs of facilities in the Needs Lists are summarized in Tables 19 & 20 below. TABLE 19 DEVELOPMENT IMPACT FEE SUMMARY City Facilities Residential Non -Residential Singe Family Multi -Family Commercial Office/Institutional Public Safety Facilities General Government Facilities Total 57,382,429 54,269,893 $11,652,322 S3,635,639 52,1012,803 $5,738.,441 51,445,601 5836,116 $2,281,717 TABLE 20 DEVELOPMENT IMPACT FEE SUMMARY 87,875,517 54,555,089 $12,430,606 City Facilities Residential (Per Unit) Non -Residential (Per 1,000 13SF) Single Family Multi -Family Commercial Office/Institutional Industrial Public Safety Facilities 52,893 52,314 51,619 51,349 5540 General Government Facilities 51,673 81,339 5936 8780 5312 Total $4,566 $3,653 $2,556 $2,130 5852 http://localhost/resources/home/Clients/Palo Alto/AB 1600 - 2012/AB 1600 Update/DIFReport DRAFT v.8.docx City of Palo Alto Development Impact Fee Justification Study Page 25 April 29, 2014 Appendix A Fee Derivation Worksheets City of Palo Alto Public Safety Fee Calculation 1. Inventory of Existing Facilities Facility Type Public Safety Building (Replacement) Fire Stations (Modernized) Vehicles (Van, Trucks, Engines, Ambulances) Training Tower (Modernized) Public Safety Facilities Quantity Facility Units O Square Feet 5 Integrated Facility 18 No. of Vehicles 0 Integrated Facility NA II. Existing EDU Calculation NA Land Use Type Single Family Residential Multi Family Residential Commercial Office/Institutional Industrial Total [a] [d] Number of [b] [c] Total Units/ Persons Served per Unit/ EDUs per Unit/ Number of EDUs Non -Res. 1,000 SF 1,000 Non -Res. SF Per 1,000 Non -Res. SF [a]"[c] 17,614 10,843 3,887 25,414 18,099 2.68 2.12 1.50 1.25 0.50 1.00 0.79 0.56 0.47 0.19 17,614 8,577 2,176 11,853 3,377 43,597 III. Existing Facility Standard Facility Type Public Safety Building (Replacement) Fire Stations (Modernized) Vehicles (Van, Trucks, Engines, Ambulances) Training Tower (Modernized) Public Safety Facilities IV. Future EDU Calculation Quantity Facility Units O Square Feet 5 Integrated Facility 18 No. of Vehicles O Integrated Facility NA NA Quantity per 1,000 EDU's 0 0.11 0.41 0 NA Land Use Type Single Family Residential Multi Family Residential Commercial Office/Institutional Industrial Total [a] [b] [d] Number of Residents per Unit/ [c] Total Units/ Employees per EDUs per Number of EDUs Non -Res. 1,000 SF [1] Non -Res. 1,000 SF [2] Unit/per 1,000 Non -Res. SF [a]*[c] 2,552 1,571 893 5,837 4,157 2.68 2.12 1.50 1.25 0.50 1.00 0.80 0.56 0.47 0.19 2,552 1,257 500 2,722 776 7,807 V. Proposed Inventory, Cost, and Service Standard Facility Type Public Safety Building (Replacement) Fire Stations (Modernized) Vehicles (Van, Trucks, Engines, Ambulances) Training Tower (Modernized) Offsetting Revenues Total Cost of Public Safety Facilities Quantity Facility Units 44,850 Square Feet 2 Integrated Facility 18 No. of Vehicles 1 Integrated Facility VI. Allocation of Public Safety Facilities to Existing & New Development (based on total EDUs) A.1 Public Safety Building Improvements [a] Existing SF Per 1,000 EDU's Quantity Facility Cost per 1,000 EDU's $57,000,000 5,745.17 $14,200,000 0.26 $17,000,000 2.31 $8,000,000 0.13 $0 $96,200,000 0.00 [b] [c] [d] [e] [t] [gl Total Future SF Allocated 100% Proposed Service SF per EDU SF Beyond Existing Total Proposed EDU's To New Development [3] Standard Per Beyond Existing Service Standard [4] New SF [gib] 1,000 EDU's [d] -[a] [b]'[e] [c]+[f] 7,806.55 0.00 5,745.17 5,745.17 44,850.00 44,850.00 A-1 City of Palo Alto Public Safety Fee Calculation A.2 SF Beyond Existing Service Standard Split Between New and Existing, plus Facility Units allocated 100% to New Development Facility Type Existing New Development Total Facility Units Split Facility Units Number of Percentage of Total Between New and Existing Allocated 100% To Total Facility Units EDU's EDU's Development New Development Allocated 43,597 7,807 84.81 % 15.19% 38,038.73 6,811.27 NA 38,038.73 0.00 6,811.27 51,404 100.00% 44,850.00 44,850.00 A.3 Cost Allocated Between Existing and New Development Facility Type Existing New Development Total Total Number of SF Percentage of Cost Allocated Facility Cost 38,039 6,811 84.81% 15.19% $48,343,543 $8,656,457 44,850 100.00% $57,000,000 B.1 Fire Station Improvements [a] Existing Facility Units Per 1,000 EDU's [b] [c] Total Future Facility Units Allocated 100% EDU's To New Development [3] [a]*[b] [d] [e] [1] [g] Proposed Service Facility Units per EDU Facility Units Beyond Total Proposed Standard Per Beyond Existing Existing Service Standard [4] New Facility Units 1,000 EDU's [d] -[a] [b]*[e] [c]+[f] 0.11 7,806.55 0.90 0.26 0.14 1.10 2.00 B.2 Facility Units Beyond Existing Service Standard Split Between New and Existing, plus Facility Units allocated 100% to New Development Facility Type Existing New Development Total Facility Units Split Number of Percentage of Total Between New and Existing EDU's EDU's Development Facility Units Allocated 100% To Total Facility Units New Development Allocated 43,597 7,807 84.81% 15.19% 0.94 0.17 0.90 1.10 NA 0.94 1.06 2.00 51,404 100.00% B.3 Cost Allocated Between Existing and New Development Facility Type Existing New Development Total Total Number of New Facility Units Percentage of Cost Allocated Facility Cost 0.94 1.06 2.00 46.85% 53.15% $6,652,177 $7,547,823 100.00% $14,200,000 C.1 Public Safety Vehicles [a] Existing Facility Units Per 1,000 EDU's [b] [c] Total Future Facility Units Allocated 100% EDU's To New Development [3] [a]*[b] [d] [el [f] [g] Proposed Service Facility Units per EDU Facility Units Beyond Total Proposed Standard Per Beyond Existing Existing Service Standard [4] New Facility Units 1,000 EDU's [d] -[a] [b]*[e] [c]+[f] 0.41 7,806.55 3.22 2.31 1.89 14.78 18.00 C.2 Facility Units Beyond Existing Service Standard Split Between New and Existing, plus Facility Units allocated 100% to New Development Facility Units Split Facility Units Number of Percentage of Total Between New and Existing Allocated 100% To Total Facility Units EDU's EDU's Development New Development Allocated Facility Type Existing New Development Total 43,597 84.81 % 7,807 15.19% 12.53 NA 12.53 2.24 3.22 5.47 51,404 100.00% 14.78 18.00 A-2 City of Palo Alto Public Safety Fee Calculation C.3 Cost Allocated Between Existing and New Development Facility Type Existing New Development Total Total Number of Facility Units Percentage of Cost Allocated Facility Cost $11,836,499 12.53 5.47 69.63% 30.37% $5,163,501 18.00 100.00% $17,000,000 D.1 Public Safety Training Tower (Modernized) [a] Existing Facility Units Per 1,000 EDU's [b] [c] Total Future Facility Units Allocated 100% EDU's To New Development [3] [a]"[b] [d] [e] [1] [g] Proposed Service Facility Units per EDU Facility Units Beyond Total Proposed Standard Per Beyond Existing Existing Service Standard [4] New Facility Units 1,000 EDU's [d] -[a] [b]*[e] [c]+[f] 0.00 7,806.55 0.00 0.13 0.13 1.00 1.00 D.2 Facility Units Beyond Existing Service Standard Split Between New and Existing, plus Facility Units allocated 100% to New Development Facility Type Existing New Development Total Facility Units Split Number of Percentage of Total Between New and Existing EDU's EDU's Development Facility Units Allocated 100% To Total Facility Units New Development Allocated 43,597 84.81% 0.85 NA 0.85 7,807 15.19% 0.15 0.00 0.15 51,404 100.00% 1.00 1.00 D.3 Cost Allocated Between Existing and New Development Facility Type Existing New Development Total Total Number of Facility Units 0.85 0.15 1.00 Percentage of Cost Allocated 84.81% 15.19% 100.00% Facility Cost $6,785,059 $1,214,941 $8,000,000 VII. Summary Cost Data Section VI E.1 Cost Allocated Facility Type to New Development Total Future EDU's Cost Per EDU Total Public Safety Facilities Offsetting Revenues $22,582,723 $0 $22,582,723 7,807 $2,892.79 7,807 $0.00 $2,892.79 VIII. Development Impact Fee per Unit or per 1,000 Non -Res. SF Land Use Type EDUs Per Unit/1,000 Non -Res. SF Fees Per Unit/1,000 Non -Res. SF Number of Units/ Non -Res. 1,000 SF Cost Financed by DIF Single Family Residential 1.00 $2,893 2,552 $7,382,429 Multi Family Residential 0.80 $2,314 1,571 $3,635,639 Commercial 0.56 $1,619 893 $1,445,601 Office/Institutional 0.47 $1,349 5,837 $7,875,517 Industrial 0.19 $540 4,157 $2,243,537 Total Allocated to New Development $22,582,723 Outside Funding Responsibility $73,617,277 Total Cost of Public Safety Facilities $96,200,000 Niles: [1] Expected Housing Units based on data provided by the City of Palo Alto's Planning Department, confirmed by ABAG. [2] Average Household She Based on information obtained from the California Department of Finance (2013). City, and U.S. Census Bureau. [3] Allocates 100% to new development square feet or equipment necessary to fund existing service standard for new residents. [4] Denotes proposed service standard in excess to that currently provided to existing residents. A-3 City of Palo Alto General Government Fee Calculation I. Inventory of Existing Facilities Facility Type City Office & Building Improvements (Modernized) Municipal Services Center Replacement City Office & Building Improvements Quantity Facility Units 0 0 Square Feet Square Feet NA NA 11. Existing EDU Calculation Land Use Type Single Family Residential Multi Family Residential Commercial Office/Institutional Industrial Total [a] Number of [b] Units/ Persons Served per Unit/ Non -Res. 1,000 SF 1,000 Non -Res. SF [d] [c] Total EDUs per Unit/ Number of EDUs Per 1,000 Non -Res. SF rap[c] 17,614 10,843 3,887 25,414 18,099 2.68 2.12 1.50 1.25 0.50 1.00 0.79 0.56 0.47 0.19 17,614 8,577 2,176 11,853 3,377 43,597 IS Existing Facility Standard Facility Type City Office & Building Improvements (Modernized) Municipal Services Center Replacement City Office & Building Improvements Quantity Quantity Facility Units per 1,000 EDU's IV. Future EDU Calculation 0 0 NA Square Feet Square Feet NA 0 0 NA Land Use Type Single Family Residential Multi Family Residential Commercial Office/Institutional Industrial Total [a] [b] [d] Number of Residents per Unit/ [c] Total Units/ Employees per EDUs per Number of EDUs Non -Res. 1,000 SF [1] Non -Res. 1,000 SF [2] Unit/per 1,000 Non -Res. SF [a]`[c] 2,552 1,571 893 5,837 4,157 2.68 2.12 1.50 1.25 0.50 1.00 0.80 0.56 0.47 0.19 2,552 1,257 500 2,722 776 7,807 V. Proposed Inventory, Cost, and Service Standard Facility Type City Office & Building Improvements (Modernized) Municipal Services Center Replacement Offsetting Revenues Total Cost of General Government Facilities Quantity 21,481 83,000 Facility Units Square Feet Square Feet Quantity Facility Cost per 1,000 EDU's $25,556,000 $60,450,000 $0 $86,006,000 2,751.66 10,632.09 VI. Allocation of General Government Facilities to Existing & New Development (based on total EDUs) A.1 City Office & Building Improvements [a] Existing SF Per 1,000 EDU's 0.00 [b] [c] Total Future SF Allocated 100% EDU's To New Development [3] [a]'@] 7,806.55 0.00 [d] [el [11 [g] Proposed Service SF per EDU SF Beyond Existing Total Proposed Standard Per Beyond Existing Service Standard [4] New SF 1,000 EDU's [d] -[a] [b]•[e] [c]+[f] 2,751.66 2,751.66 21,481.00 21,481.00 A.2 SF Beyond Existing Service Standard Split Between New and Existing, plus SF allocated 100% to New Development Facility Type Existing New Development Total Number of EDU's Percentage of Total EDU's Facility Units Split Facility Units Between New and Existing Allocated 100% To Total Facility Units Development New Development Allocated 43,597 84.81 18,218.73 NA 18,218.73 7,807 15.19% 3,262.27 0.00 3,262.27 51,404 100.00% 21,481.00 21,481.00 A-4 City of Palo Alto General Government Fee Calculation A.3 Cost Allocated Between Existing and New Development Facility Type Existing New Development Total Total Number of SF Percentage of Cost Allocated Facility Cost $21,674,870 18,218.73 3,262.27 84.81% 15.19% $3,881,130 21,481.00 100.00% $25,556,000 8.1 Municipal Services Center Replacement [a] Existing SF Per 1,000 EDU's [b] Total Future SF Allocated 100% EDU's To New Development [3] [a][b] [c] [d] [e] [1] [g] Proposed Service SF per EDU SF Beyond Existing Total Proposed Standard Per Beyond Existing Service Standard [4] New SF 1,000 EDU's [d] -[a] [b]*[e] [c]+[f] 0.00 7,806.55 0.00 10,632.09 10,632.09 83,000.00 83,000.00 B.2 Facility Units Beyond Existing Service Standard Split Between New and Existing, plus SF allocated 100% to New Development Facility Type Existing New Development Total Number of EDU's Percentage of Total EDU's Facility Units Split Facility Units Between New and Existing Allocated 100% To Total Facility Units Development New Development Allocated 43,597 7,807 84.81% 15.19% 70,394.98 12,605.02 83,000.00 NA 70,394.98 0.00 12,605.02 51,404 100.00% 83,000.00 B.3 Cost Allocated Between Existing and New Development Facility Type Existing New Development Total Total Number of New Facility Units Percentage of Cost Allocated Facility Cost $51,269,599 70,394.98 12,605.02 83,000.00 84.81% 15.19% $9,180,401 100.00% $60,450,000 VII. Summary Cost Data Section VI C.1 Cost Allocated Facility Type to New Development City Office & Building Improvements Offsetting Revenues Total $13,061,531 $0 $13,081,531 Total Cost Per Future EDU's EDU 7,807 7,807 $1,673.15 $0.00 $1,673.15 VIII. Development Impact Fee per Unit or per 1,000 Non -Res. SF Land Use Type EDUs Per Unit/1,000 Non -Res. SF Fees Per Unit/1,000 Non -Res. SF Number of Units/ Non -Res. 1,000 SF Cost Financed by DIF Single Family Residential 1.00 $1,673 2,552 $4,269,893 Multi Family Residential 0.80 $1,339 1,571 $2,102,803 Commercial 0.56 $936 893 $836,116 Office/Institutional 0.47 $780 5,837 $4,555,089 Industrial 0.19 $312 4,157 $1,297,630 Total Allocated to New Development $13,061,531 Outside Funding Responsibility $72,944,469 Total Cost of General Government Facilities $86,006,000 Noes: [1] Expected Housing Units based on data provided by the City of Palo Alto's Planning Department, confirmed by ABAG. [2] Average Household Sin Based on information obtained from the Cademla Department of Finance (2013), City, and U.S. Census Bureau. [3] Allocates 100% to new development square feet or equipment necessary to fund existing service standard for new residents. [4] Denotes proposed service standard in excess to that currently provided to eksting residents. A-5 City of Palo Alto EBU & EDU Calculation Year to Build -Out (2035) Existing EDU Calculation Service Factor (Residents and Employees) Number of Land Use Type Persons Served * Single Family Residential Multi Family Residential Commercial Office/Institutional Industrial Residents per Unit**/ Persons Served per 1,000 Non -Res. SF EDUs per Unit/ per 1,000 Non -Res. SF Total Number of EDUs 47,206 22,987 5,831 31,767 9,050 2.68 2.12 1.50 1.25 0.50 1.00 0.80 0.56 0.47 0.19 17,614 8,674 2,176 11,853 3,377 43,694 Total 116,840 * Source: David Taussig & Associates; City of Palo Alto Comprehensive Plan, U.S. Census Bureau QuickFacts (American Community Survey). ** Persons Served = Residents plus 50% of Employees, customary industry practice designed to capture the reduced levels of service demanded by employee Future EDU Calculation Service Factor (Future Residents and Employees Number of Land Use Type Persons Served * Single Family Residential 6,839 Multi Family Residential 3,331 Commercial 1,339 Office/Institutional 7,296 Industrial 2,079 Residents per Unit**/ Persons Served per EDUs per Unit/ 1,000 Non -Res. SF per 1,000 Non -Res. SF Number of EDUs Total 2.68 1.00 2,552 2.12 0.80 1,257 1.50 0.56 500 1.25 0.47 2,722 0.50 0.19 776 Total 20,884 7,807 * Source: David Taussig & Associates; City of Palo Alto Comprehensive Plan, U.S. Census Bureau QuickFacts (American Community Survey). ** Persons Served = Residents plus 50% of Employees, customary industry practice designed to capture the reduced levels of service demanded by employee A-6 DAVID TAUSSIG I jFAI& ASSOCIATES Public Finance Public Private Partnerships Urban Economics 2250 Hyde Street 5th Floor San Francisco, CA 94109 Phone (800) 969-4382 City of Palo Alto Development Impact Fees As per FY 2014 Adopted Municipal Fee Schedule page 17-3, with revisions Fee Category Type of Project Parks Community Centers Libraries Housing Total Fees (NIC Transp.) Transportation Residential - New Homes Only* Single family < 3,000 sq. feet Single family >3,000 sq. feet Multi -family <1= 900 sq. feet Multi -family >900 sq. feet $10,638/residence $15,885/residence $3,521/unit $6,963/unit $2,758/residence $4,129/residence $916/unit $1,815/unit $963/residence $1,434/residence $316/unit $565/unit EXEMPT EXEMPT EXEMPT EXEMPT $14,359/res. $21,448/res. $4,753/unit $9,343/unit $3,197 per net new PM peak hr trip $3,197 per net new PM peak hr trip $3,197 per net new PM peak hr trip $3,197 per net new PM peak hr trip Non-residential Commercial/Industrial Hotel/Motel $4,517 per 1,000 sq ft or fraction thereof $2,043 per 1,000 sq ft or fraction thereof $255 per 1,000 sq ft or fraction thereof $115 per 1,000 sq ft or fraction thereof $243 per 1,000 sq ft or fraction thereof $102 per 1,000 sq ft or fraction thereof $18.89 per sq ft $18.89 per sq ft $23.89 per net new sq ft $21.15 per net new sq ft $3,197 per net new PM peak hr trip $3,197 per net new PM peak hr trip Residential Subdivisions Single-family Multi -family Parkland Dedication Fee** 531 sq ft of parkland/unit or $58,366/unit in -lieu fee 366 sq ft of parkland/unit or $40,187/unit in -lieu fee Special Zones Stanford Research Park/EI Camino Real CS Zone San Antonio/West Bayshore Area Charleston/Arastradero Commercial Charleston/Arastradero Residential Parking in -lieu fee for Downtown Assessment District Traffic Impact Fee $11.08 per net new sq ft $2.28 per sq ft $0.34 per sq ft $1,168 per unit $60,750 per parking space Notes: "Single-family" is defined as a single dwelling unit that does not share a common wall with another dwelling unit *Square footage refers to living area, not lot size. **In -Lieu Parkland Dedication Fee is an option only for projects of < 50 parcels. Attachment C Polo Alto Development Lnipaet Fee Exemptions X Exempt NOTE: nen ttn exempt use changes to a non- empf use. rrfie is due. E.rernrtaure Housing Ce3uremrror0 Parables Traffic: ic_ CharlestariI A rrrstnxdew Citnivide T'n fuc Fee Trnffic_ Barr Antonio larrijrc= SRP Parki nd Dedication Ordinance section 16i.47_03T) 16.58.030 26. .040 1659 16.4+_0130 lt;_43_t)3t) 21_50.liifl Residential i 'xersrptlrme Single-family 'ermine remodels orcid diiiaiS All residerrieal uses ereanpt 4. ill rx.. therrirri: uses exempt Arr residential USES exempt New home au an empty parcel tlrel} dries rya subdivision orparcel Map is inquired Second li nits Multi -family Required .0MR rants Bel Market housing beevrrrarl required units 5 , 4, 100% A f f omi ble Housing Nam -Residential Earesptioars Demolition of e_ristellg building Pees may appll • if replacement building has additionalflodrirarea, or in the arse of the Citywide TIP, if the repracemeeret building Tereerales eiddiinamar raffia=, regardless of whether it remains titre Saga size or nrri_ A ll non - residential uses exempt Terrain improvements that tie? wet increase building area X X X 1 Churches X Colleges and iilniversitlet X Commercial recreation X Hospitals and convalescent facilities Private clubs, ledges, avid frroreoral ngeanizatinres Private educational factiilitier X Public buildings & schools .l' .. ,, X k Retail, ,iversimal service_ or automotive service 1.S(') ., ,.. or smaller (one -tame) 4 rklian-residential use 250 if. or smaller :b ' tiirxrdous materials storage • ti .5: X X . (he -site cafeteria, reci'eatio childcare (employee rase only), :4 :k, , Thermal l star a for renew conservation Temporary uses <♦$months X X LiffvceLre, nursery school. preschool h: ti i. X r_h'nt o, ear gineaoi public X if Noe open km,greeerd P C1 f,' ed 00_12 1120, ACTION ITEMS 8. From Finance Committee Review of Development Impact Fees: List of Public Facilities Capital Needs. Lalo Perez, Administrative Services Director and Chief Financial Officer, indicated Staff was asked to review Development Impact Fees (DIF). Information was introduced at the Finance Committee a few months prior. Nathan Perez, Vice President of David Taussig and Associates (DTA), reported DIF were not taxes, special assessments, or user fees. DIF could not be used to cover ongoing operations, maintenance costs, and the like. Per AB 1600, DIF were an attempt to allow municipalities to recover their fair share from new development. DIF had a nexus requirement and could not be arbitrary. DIF required a great deal of demographic research and costing of projected facilities throughout the timeframe of the Nexus Study update. The current study covered the timeframe through 2035. Previously the City asked DTA to provide a comparative survey of DIF for peer communities to Palo Alto. There were not many peer communities to Palo Alto. Sometimes information was difficult to obtain, because staff in other cities were not always helpful. Per the Finance Committee's request, DTA reviewed DIF as a percentage of average home sales price. With the $1.5 million average home price in December 2013, Palo Alto was in line with other cities on the Peninsula. DTA recommended updating the Citywide transportation fee, adding a public safety fee for the Public Safety Building, and adding a general government fee for larger municipal offices and capital improvements. DTA sought the Council's approval of the needs list. Following Council approval of the needs list, DTA would calculate fee levels and then prepare a draft and/or final Nexus Study for review. If the final study reflected updates to fees, they would be incorporated via City Ordinance and could be a source for additional revenue in the future. Mr. Lalo Perez noted the Infrastructure Committee was working on funding for infrastructure projects. Some of the numbers on the needs list would not align to the infrastructure item later in the Agenda. Staff requested the Council focus on the list itself. The cost and funding sources would be updated as decisions were made. The needs list contained more projects than the infrastructure project list, because the Infrastructure Committee was considering projects that were not fundable with existing City funds. Staff compiled the needs list beginning with projects that were currently in the Capital Improvement Program (CIP). The needs list was a snapshot in time for projects likely to be undertaken. Staff initially had an effective date of July 1. It became evident in Finance Committee discussions that Staff needed more time to review the project list. The Finance Committee questioned why the water, sewer and storm drain fee connections seemed to Page 9 of 31 City Council Meeting Minutes: 03/03/14 be higher than surrounding benchmarked cities. In 2008, the Council approved an increase in fees be phased in over three years based upon a fee analysis. The resetting of that fee was based on a complete analysis of the total cost including projected needs for infrastructure. The City provided an exemption for residential remodeling. The Finance Committee also questioned the possibility of changing the residential remodeling exemption. Council Member Burt, Chair of the Finance Committee in 2013, reported the Finance Committee recommended the topic be an action item in order to provide adequate transparency and additional opportunity for public participation and Council comment. Three main areas dominated the Finance Committee's discussion: 1) whether the transportation fee was adequate; 2) why the wastewater fee was higher than surrounding cities; and 3) should the City have a public safety or fire fee. The Finance Committee did not want to limit Council discussion to those three topics. Vice Mayor Kniss requested the Finance Committee's determination as to why the City did not have a public safety or fire fee. Council Member Burt stated the Finance Committee did not make a determination. Vice Mayor Kniss asked why the City did not have a public safety or fire fee. Council Member Burt noted the Finance Committee discussed that. Vice Mayor Kniss wanted to know what would be required for the City to develop a public safety or fire fee. The City was always searching for ways to augment revenue. Mr. Nathan Perez needed the Council's approval of the needs list in order to develop fees. DTA would then utilize demographic information and cost to arrive at estimated fees. To calculate a fee, the costs in any given category were divided by generally the number of dwelling units projected over the horizon of the fee update. Vice Mayor Kniss felt the Council first should determine whether or not the City needed such a fee. She understood Council Member Burt wanted Council feedback. She wanted to know what the Council needed to do to get a policy on the table and then to decide whether or not to implement a fee. Mr. Lalo Perez referenced Attachment A of DTA's report, Item B Public Safety facilities. The first item was the Public Safety Building (PSB). At the time that the listing was compiled, the Council had multiple options for funding a PSB. Once the Council made decisions regarding a funding source, the $57 million amount in the table could change to $0. A fully funded project could Page 10 of 31 City Council Meeting Minutes: 03/03/14 not be contained in the needs list. As the Council made decisions, Staff could calculate an amount for a potential fee. Council Member Scharff asked if DTA would recommend changes to fee amounts based on the Nexus Study. Mr. Nathan Perez explained that consultants typically did not recommend new fees that were less than existing fees. The Council retained the authority to charge less than the existing fee amount. Council Member Scharff noted the City's park fee was substantially less than park fees charged in other cities. He inquired whether the Nexus Study would suggest the maximum park fee the City could charge. Mr. Nathan Perez reported the Nexus Study would utilize the costs noted in Attachment A divided by demographic numbers to calculate a projected fee moving forward. Park fees were omitted from the list because he understood that park fees would not be increased based upon total costs. Mr. Lalo Perez explained that most of the projects identified for parks was funded through the CIP. The net cost for identified park projects was very low. Community Services and Public Works Departments were approximately one year away from completing a Master Plan for parks; therefore Staff did not have a full picture of parks needs. Council Member Scharff did not believe Staff was ready to move forward with the study. He asked why a purchase of land for parks was not included in the needs list. Mr. Nathan Perez surveyed every City department for a list of projects. The threshold for needs for parks would not result in a higher fee. Council Member Scharff felt there were many needs for parks over the next 30 years. He was not comfortable moving forward on that basis. Mr. Nathan Perez reported the parks list of projects was inclusive, but the ultimate cost of the facilities on that list would not be great enough to increase the fee. Council Member Scharff asked if the list contained all the facilities, including additional parks, that could possibly be needed. Staff presented information before completing the Master Plan for parks. Mr. Lalo Perez noted the Council in the future could consider any fees that were not adjusted at the current time and have the Master Plan as a source. Page 11 of 31 City Council Meeting Minutes: 03/03/14 If the Council delayed its decision, it could lose the opportunity of adjusting other fees at the current time. Council Member Scharff asked if the Council could carve out the parks fee and return to it in the future. Mr. Nathan Perez answered yes. Parks could be omitted at the current time and the fee would remain the same. DTA could either add new categories or increase other categories as applicable. Council Member Scharff reiterated that the parks fee would remain in place and the Council could review it at a later time. Mr. Keene indicated the Council typically reviewed DIF every two to four years. Staff could perform the review more often if the Council directed them to do so. Council Member Scharff asked why Cubberley was not included in the needs list. Mr. Lalo Perez reported the needs for Cubberley were not fully known. Council Member Scharff stated the amount for a PSB was not known, and asked how that discussion was different from Cubberley. Mr. Lalo Perez explained that the review of DIF had been delayed because of the number of pending decisions. At the current time, the Council was more likely to make a decision regarding the PSB than Cubberley. Cubberley needed a great deal of negotiation and discussion. To include Cubberley in the needs list, Staff needed a degree of certainty that a project would occur. Council Member Scharff inquired whether the needs list was a vision for the community through 2035 or simply a list of projects that needed a funding source. He did not see a consistent methodology. Mr. Keene commented that the goal was to set a fee that was applied in a given year to a new construction project. The Council could adjust fees each year. Nothing precluded the Council from marginally adjusting one area without reviewing all areas. Mr. Nathan Perez noted the recommendations considered the total cost per category. Given the lack of dollars in some categories, DTA determined that updates could be better discussed at a later time. Mr. Keene reported the needs list did not contain all definite unfunded capital needs or community facilities. The Council could set a policy Page 12 of 31 City Council Meeting Minutes: 03/03/14 direction to add those needs. At the same time, DIF were practically applied when a building permit was obtained. If the Council delayed adjustments on recommended categories to obtain information for all categories, then the City would lose revenue from increased fees for recommended categories. Moving forward on some categories was in the City's best interests even if the Council acknowledged it needed additional information for other categories. Council Member Scharff understood the City Manager suggested reviewing DIF more frequently. He asked if more projects should be contained in the needs list even though they could be removed from the list by November 2014 Mr. Lalo Perez acknowledged that Staff should have given the Council the full list of areas considered so the Council could appreciate the extensive review. The full list for parks and recreation facilities contained 33 items totaling a net cost of $57 million and included $6 million for athletic fields at the Golf Course, $11 million for a City gymnasium, Cubberley field restrooms, Cubberley roof replacement, Cubberley mechanical and electrical upgrades, and Cubberley tennis courts. Even after including those dollar figures, the analysis determined that an increased fee was not warranted. Council Member Scharff stated rates did not necessarily decrease. Mr. Nathan Perez responded correct. The Council retained authority to charge less. Council Member Scharff asked if the City was forced to lower the rate because cost amounts were insufficient to maintain the current fee amount. Mr. Nathan Perez replied no. Council Member Scharff inquired whether legally the Council was required to reduce an existing fee. Mr. Nathan Perez indicated the law did not specifically state that. City departments did an excellent job of reviewing projects. He did not encourage benchmarking or finding a certain number that would result in increased DIF. Staff developed a list of needs that did not meet the threshold to increase rates. It could happen in a few years, at which time the rates could be updated. Council Member Scharff inquired whether a decision was made on the three issued mentioned at the Finance Committee meeting. Page 13 of 31 City Council Meeting Minutes: 03/03/14 Mr. Nathan Perez remarked that if the Council chose to eliminate big -ticket items from the list, then they would be removed from the list prior to calculating fees. Council Member Scharff added that some big -ticket items needed to be added to the list prior to calculating fees. Council Member Burt mentioned a transportation fee, a wastewater fee, and a public safety fee. The question was whether they would be included in the study to determine a fee. Mr. Lalo Perez reported a transportation fee would be studied because the net cost of many of the projects was relatively stable. Several projects, especially the PSB, might be eliminated resulting in a low amount of costs and a smaller fee. The Council should proceed with consideration of a transportation fee until it made the final decisions on those projects. The general government facilities fee could proceed, because MSC funding sources were unclear. Council Member Scharff asked why the MSC with an approximate cost of $300 million was not included in the list. Mr. Lalo Perez Staff explained that the dollar amount was not reliable and was part of the CIP process. Council Member Holman noted that parking impact fees were not included on the list to be increased and had not been updated since 1989. The in -lieu parking fee for Downtown development was updated in 1995 and recommended for update. She asked why those were not included on the list. Mr. Nathan Perez agreed that those fees may need to be updated. Zonal fees were outside the scope of DTA's contract. Mr. Lalo Perez explained that Staff was reviewing fees in manageable groups and would continue the process with all fees. Council Member Holman stated the definition of home demolition needed to be changed, because of the exemption from impact fees and the lack of proper assessment for property taxes. She inquired about the number of projects that were more than 50 parcels in reference to page 87, Residential Subdivisions of Over 50 Parcels. Mr. Lalo Perez did not have an answer but would report back. Council Member Holman felt the number should be lower, certainly not 50 as she could not think of a single project over 50 parcels. She asked if a California Avenue in -lieu fee was outside the scope of the presentation. Page 14 of 31 City Council Meeting Minutes: 03/03/14 Mr. Lalo Perez answered yes. Council Member Holman concurred with Council Member Scharff's comments regarding parks. She inquired whether Staff presented the impact fee to the Parks and Recreation Commission for consideration. Mr. Lalo Perez replied no. That had not been a part of the process. Council Member Holman suggested Staff not be married to process. The chart was all based on residential information. Mr. Keene noted non-residential, commercial and industrial could be found in the middle of the chart. Council Member Holman had nothing to compare non-residential information to as the chart was not provided in the packet. It was important to know how Palo Alto tracked with other communities. Mr. Lalo Perez would include that information in future Staff Reports. Council Member Holman inquired whether Staff could provide that information when the item returned to the Council. Mr. Nathan Perez replied yes. Council Member Holman noted the Staff Report did not contain the chart referenced in the Finance Committee Minutes, which made it difficult to follow the discussion. The chart appeared to be misleading because it included the sewer hookup fee in the water, sewer, and storm drain fee. Mr. Nathan Perez could reflect it either way. It was an outlier in otherwise consistent data. Council Member Holman felt it should at least have a footnote. Mr. Lalo Perez indicated each agency within Santa Clara County set fees in different manners. Mr. Nathan Perez reported the comparison was difficult because Palo Alto suggested a larger water main diameter than other cities. Each city had different requirements that had to be considered in a comparison. Council Member Holman was unsure whether commercial and industrial was lower than residential. Mr. Nathan Perez would provide that data. Palo Alto was relatively lower compared to peer communities on the non-residential side. Page 15 of 31 City Council Meeting Minutes: 03/03/14 Council Member Klein inquired about the amount of money collected and the length of time required to collect sufficient funds to construct a PSB. Mr. Nathan Perez did not believe the City would collect sufficient funding over the timeframe of the study. Fees would assist with funding but would not solely fund a $57 million project. The cost of the project had to be allocated between existing and new development. Using 25 percent for new development, the fee would finance a maximum of $15 million. Council Member Klein inquired about the source of 25 percent. Mr. Nathan Perez explained that 25 percent was an approximation for discussion. It generally considered existing versus future demographics. Council Member Klein assumed that new construction, both commercial and residential, would result in 1-2 percent of existing stock. Mr. Nathan Perez concurred. Palo Alto was largely built out. The Nexus Study could result in a figure closer to 15-20 percent. Council Member Klein clarified that 15-20 percent was over the 20 -year period. Utilizing gross numbers, the most a fee devoted to the PSB would generate was 20 percent of the cost over 20 years. Mr. Nathan Perez agreed. Council Member Klein calculated the present value to be a quarter of that or 5 percent. That fee would generate only a few million of the needed $57 million. Mr. Nathan Perez concurred. Council Member Klein inquired about the amount of funds collected from DIF. Mr. Lalo Perez did not have a cumulative total, but the transportation fee collected $600,000 and the wastewater fee collected $1.3 million. Council Member Klein asked about the time period over which those collections spanned. Mr. Lalo Perez reported funds had to be utilized within a five-year period. Council Member Klein noted the report was delivered to Staff in May 2012, and asked why Staff delayed presenting it to the Council for 22 months. Page 16 of 31 City Council Meeting Minutes: 03/03/14 Mr. Lalo Perez indicated the lack of a Budget Director prevented the project from being a high priority for Staff. Council Member Klein believed the City had cost itself money because the project was not presented sooner. Mr. Lalo Perez agreed there could have been a loss of revenue on the transportation side. He did not know whether Staff would have had a good inventory of projects if the project was presented sooner. Council Member Klein inquired whether Staff could have hired a temporary person with sufficient skills to shepherd the project. Mr. Lalo Perez explained that such a person would need a certain amount of internal knowledge to navigate the multitude of departments and personnel to obtain data. Council Member Price recalled Mr. Nathan Perez's comments regarding cities not being forthcoming with information. She inquired whether the various city categories in the chart of comparative survey results was a true picture of all fees. Mr. Nathan Perez reported it was a true picture except for the City of Santa Clara. Council Member Price felt the information contained significant gaps, and asked if Mr. Nathan Perez was comfortable with the information. Mr. Nathan Perez replied yes. Council Member Price asked if the information was complete. Mr. Nathan Perez responded yes. Affordable housing was the one category that was charged incredibly differently across all cities. The affordable housing category was sometimes difficult to equalize on a per unit basis. Council Member Price concurred with other comments regarding adding Cubberley to the list. This was a phased approach to DIF, because the Council was attempting to determine a logical and proper methodology. She inquired whether Mr. Nathan Perez's experience included situations where DIF contained automatic Cost of Living Adjustment (COLA). Mr. Nathan Perez reported that was quite common. Mr. Lalo Perez added that COLA was utilized when fees were below 100 percent. The Council policy was not to set some fees at 100 percent. The Page 17 of 31 City Council Meeting Minutes: 03/03/14 Council was concerned about total impacts to projects. That was the reason Staff did not mention use of an inflator. Council Member Price asked if Staff considered cumulative impacts rather than built-in adjustments for each category. Mr. Lalo Perez indicated that was the Finance Committee's focus. Council Member Price suggested Staff include more clarification points in the chart. In facility costs or estimated facility costs, Staff should note the baseline year. She inquired whether Mr. Nathan Perez was aware of the Council's sensitivity to projected rates of growth promulgated by different agencies. Mr. Nathan Perez answered yes. Council Member Price asked if his assumptions were consistent with Council policies. Mr. Nathan Perez replied yes. Mayor Shepherd indicated the impact fees were for a new unit of housing. She viewed the project as an effort to capture brand new fire stations and police stations. There was a parks policy which Staff followed. MOTI ON: Mayor Shepherd moved, seconded by Vice Mayor Kniss to approve the Development Impact Fee (DIF) Project Needs List prior to having the City's consultant prepare the quantitative analyses and narratives needed to update some categories of the City's Development Impact Fees. Mayor Shepherd expected the discussion would evolve and recognized that the Council would need to make decisions regarding infrastructure. Vice Mayor Kniss agreed the discussion would continue. Staff asked the Council to approve a particular recommendation. Council Member Burt noted the Committee reviewed DIF in early November 2013. Since that time, the Council had moved forward with infrastructure projects. The Finance Committee was interested in vetting thoroughly a number of major areas. Because of changes over the last five months, returning the item to the Finance Committee for an update could be appropriate. SUBSTITUTE MOTI ON: Council Member Burt moved, seconded by Council Member Scharff to return this item to the Finance Committee to be re- evaluated. Page 18 of 31 City Council Meeting Minutes: 03/03/14 Council Member Burt reiterated that a number of projects had changed since the Finance Committee reviewed DIF. Returning the item to the Finance Committee would not require a great deal of Staff time. He wished to move the item forward rapidly and integrate the study with changes made in infrastructure planning. Council Member Scharff felt a more thorough vetting by the Finance Committee would be productive and would save time. Mr. Keene reported returning the item to the Finance Committee would require some direction to Staff. Staff and DTA could continue with the rational nexus component. Staff could work more quickly with clear direction from the Council about specific gaps in the capital facilities needs plan. Council Member Klein was aghast that the Finance Committee would require six months to vet the item. He requested Council Member Burt amend the Substitute Motion to indicate the Finance Committee would provide a recommendation to the Council, hopefully on the Consent Calendar, within 60 days. Council Member Burt felt 90 days would be reasonable. Council Member Klein wished the Finance Committee would complete its review prior to beginning Budget hearings. Perhaps the Finance Committee could provide a recommendation by May 15, 2014. Council Member Burt requested the City Manager comment. Council Member Klein suggested the Finance Committee would have more work than Staff would have in vetting the item. Council Member Burt noted Staff needed to reflect changes made by the Infrastructure Committee, input from the Finance Committee, and input from the Council discussion. Council Member Klein agreed to the item returning to the Council in three months, by the Council's first meeting in June. Council Member Burt concurred. The item might be imperfect at that time, but it would be more contemporary. Council Member Scharff preferred to wait for work to be complete than to have imperfect information. He questioned whether the item should return on the Consent Calendar. Page 19 of 31 City Council Meeting Minutes: 03/03/14 Council Member Klein indicated a return on the Consent Calendar was only a hope. He wanted to see an item returned to the Council by the first meeting in June 2014. Mr. Keene explained that if the Finance Committee identified other capital facility objectives, then that would require a rigorous analysis by Staff. Projects should not be driven by a desire to set a new fee. The same Staff would be working on this item and the Budget. Council Member Scharff would agree to the Finance Committee hearing the item in May 2014. The Finance Committee could decide it was not ready for the Council at that time. He did want the Finance Committee to hear the item prior to beginning the Budget. Council Member Klein expressed concern that the item had already been delayed two years as that cost the City money. Council Member Scharff felt acting too quickly could also cost the City money. Council Member Klein believed if the Finance Committee did not finish the item prior to beginning Budget hearings, then it would have a good excuse not to work on it. INCORPORATED INTO THE SUBSTITUTE MOTI ON WITH THE CONSENT OF THE MAKER AND SECONDER to direct Staff to bring this back to the Council on Consent Calendar, contingent on a unanimous vote by the Finance Committee, and to return to the Council by the first meeting in June 2014 with whatever portion is ready. Council Member Holman requested Staff answer questions such as the meaning of residential subdivision of over 50 parcels. She inquired about the basis for Mr. Nathan Perez stating commercial impact fees appeared to be low compared to other communities. She suggested the Finance Committee complete as much work as soon as possible and then determine whether a second phase of work was needed. Mayor Shepherd indicated the Finance Committee would have to make that determination. Council Member Burt agreed with the Finance Committee having the discretion to bring some or all of the item to the Council at the same time. The item would return on the Consent Calendar only if there was unanimous approval by the Finance Committee. Page 20 of 31 City Council Meeting Minutes: 03/03/14 Council Member Schmid agreed with many of Council Member Scharff's comments. The Council was assessing DIF by utilizing the current CIP. Using the CIP allowed the Council to determine the real expenditure for the range of infrastructure needs at a point in time. The Council should not chase itself by going back to the Finance Committee and removing some items. The goal was to get a picture at one point time and use that as a framework. Council Member Price inquired whether Staff had sufficient information and guidance to make some progress on this item, to make changes. Mr. Keene reported if the work at the Finance Committee was anything like the current discussion, Staff would not return for a long time. The Amendment to the Substitute Motion was important. Staff did not provide a meaningful response about the amount of work needed for this item. Staff work needed to be contained if the Council wanted action at the current time or in three months. The Council would have to settle for something less than all the topics mentioned during the Council discussion. To do the work correctly, Staff would need additional involvement from the Planning Department, which was involved in many other Council projects. Council Member Berman indicated Council Member Schmid's comments were profound in that the Council could be chasing itself in trying to find the perfect list of projects. He inquired whether the Finance Committee would remove projects that were on the infrastructure list and maybe add projects that had not been identified. Mr. Lalo Perez stated that was his understanding. Staff would focus on the three areas in their recommendation, rather than everything else. Council Member Berman asked if the PSB would be removed from the list if the Council decided to fully fund it regardless of the item returning to the Finance Committee. Mr. Lalo Perez answered yes. Council Member Berman asked when the analysis would be completed if the item was not returned to the Finance Committee. Mr. Nathan Perez reported the goal would be to provide estimated fees for the categories discussed to Staff within a month, and then to review those fees with the Finance Committee or the Council. He wished to provide fee levels as soon as possible. Council Member Berman inquired whether projects contingent upon a community vote would remain on the list. Page 21 of 31 City Council Meeting Minutes: 03/03/14 Mr. Nathan Perez responded yes. Council Member Berman would support the Motion, because the information was sufficient. Mr. Nathan Perez added that if the PSB were removed in two months, he would have to redo everything because the PSB was such a large project. Council Member Klein would not support the Substitute Motion because of the language regarding the Finance Committee providing whatever portion was ready. Mayor Shepherd would not support the Substitute Motion. Council Member Schmid articulated the situation well. The changes the Council made with regard to infrastructure would be reflected in the list without returning the item to the Finance Committee for review. SUBSTI TUTE MOTI ON AS AMENDED FAI LED: 3-6 Burt, Holman, Scharff yes MOTI ON PASSED: 8-1 Holman no Council Member Holman inquired when Staff could provide requested information regarding fees. Mayor Shepherd indicated Staff could provide the information outside the Council meeting due to the lack of time. She inquired whether the Council would have sufficient time to address Agenda Item Number 10, naming the Main Library. Mr. Keene announced naming of the Main Library would be continued to a date uncertain. MOTI ON: Council Member Scharff moved, seconded by Vice Mayor Kniss to discuss Agenda Item No. 11 prior to Agenda Item Number 9. MOTI ON PASSED: 7-2 Schmid, Shepherd no Mr. Keene requested a time check -in at 10:00 P.M. to determine whether Staff could be excused from the meeting. 11. Infrastructure Project and Funding Plan. Richard Hackmann, Management Analyst, recalled that the Infrastructure Committee met three times since the item was last before the Council on December 9, 2013. The Infrastructure Committee recommended the Council Page 22 of 31 City Council Meeting Minutes: 03/03/14 1J �DAVID TP�USSIG 81 ASSOCIATES Public Finance and Urban Economics 2250 Hyde Street, 5th Floor, San Francisco, CA 94109 Phone: 800.969.4382 ATTACHMENT E CITY OF PALO ALTO DEVELOPMENT IMPACT FEE PROGRAM PUBLIC FACILITIES NEEDS LIST THROUGH 2035 {1} Facility Name Total Cost for Facility {2} {3} Off setting Net Cost to City Revenues A. PUBLIC SAFETY FACILITIES 1. Police Facilities 1 Public Safety Building ("PSB") - Replace (44,850 square feet) $57,000,000 $0 $57,000,000 Subtotal $57,000,000 $0 $57,000,000 2. Fire Facilities 2 Fire Station 3 (Rinconada Park - built 1948) - Replace $6,700,000 $0 $6,700,000 3 Fire Station 4 (Meadow/Middlefield - built 1953) - Replace $7,500,000 $0 $7,500,000 5 BC Van (x 2) $200,000 $0 $200,000 6 Fire Trucks (x 2) $2,000,000 $0 $2,000,000 7 Type I I I Engine (x 2) $800,000 $0 $800,000 8 Training Tower & Related Land Acquisition $8,000,000 $0 $8,000,000 9 Type I Engine (x 8) - 2024 $4,200,000 $0 $4,200,000 10 Ambulances (x 4) - 2022-2025 $1,300,000 $0 $1,300,000 11 Vehicles (Van, Trucks, Engines, Ambulances) $8,500,000 $0 $8,500,000 Subtotal $39,200,000 $0 $39,200,000 12 Pubic Safety Revenues not yet Committed $0 $0 TOTAL PUBLIC SAFETY FACILITIES $96,200,000 $0 $96,200,000 B. GENERAL GOVERNMENT FACILITIES (COMMUNITY CENTER, INFORMATION TECHONOLOGY, PUBLIC ART, ETC.) 1 Information Technology Upgrades $750,000 ($75,000) $675,000 2 Buildings Systems Improvements $6,300,000 ($100,000) $6,200,000 3 Civic Center Plaza Deck $16,000,000 $0 $16,000,000 4 Municipal Services Center Improvements (through 2020) $ 1,991,000 $0 $1,991,000 5 Municipal Services Center - Replace (after 2020) $93,000,000 ($32,550,000) $60,450,000 6 Ventura Buildings Improvements $690,000 $0 $690,000 7 General Government Revenues not yet Committed $0 $0 TOTAL GENERAL GOVERNMENT FACILITIES $ 118,731,000 $ (32,725,000) $ 86,006,000 GRAND TOTAL $214,931,000 -$32,725,000 $182,206,000 1 Attachment F DAVID TAUSSIC: A ra & ASSOCIATES Mather Fees ■Afra ble H eeousing F $30,000 re ■ Community 3adhties Fee ■ Oita' Fecitties Fee ▪ Fire Feolities Fee $20,000 ■ 4Mater/Sewerr5torm am , Fee Trarticrrran.ortetion IIn ct Fee ■ Pare Fee $10,000 (1) Development Impact Fees by Type, Single -Family Dwelling (per dwelling unit) 34.1, ®other Fees ■AFForade Housing Fee ■Community Facilities Fee Palo Alta Cupertino (Fremont $2,171 San Mateo Santa Clara Surnmale $1,847 Redwood City Mountain 'View Menlo Park $4,150'. $5,500 - $15,800 $15,000 $3,641 •iCapital Facilt'res Fes 53,338 Fine Foe ll es. Fee $316 $1,000 ■Water/Sewerr5torm Orlin Fee $18,.900 $470 $2,400 $4476 $4,997 $5,030 $4.883 $8580 $4,772 Tral%ic/iransportation Impact Fes $2,587 53,875 $53,422 52.049 51 $5,3117 5708 ■park FIX $10;410 $15,750 $11,578 $21,832 $17,250 $11,117 $21,224 7 DAVID TAUSSIC .4 & ASSOCIATES $50000 $45,000 $40,000 $35,000 $ 30,000 Mather Fees $25,000 • Afloreble Housing Fee $20,000 W {ammunityaalitiea Fee NCa1imi Fecltties Fee $15,000 MI Fire Feiled. Fes • Water/Snw r/stnrrn ewer Fee $111, TreRic/Trsns5o,tation Im.. mrt Fee ▪ Pm* Fee $5,000 $27,5540 7343 .$.93,119 3. Palo Aft.o ■Of4rer Fels Cupertino d $4,125 Fremont $1,611 Son Mateo - Sarma Clara Sunmwnk $1,348 Redwood City Mountain View Menlo Park $3,230 ■Affora6k- Horsing Fee $10,500 $10;500 ■Commurnity Faeiities Fee $2,339 •Capital Faritties Fee $2,446 ■ Fie Facilities fee $283 $1,004 ■Water/Sewer/Storm Drain Fee $15,504 $784 $2,400 $2,413 $5,567 $5,030 $4,171 $7,020 $$2,856 Ta-af8cffranspnrtaiion Impart Fee $2,987 $3,409 $2,101 $1,258 $1,021 $4,974 $708 ■Park Fee $6,814 $15,750 $8,488 $15,057 $16,100. 50,174 5531,114 (2) Development Impact Fees by Type, Multi -Family Dwelling (per dwelling unit) Attachment F aowia T,uS�SIC, & ASSOCIATES $25,00 $2000 $15.00 Mather Fees • Atdorable Hauling Fee $10:00 • Com musky FacIF.ies Fee • c i:aO Faciltes Fee • Fire Fedtit, Fee • W ater'5 werfStorm Dreil Fee $5.00 Trerker/renftertetion Impact Fee ▪ Part Fee (3) Development Impact Fees by Type, Office (per square foot) $17.32 $5.78 $22.29 $15.46 $14,40 1 $7.25 SG 2Q 54.36 }U.eN Palo Alto Cupertino Fremont San Mateo Santa Clara Redwood City Mountain Menlo Park ■Other Fees 51.74 ■Affarahle Mousing Fee $5.23 $7.12 $1450 ■Conenunity Fan5ties Fee $0.49 ■Capital Pao -Sties fee $1_48 • Fire Facilities fee $1123 $0.30 •WaterlSewer/Storm Drain Fee $795 $055 $192 $3.86 $336 $117 $3.51 $5.23 $3.65 Traffic/Transportation Impact Fee $4.45 $10.77 $3.14 $1.00 $3.12 $3.45 $3.11 $160 ■ Park Fee. DA& I6 TAUS$Ii. A55C7CIATES ▪ Carer Fees • ARe le Housing Fee ▪ CommwtityFadIr0s Fee. • capital Facilities Fee • Fire Facilities Fee • Water/SewerfStcrm Drain Fee $40.00 $35.00 $30.00 $25.00 $20.00 $15.00 $10.00 Trenienransperrostion Impact sec • Part. Fee $35.29 (4) Development Impact Fees by Type, Retail/Industrial (per square foot) $13.97 $15.65 $11.69 $4.75 $L35 U ■ $10.71 $8.79 yu:uu Palo Alto Cupertino Fremont San Mateo Santa Clara Sunnyvale Sunny Redwood od City Mountain View Menlo Park ■Other Fees. $174 ■ANorahle Flouting Fee $1737 $5.23 $9.Q8 $1.37 $7137 ■Cemtmunity Facilitis Fee $0.49 Capital Facilities Fee $0,92 ■Fire Facilities Fee $1115 $@9Q •WaterJSe`ver/.Storm Drain Fee $736 $0.55 $1.92 $3.86 $135 $3.17 $3.81 $533 $3.65 Tralfc/Transpartation tappet Fee $4.45 $5.70 $5.69 $1.00 $6.72 $4.97 $311 $160 ■Park Fee $4.42 Attachment F \ i CITY OF PALO ALTO Finance Committee Minutes Special Meeting Tuesday, May 6, 2014 Chair Berman called the meeting to order at 8:17 P.M. in the Council Chambers, 250 Hamilton Avenue, Palo Alto, California. Present: Berman (Chair), Burt, Holman, Kniss Absent: ORAL COMMUNICATIONS None. AGENDA ITEMS 1. Proposed Changes in Development Impact Fees: Implementation of New Public Safety Facility and General Government Facilities Fees. Lalo Perez, Chief Financial Officer, reported Staff began the process of reviewing Development Impact Fees (DIF) with a benchmark study conducted by David Taussig & Associates (DTA). The process called for development of a project needs list. From the net project cost of needs, only 15 percent could be attributed to new development. The vast majority of funds were allocated to current residents. Staff suggested the Finance Committee (Committee) focus on two new fees. In November 2013, the Committee recommended the project needs list be forwarded to the Council. The Council accepted the list of projects for the two new DIFs. In April 2014, DTA completed a nexus study and developed two new fees, one for a Public Safety Facility and one for General Government Facilities. Staff recommended the Committee review the fees and make a recommendation to the Council. DTA did not recommend changes to existing DIFs. Nathan Perez, David Taussig & Associates, developed DIF amounts that satisfied legal and technical requirements of Government Code Section 66000, also known as the Fee Mitigation Act and Assembly Bill 1600 (AB 1600). The goal of AB 1600 was to demand that new development only pay its fair share. Existing deficiencies could not be charged to new development. The fee calculation employed the concept of an Equivalent Dwelling Unit (EDU) to equalize or normalize impacts of residential versus non-residential development. The Planning Department provided 1 Minutes demographics, and he confirmed them generally against Association of Bay Area Governments (ABAG) and U.S. Census data. The nexus for the proposed DIFs was that new development demanded public safety and general government facilities. Mr. L. Perez recommended the Committee adopt the two DIFs at 75 percent, consistent with current DIFs. He corrected a statement on Packet Page 7 in that the revenue for a Public Safety Building would be derived from the Transient Occupancy Tax (TOT) increase on new hotels only. MOTI ON: Vice Mayor Kniss moved, seconded by Chair Berman that the Finance Committee recommend the City Council review the Development Impact Fee (DIF) Justification Study prepared by David Taussig & Associates and approve the recommended new Public Safety Facility and General Government Facility impact fees at 75 percent of the maximum allowable level. Vice Mayor Kniss understood existing homes would not be affected by new DIFs. Council Member Holman recalled inquiring about commercial impact fee rates and learning that commercial rates were low. That was not reflected in the Staff Report. The chart for Total Fees as an Average of Average Home Price included office, retail, and industrial fees. Those numbers and percentages were low. She asked how Staff accounted for those differences. The descriptions for charts on Packet Pages 6 and 34 were different. The presentation stated different classifications of non-residential use had different demand. Daytime demand for emergency services was much greater than nighttime demand, which indicated that non-residential demand was greater than residential demand. Fees for non-residential appeared to be low. Mr. N. Perez believed the grouping was a product of charging the affordable housing fee to commercial only and then industrial, research, and development. Folks were not typically interested in industrial fees. Council Member Holman inquired whether office was not charged an affordable housing fee. Mr. N. Perez responded yes, the affordable housing fee was not charged to office. It was grouped in that manner because the $17.90 charge was not levied on office. The current proposed fee structure was approximately 60 residential/40 non-residential. That could be modified, but it was within the range of acceptable. Tilting it toward non-residential posed problems, because some residents were employees and they were the same people 2 May 6, 2014 Minutes demanding daytime services. Bi-furcating it would be very difficult. DTA typically employed a service factor of 50 percent to account for that. Chair Berman asked if Council Member Holman was questioning whether the City's office, retail and industrial fee was lower than other communities' fees. Council Member Holman clarified that she was asking whether the City was low compared to demand being created and low compared to other communities. Mr. N. Perez viewed fees by category and then rolled them into a non- residential fee. Non-residential fees as a whole could be low compared to peer cities. Council Member Holman stated the Committee was considering implementing two fees, one of which is for public safety. There was a direct relationship. James Keene, City Manager, asked if Council Member Holman wanted to know whether the City's non-resident fees for public facilities and public safety were low in comparison to other cities. Mr. N. Perez did not believe non-residential public safety and general government fees were low. Chair Berman interpreted the table differently. The City was lower than other communities on residential and higher than other communities on office and commercial. For example, the City's retail/industrial was twice the average of the other eight cities. Council Member Burt referred to the table heading "total fees as percent of average home price," and asked why office fees or retail/industrial fees would be correlated to home price. Mr. Keene indicated the heading was wrong. Nancy Nagel, Senior Management Analyst, explained that DTA presented the residential fees as a percentage of home price. She extrapolated from that and also looked at non-residential as a way of comparing communities. Non-residential properties could pay more in Palo Alto possibly for the same reasons that home prices were elevated in Palo Alto. Council Member Burt did not understand the impact of average home price in eight other cities on office and retail/industrial, and inquired about the comparison. 3 May 6, 2014 Minutes Ms. Nagel advised it was the average home price of all eight cities. Mr. Keene clarified that Council Member Burt was inquiring about the office component. Ms. Nagel utilized per 1,000 square feet for the percentages. Mr. Keene reported the fees were 1.2 percent of the cost per 1,000 square feet. Ms. Nagel stated that the fees per 1,000 square feet of office were 1.2 percent of the average home price in the other cities. Council Burt did not see the relevance of that information. Mr. N. Perez understood the information indicated office space would cost more generally. Mr. Keene interpreted the data to mean Palo Alto's fees were significantly higher than the average fees per square foot in the eight other cities. Vice Mayor Kniss asked Council Member Holman if she felt fees were too low and should be altered. Council Member Holman believed fees were too low. The presentation discussed residential and non-residential development in a couple of places. The fourth paragraph on page 4 of the Staff Report stated in part, Staff's list of unfunded projected needs, given ABAG and Staff's projected population growth rates ...." Population growth rates spoke to residential. She questioned the impacts from office increases. She did not understand whether the City was charging the correct rates for non-residential. Mr. N. Perez considered the differential between existing and new. The most important point was like comparisons. Palo Alto had great jobs data, so DTA reviewed the existing number of jobs versus the bump to 2035. Council Member Burt stated the City had relatively poor data. The Council held significant community and Staff discussions regarding the uncertainty of jobs data from various sources. If Mr. N. Perez had good jobs data, the Council wanted to hear it. Mr. N. Perez indicated Staff provided him with jobs data. He meant the data was good relative to data provided by other communities. 4 May 6, 2014 Minutes Council Member Burt reported that the City did not have a business registry or a business license tax. Mr. Keene reiterated that Mr. N. Perez received data from Staff that was good relative to the data other jurisdictions gave him. That did not mean that within Palo Alto the data was viewed as good. In commercial just as in residential, the number of people determined service levels. The Committee was interested in more accurate data regarding the business/commercial side of the employee base. Once the City instituted a business registry and obtained more specific employee counts, Staff and the Council would automatically consider changing DIF methodologies. Council Member Burt explained that Palo Alto was one of a small number of cities that had neither a business registry nor a business license tax. Those were fundamental vehicles by which other cities gathered data. He did not understand how the City had better data when it lacked the most valuable tool in gathering data. He needed Staff to reconcile Mr. N. Perez's understanding that he received solid data on jobs and the Council's understanding that Staff did not have that data. Mr. N. Perez was utilizing the differential or margin of difference. To the degree there was a flaw in existing data and it was carried through to future projections, the flaw would be equalized. Council Member Burt felt the 60/40 ratio may not apply either, because the City's jobs to resident ratio was quite different from almost every other city as well. It was not just the differential moving forward; it was the baseline as well. Mr. Keene clarified that the consultant made a qualitative statement about the data. He would prefer to discuss methodologies. Council Member Burt could agree to continuing the discussion if the Committee began with that premise. If the premise was that the City had good data, he could not agree to continue. Mr. Keene believed the consultant drew conclusions based on factors other than Staff indicating the data was good. He inquired whether a lack of good data would change Mr. N. Perez's recommendations. Mr. N. Perez responded no. Council Member Holman was trying to understand the information and the basis for the recommendation. She inquired about the City's daytime population. 5 May 6, 2014 Minutes Mr. Keene asked if she wanted the non-resident population as well. Council Member Holman requested daytime population compared to nighttime population. Mr. Keene reported daytime population included workers who did not live in Palo Alto, and asked if that was the figure she wanted. Council Member Holman replied yes. She wanted to know why residential paid 60 percent and non-residential 40 percent of fees when the City had 99,000 office workers and 65,000 residents. Mr. Keene did not know the exact number for daytime population. Mr. Steve Levy reported the City had the highest jobs to resident ratio in the state at more than 3:1. It would be fair to say that a 60/40 split would not be a normal distribution for Palo Alto. Council Member Holman reiterated that 60/40 was the recommendation. Those were her concerns about the foundation of the recommendations. Council Member Burt had heard 99,000 and 120,000 for daytime population. He inquired whether the normal split of fees would be 60 percent residential and 40 percent commercial. Mr. N. Perez indicated the fees as calculated were 60/40. Council Member Burt asked if that was a typical approximation for other cities. Mr. N. Perez advised other cities would have a higher residential burden, perhaps 75/25 or 70/30. Council Member Burt remarked that the City had a baseline of residents who remained in the community during the day. The higher service level served both the baseline of residents during the day and workers. He inquired about assumptions or base figures utilized for number of workers in calculating the 60/40 baseline. Mr. N. Perez utilized 65,000 to 75,000 existing residents and approximately 90,000 existing jobs. For 2035, he assumed an additional 10,000 residents and an additional 20,000 jobs. Council Member Burt asked if a jobs figure of 120,000 would change calculations. 6 May 6, 2014 Minutes Mr. N. Perez reported it would not change the existing versus new, assuming projections for the future would be based on the same data. The number of jobs would change the burden between residential and non-residential. There were two elements to the calculations, and the Committee was discussing the second one. Council Member Burt inquired whether the baseline would change. Mr. N. Perez replied yes. Council Member Burt asked if the proportionate increase was the second consideration. Mr. N. Perez answered yes. The percentage as the existing incremental differential would not change it. If the gradient remained roughly the same, then it would not really change the burden. Council Member Burt inquired whether a significantly higher number of existing daytime workers than used in calculating other fees would change the calculations for the amount the City charged commercial currently. Mr. N. Perez would need to know the employee count for the target year and the percentage increase. The important component was the differential. Council Member Burt understood the issues to be whether the City had been charging the correct fees and what fees should be charged in the future. The City had a critical need for data. Mr. N. Perez had never seen a 50/50 split. A 50/50 split would create backlash from developers. Council Member Burt asked if Mr. N. Perez had worked with other communities that had twice as many workers as residents. Mr. N. Perez answered of course not. Council Member Burt felt Palo Alto was an anomaly in terms of the job to resident ratio. Because Palo Alto was different from other cities, he struggled with comparing Palo Alto to other communities. Mr. N. Perez advised that counting an employee as 50 percent of a resident was an industry standard. He could examine changing that; however he would have reservations. If there was a different service factor, he could 7 May 6, 2014 Minutes investigate and rerun the numbers. There was a defensibility to being a unique community; however, he had never seen a fee study like that. Council Member Burt asked if Mr. N. Perez stated the rule of thumb was one worker equaled 50 percent of a resident. Mr. N. Perez responded yes. Council Member Burt stated that a 60/40 split would not be correct for 65,000 residents and 120,000 workers. Mr. N. Perez concurred. Analyzing the workers was very difficult. Mr. L. Perez understood the Committee's concerns. The Committee could make decisions based on the current data and direct Staff to return in two years when new demographics and data sets were available. Mr. Keene supported that as the City could update and enhance fees at a later time. If the Committee recommended fees outside the norm, then Staff would need to perform sophisticated modeling to defend moving outside the norm. He recommended the Committee adopt improvements now and direct Staff to return later with updates as better information became available. Mr. N. Perez advised Staff was conscientious about the data they gave him. He did not see that very often. Council Member Holman noted jobs numbers had been published on the City's web site and other places. Defensibility was an important criteria. Fair share was an exceedingly important criteria. Residents recognized that they subsidized non-residential development in the community. Everybody should be responsible for their fair share; as best the City could calculate fair share. AMENDMENT: Council Member Holman moved, seconded by Council Member XX to split the residential and non-residential impact fees to 50/50 from 60/40. Vice Mayor Kniss felt 50/50 might be more fair, but she did not believe the City could defend it. The Committee's responsibility was to deliver the data to the Council along with a recommendation that in the future non- residential should bear more of the burden. AMENDMENT FAI LED DUE TO LACK OF SECOND 8 May 6, 2014 Minutes Council Member Holman would vote against the Motion. Other Council Members would share her questions. She did not see the recommendation as fair share. A great deal of information was available regarding the unique jobs/housing imbalance. Council Member Burt did not support the Amendment because the Committee did not have sufficient data to make a determination. A 50/50 split would be based upon an assumption of slightly more than 120,000 workers. The Committee did not have that data. That would not be a new industry standard; that would be a new assumption on the data. He inquired about a timeline for updates regarding data. Mr. Keene reported that a business registry would be the most direct path to obtaining good data. He did not recall the timeframe for instituting a business registry. A year would be a realistic timeframe to collect sufficient data to conduct a good comparison. Staff would need an additional six months to determine how to apply data, how to factor it, and other variables. Not having a clear methodology or not being able to draw a clear nexus placed the City in an awkward position. Council Member Burt did not hear a response regarding the 90,000 worker assumption. That was outside the range of figures he had heard over an extensive period of time. Mr. Keene would verify that information. Council Member Burt suggested using the mean or a conservative number. Mr. N. Perez did not indicate that was outside the range of his understanding. Mr. Keene advised that Staff was working to align all variable data points generated over time. That could be done in the near term and would go beyond the impact fee discussion. Mr. N. Perez reported the 50/50 target was the reason AB 1600 was enacted. He could not target a specific number. He could work with Staff about the service factor and run additional numbers. He would not provide something that was 50/50. MOTI ON PASSED: 3-1 Holman no 9 May 6, 2014 City of Palo Alto Development Impact Fees As per FY 2015 Adopted Municipal Fee Schedule pages 23-1 and 23-2 Fee Category Type of Project Parks Community Centers Libraries Housing Total Fees (NIC Transp.) Transportation Residential - New Homes Only* Single family < 3,000 sq. feet Single family >3,000 sq. feet Multi -family <1= 900 sq. feet Multi -family >900 sq. feet $11,180/residence $16,695/residence $3,700/unit $7,318/unit $2,898/residence $4,339/residence $963/unit $1,907/unit $1,012/residence $1,507/residence $332/unit $604/unit EXEMPT EXEMPT EXEMPT EXEMPT $15,090/res. $22,541/res. $4,995/unit $9,829/unit $3,354 per net new PM peak hr trip $3,354 per net new PM peak hr trip $3,354 per net new PM peak hr trip $3,354 per net new PM peak hr trip Non-residential Commercial/Industrial Hotel/Motel $4,748 per 1,000 sq ft or fraction thereof $2,147 per 1,000 sq ft or fraction thereof $268 per 1,000 sq ft or fraction thereof $121 per 1,000 sq ft or fraction thereof $255 per 1,000 sq ft or fraction thereof $107 per 1,000 sq ft or fraction thereof $19.31 per sq ft $19.31 per sq ft $23.89 per net new sq ft $21.15 per net new sq ft $3,354 per net new PM peak hr trip $3,354 per net new PM peak hr trip Residential Subdivisions Single-family Multi -family Parkland Dedication Fee** 531 sq ft of parkland/unit or $56,736/unit in -lieu fee 366 sq ft of parkland/unit or $39,106/unit in -lieu fee Certain Residential Projects and New Commercial Projects*** Public Art Fee*** 1% of first $100 mill. const. valuation; 0.9% of valuation above $1 mill. Special Zones Stanford Research Park/EI Camino Real CS Zone San Antonio/West Bayshore Area Charleston/Arastradero Commercial Charleston/Arastradero Residential Parking in -lieu fee for Downtown Assessment District Traffic Impact Fee $11.64 per net new sq ft $2.40 per sq ft $0.36 per sq ft $1,225 per unit $63,848 per parking space Notes: "Single-family" is defined as a single dwelling unit that does not share a common wall with another dwelling unit *Square footage refers to living area, not lot size. **In -Lieu Parkland Dedication Fee is an option only for projects of < 50 parcels. (Larger projects must dedicate land.) ***Public Art Fee applies to residential projects of 5 units or more and new commercial projects with a floor area of at least 10,000 sq ft and a construction value of at least $200,000. Attachment B Excerpt City Council Minutes Special Meeting November 3, 2014 12. Finance Committee Recommends Proposed Changes in Development Impact Fees: Direction to Draft Ordinance Implementing New Public Safety Facility and General Government Facilities Impact Fees. Lalo Perez, Administrative Services Director, recalled in March 2014 Staff presented a list of projects that justified implementation of a Public Safety Facility fee and a General Government Facilities fee. Staff presented a nexus study to the Finance Committee in May 2014 and recommended setting fees at 75 percent of the maximum level. At -places was a memorandum regarding the setting of fees. Because the Finance Committee voted 3 to 1 in support of the recommendation, the item was placed on the Agenda as an Action Item. The Finance Committee expressed concerns regarding the residential fee being unfairly high. Although fees were split approximately 60/40 between residential and non-residential uses, the fee based on per person served was closer to a 50/50 split. Table 19 summarized projected income from new fees, which also demonstrated a more equal distribution of fees between residential and non-residential uses. One challenge was the lack of data regarding number of employees; however, Staff hoped the Business Registry would provide better data. The Finance Committee was also concerned about the category breakdown. Existing fees included a category that was different from the categories proposed for the new fees. Categories for existing fees were implemented more than ten years ago. Since that time, categories were standardized and Staff proposed use of the standardized categories. Categories for existing fees could not be changed to standardized categories unless the fee itself was changed. Should the Council approve the new fees, Staff would return with an Ordinance authorizing the new fees and a Resolution setting the fees. Fees would be effective 60 days after adoption of the Ordinance and would apply to new developments that had not received building permits prior to the expiration of the 60 -day period. Council Member Berman reported the Finance Committee's discussion primarily concerned the number of jobs in Palo Alto and the ratio of fees charged to residential and non-residential uses. He inquired whether Staff 11/03/2014 116-029 MINUTES received new information to determine the ratio was 49 percent for residential uses and 51 percent for non-residential uses. Mr. Perez clarified that Staff's presentation to the Finance Committee did not sufficiently explain the ratio. Council Member Berman noted the Finance Committee voted 3 to 1 in favor of the Staff recommendation. Mayor Shepherd requested additional comment concerning the Finance Committee's discussion of a 60/40 fee split. Council Member Berman recommended Members of the Finance Committee share the concerns they raised at the meeting. He requested Staff explain changes that resulted in the 60/40 split shifting to a 49/51 split. Mr. Perez explained that the proposed residential fees and non-residential fees as stated in Table 20 resulted in the 60/40 split discussed at the Finance Committee meeting. Calculating the fee per person served resulted in the 49/51 split. The Finance Committee wanted a 50/50 split; however, the consultant expressed concerns about that. Council Member Berman added that the City could not choose a ratio and make the fee fit that ratio. Mr. Perez indicated Staff did not have good data regarding the number of employees. The Finance Committee discussed delaying the new fees until good data was available. Council Member Berman remarked that the per person served calculation provided a different analysis of the ratio. Mr. Perez advised that the projected revenue from the two new fees would be split approximately 50/50 between residential and non-residential uses. Council Member Berman suggested the fees could be adjusted once reliable data was obtained through the Business Registry. Mr. Perez indicated an adjustment of the fees would require a new nexus study utilizing new data. The Finance Committee discussed the multiple sources of job and employee numbers. James Keene, City Manager, reported the City had an established body of work and tried and true methodologies. The recommendation was to impose the fees and to begin collecting revenue. He wanted to obtain the highest 11/03/2014 116- 30 MINUTES accuracy possible; however, that would be achieved in the future. Staff was committed to a possible adjustment of the fees. Council Member Klein inquired about the time period for collecting the $35.64 million dollars stated in Table 19. Mr. Perez responded through 2035. Council Member Klein stated Table 19 indicated collections of $22.5 million, approximately half the estimated cost of a new Public Safety Building. He asked about the accounting procedure for collecting fees after construction of the building. Mr. Perez advised that the Council could adjust the fee downward so that net expenses matched fees collected or allow the fee to continue at the same level. Council Member Klein offered a hypothetical scenario of constructing a Public Safety Building in the next 12-18 months through other funding sources. He asked what would happen with the fee for the following 20 years. Mr. Perez explained that identified revenue must be reduced from the amount of the expense. The Council would have to reset the fee to the net amount that was unfunded. Mr. Keene inquired whether future fees could repay an expense paid from other sources. Nathan Perez, Vice President of David Taussig and Associates, clarified that fees could repay debt service or fund other public safety capital facilities with a useful life of more than five years. Council Member Klein requested Mr. Perez assume there were no other facilities. Mr. N. Perez reported that the Government Code required the City to credit fees if there were no other capital needs on which to spend the fee in five years. Council Member Klein asked if the City could borrow against the fee. Mr. N. Perez replied yes. Mr. Perez clarified that the challenge in borrowing against the fee was predictability of the fee revenue for a credit rating. 11/03/2014 116- 31 MINUTES Council Member Klein believed the City would have to identify other public safety capital needs in order to utilize the fee. The fee would not have an impact on the Public Safety Building if it was constructed in the next year or two. Mr. Perez commented that only 15 percent of the cost could be allocated to a development impact fee. Variables of cost and time would require Staff to revisit the whole process. Council Member Klein calculated the fee could contribute $7.5 million towards the $50 million cost of a Public Safety Building. Nancy Nagel, Senior Management Analyst agreed that $7.5 million would be the maximum amount projected from collection of the fee over 20 years. Mr. N. Perez suggested the amount would be $8 million, because collection was a product of the pace of development in Palo Alto. If the Public Safety Building was constructed at a lower cost than estimated, then the nexus study would be incorrect. He vetted the cost of the needs list with Staff who typically provided conservative cost amounts. Council Member Schmid was interested in equivalent dwelling units. Table 19 indicated the amount was split roughly 50/50, because non-residential uses were growing twice as fast as residential uses. Therefore, non- residential uses were in essence paying half the amount of residential. The Fire Study and Police Blotter seemed to imply that public safety was spending roughly half their time on the daytime population. He questioned the need for residents to pay twice as much as visitors when visitors consumed more City services. Mr. Keene clarified that the City was collecting a fee for capital facilities rather than operating costs. The volume of calls for service did not directly correlate with the need to invest in facilities. The Council could not utilize service calls to determine who benefited from City services. Mr. N. Perez added that there was a tension between relative fee levels and absolute fee amounts. If the amount collected from fees was approximately 50/50, then the tension became more balanced. Council Member Schmid was concerned that the resident equivalent paid twice as much as a business equivalent. Ms. Nagel explained that the non-residential fee was calculated per 1,000 square feet. Residential fees were calculated per unit or home or multiple 11/03/2014 116- 32 MINUTES family unit. Those two calculations were not the same, because 1,000 square feet assumed a certain number of employees. A single family home was assumed to house 2.7 people. A single family home would pay $4,500 for both fees at the maximum level. A commercial space would pay only $2,500, but paid for only 1.5 people. Council Member Schmid noted 1,000 square feet was assumed to hold 4 people for a commercial space. Mr. N. Perez reported the term equivalent dwelling unit did not necessarily mean 1,000 residential square feet equaled a dwelling unit. It was a method to standardize measurements for purposes of allocations within the residential categories. Council Member Schmid expressed concern that assumptions utilized in developing standards did not match the characteristics of Palo Alto. He asked if the statement on Packet Page 474 regarding the affordable housing fee not being charged to office was true. Mr. N. Perez advised that according to Municipal Code Section 16.47 it was not charged to office. Council Member Schmid remarked that office would account for twice the number of people added to the daytime population, yet it did not pay a housing fee. The report indicated a review of housing fees was not performed, because it was covered in the Housing Element. The Housing Element did not currently contain a housing fee. He asked why a nexus study for housing was not performed. Mr. Perez indicated a housing study was not performed, because it was a different fee. Each impact fee was required to have its own nexus and review. The housing fee would be presented to the Council separately with its own nexus study. Mr. N. Perez added that housing nexus studies were under litigation at every level of California courts. Molly Stump, City Attorney, reported a housing nexus study was under way. The study would review both residential and non-residential fees. Council Member Schmid felt the Council continued to make decisions regarding development impact fees without data. A preliminary review of transportation indicated fees were adequate. He requested the basis for stating transportation fees were adequate. 11/03/2014 116- 33 MINUTES Mayor Shepherd noted the Agenda Item concerned only the Public Safety Facility fee and the General Government Facilities fee. Council Member Schmid believed the Council was being asked to approve the matrix. Mr. Perez clarified that Staff did not recommend changes or seek action regarding any fees other than the Public Safety Facility and General Government Facilities fees. Council Member Schmid asked if it was appropriate to state other fees did not need review. Mayor Shepherd stated that was not a part of the Agenda Item. Other fees would be presented to the Council in the future. Council Member Schmid asked why they were mentioned in the Staff Report. Mayor Shepherd explained that Staff utilized data approved by the Council earlier in the year. Mr. Perez clarified that in the past the Council had requested a cumulative total of impact fees to determine whether a fee of 75 percent of the maximum amount allowed was appropriate. Staff did not make a recommendation for those fees. Council Member Schmid inferred the study made a discretionary decision when it stated a preliminary review indicated fees were adequate for parks, housing, and transportation. He inquired whether the study did not make a discretionary decision. Mr. Perez reiterated that a housing study would be presented separately. Council Member Schmid inquired about a transportation study. Mr. Keene presumed fees were not adequate for transportation, but could provide a separate update on transportation in the future. Staff wanted to add two fees to every development project and begin collecting funds. As Staff obtained refined data, they would revisit the fees and adjust them. Council Member Schmid asked if a vote supporting the item would endorse the statement that a preliminary review indicated other fees were adequate. Mr. Perez was not recommending any changes to those fees. 11/03/2014 116- 34 MINUTES Mr. Keene advised that approval of the item would not be an endorsement of the statement. Mr. Perez reported the Council in March 2014 reviewed fees in conjunction with a list of needs. For example, the Council discussed changing the parks fee; however, the cost of projects on the needs list was not high enough to justify changing the fee. Council Member Schmid remarked that the March Council discussion was the preliminary review. Council Member Scharff reviewed the Council process for placing Committee recommendations on the Consent Calendar or as an Action Item. The Staff recommendation was for Council review and approval of the recommended new Public Safety Facility fee and the General Government Facilities fee. That was not the question or the Motion before the Finance Committee. Staff should be requesting the Council to review the report and provide input. He inquired whether the Council was to approve the report or the fees Ms. Stump reported Council acceptance or approval of the report was irrelevant. If the Council wished to implement the fees, then it needed to direct Staff to return with an Ordinance to establish the fees. The Finance Committee sought direction to draft an Ordinance. Council Member Scharff asked if Staff or the Finance Committee sought that direction. Ms. Stump corrected her statement to Finance Staff rather than Finance Committee. Council Member Scharff understood capital projects with identified sources of revenue could not be considered in a nexus study. Mr. Perez concurred. Council Member Scharff stated the Council had identified sources of revenue for the Public Safety Building, Fire Station Number 3, and Fire Station Number 4. He did not understand how the nexus study could be accurate if the City had identified sources of revenue. Mr. Perez reported the Council could direct Staff to remove any project for which it believed revenues were guaranteed. Staff did not wish to make that assumption. Council Member Scharff asked if the Council discussed that. 11/03/2014 116- 35 MINUTES Mr. Perez answered yes, and Staff understood the Council was in the process of drafting a funding plan. The question was whether that funding plan would materialize. The Transient Occupancy Tax (TOT) measure probably would be approved by the voters; however, a recession could significantly reduce that funding source. Staff would remove any project as directed by the Council and return with an Ordinance containing an adjusted fee. Mr. N. Perez explained that some of the information regarding the Public Safety Building was less guaranteed or more speculative at the time he drafted the needs list in 2013. Council Member Scharff asked if Mr. Perez drafted the needs list prior to the Council identifying funds for the Public Safety Building. Mr. N. Perez developed the needs list in 2013. In 2013 he and Staff collected data regarding facilities and cost estimates. Mayor Shepherd understood impact fees were utilized to support facilities that would be used more because of an increase in population. She expected facilities to be built and a fee collected because additional people caused more wear and tear on facilities. She asked how that was factored into a fee. The capital improvement would begin to fail at some point. Mr. N. Perez indicated impact fees could be utilized to replace and modernize facilities or to purchase furniture, fixtures, and equipment (FFE), but not to operate and maintain facilities. Mayor Shepherd commented that fees would be used for those types of things going forward. Mr. N. Perez advised that impact fees became less and less of a tool as the City became built out and the allocation to new development dwindled. Mayor Shepherd remarked that placing restrictions on commercial space could result in collecting even fewer fees. Stephanie Munoz felt the presentation assumed some issues not in evidence. A Public Safety Building would always be a problem, because the communications center was inadequate with respect to earthquake safety. Much of that had been taken care of through the mobile unit. Council Member Holman referred to the two charts on Packet Page 418 regarding office fees and retail/industrial fees and the at -places memorandum regarding commercial and office/institutional and industrial. She asked what was commercial and where was retail. 11/03/2014 116- 36 MINUTES Mr. N. Perez reported retail was commercial. Council Member Holman inquired about reasons for retail paying more than office/institutional when retail had fewer employees per 1,000 square feet than general office. The City utilized and considered an outdated measure of 4 employees per 1,000 square feet. The report utilized 1.5 persons served per 1,000 square feet for commercial, 1.25 persons served per 1,000 square feet for general office, and 0.5 person served per 1,000 square feet for industrial. She did not believe that could be supported. Mr. N. Perez indicated multiplying those by 2 would result in 3 employees for retail, 2.5 employees for office, and 1 employee for industrial. Council Member Holman asked why retail would have more than office. Mr. N. Perez explained that typically retail served more people than office. Council Member Holman believed that was not the case in Palo Alto. She asked if he used generalized numbers. Utilizing one number to calculate parking demand and a totally different number to calculate the fees did not make sense. Mr. N. Perez had not seen the parking figures. Council Member Holman stated it was a basic aspect of the City's Municipal Code. To a skeptical person, the report appeared to manipulate the numbers of persons served per 1,000 square feet to justify an even number across the different sectors. She referred to the Minutes found on Packet Page 464 regarding Palo Alto being relatively lower compared to peer communities on the non-residential side. She stated that Council Member Schmid had asked if approving the fees would also accept the fee rates in the tables. The Council should not accept the other fees. Mr. Keene asked if the Council was approving the other fees. Mr. N. Perez answered no. Staff recommended adding the Public Safety Facility and General Government Facilities fees to the list of fees. Council Member Holman wished to ensure the Council was not accepting the other fees. Mr. Keene reported a Motion would not have the Council accept or acknowledge existing fees. When the Council took a specific action on a 11/03/2014 116- 37 MINUTES specific Motion, that action did not automatically readopt or acknowledge every item in the Staff Report. Council Member Holman asked about a means to arrive at some number that was logical, defensible, and fair. Mr. Keene indicated Staff and the consultant were clear that the existing data and its alignment with the practice of setting fees supported the recommendation. Staff acknowledged the potential to obtain refined data that could support different conclusions in a year or two. Council Member Scharff's point was slightly different and pertained to the amount of yield the City could achieve over a 20 -year period. The total amount of $96 million included many projects on which fees could be collected for two years. After two years, Staff could determine the nexus study was incorrect and recommend adjusting the fee. Staff did not have a confident answer for providing data methodology to support a significantly different conclusion. The Council should proceed with the basic methodology for now or not proceed. Mayor Shepherd noted the City was not collecting the fee currently, and the Council was not reviewing the methodology for collecting the fee. The Council was directing Staff to draft an Ordinance. She asked if Council Member Holman was concerned about the methodology. The breakdown between residential and commercial was one element of that. She asked if Council Member Holman was concerned about the calculation of the fee. Council Member Holman was concerned about both aspects. She did not wish to do nothing, but was having difficulty determining what to do. Mayor Shepherd added that Staff would return with an Ordinance for Council review. Council Member Holman stated without some kind of clarity regarding what the Council expected Staff to provide, the current discussion was pointless. Council Member Burt concurred with a need for clarification. He inquired whether fees were calculated based upon facility needs and revenue sources. Mr. Perez answered yes. Council Member Burt advised that infrastructure planning and the impact fees were developed in parallel over the past year and a half. The two were not reconciled in the late spring or early summer of 2014. When the Finance Committee discussed the item, the Council had not allocated revenue 11/03/2014 116- 38 MINUTES sources for public facility needs. Staff should recalculate the basis in facility needs after the election. Mr. N. Perez commented that amounts always changed. Council Member Burt clarified that amounts did not change to such a great extent. From the $96 million listed for public safety facilities, $57 million for the Public Safety Building should be removed. Mr. N. Perez asked if the amount was 100 percent non -speculative. Mr. Keene felt Staff should return with the item. The Infrastructure Funding Plan occurred subsequent to development of the fees. The Public Safety Building could cost more than estimated. The Council did not fund all items on the infrastructure projects list; therefore, the fee revenues could be reallocated to other projects. Council Member Burt added that the Council could decide to fund 85 percent of the Public Safety Building with funds previously identified. Based upon existing policy direction, the Public Safety Building and Fire Station Number 3 did not belong on the list of needs. That alone was sufficient reason to return the item for redirection. He inquired about the source for 1.25 persons served per 1,000 square feet contained in Table 20. Mr. N. Perez advised that it was a standard California metric. Council Member Burt noted the City's Zoning Code used a standard of 4 people per 1,000 square feet. The Council had discussed whether that number was too low. The difference was not a nominal amount, and ensuing calculations flowed from that number. Mr. N. Perez explained that 2.5 was the number of employees per 1,000 square feet. The 1.25 was the number of persons served per 1,000 square feet. Council Member Burt inquired whether Mr. Perez was discounting the number by 50 percent. Mr. N. Perez responded yes, because an employee was weighted as 50 percent of a resident. Council Member Burt believed the Council wanted to return both items for recalculation based upon office density. A second issue was public safety needs that lacked a revenue source. 11/03/2014 116- 39 MINUTES Mr. Keene felt comfortable with reviewing public safety facilities to determine the amount of funding that could be set aside for collecting a fee. The distribution of that fee would be affected by other changes. Staff could review one component of the non-residential office piece in a short period, but not necessarily the whole range of issues related to residential versus non-residential. Staff would review the general Infrastructure Funding Plan in relation to the fee. Council Member Burt asked if the item would return to the Council or the Finance Committee. Mr. Keene indicated that would be the Council's discretion. MOTION: Council Member Burt moved, seconded by Council Member Berman to return to Finance Committee for review of both the appropriate non-residential densities and corresponding calculations and review public safety needs that do not have identified revenue sources. Council Member Berman believed additional information had created more questions to which the Council needed answers. The Finance Committee considered fees on May 6, 2014. The Infrastructure Committee developed the Infrastructure Funding Plan in early August 2014. A great deal had changed since then. The Council needed a better understanding of numbers in Tables 19 and 20. Council Member Klein chastised Staff and the Finance Committee for their poor review of the issues. The amount of fees collected over a short period of time was not significant in comparison to a $57 million Public Safety Building. Staff's reasons for delaying the item were not defensible. He requested the City Attorney provide a definition of "without an identified revenue source." The Council could consider creating a gap that could be filled by the fee. The Council had not made legal promises regarding funding of the fire station needs. The City would depend on the consultant's expertise in a lawsuit; therefore, the Council had to rely on his methodology or reject the fees. Council Member Holman inquired about the timing of returning the item to the Finance Committee and then the Council. Mr. Perez would attempt to present it at the December 16 meeting. Mr. Keene could not make a commitment with respect to a timeline. Vice Mayor Kniss stated the item should not have been presented to the Council. She wanted the item to return quickly to prevent continued loss of 11/03/2014 116- 40 MINUTES revenue and requested the item be presented to the Finance Committee at its next meeting. Mayor Shepherd noted $22,000 of the fees collected through 2023 could support public safety needs. She wanted to understand if the Infrastructure Funding Plan included revenues from the fees. Mr. Keene would present the item as soon as possible. Staff could respond to the Infrastructure Funding Plan component of the Motion more easily than the methodological component. Staff would consider bifurcating the two components. MOTION PASSED: 9-0 11/03/2014 116- 41 City of Palo Alto Development Impact Fees As per FY 2015 Adopted Municipal Fee Schedule pages 23-1 and 23-2 Fee Category Type of Project Parks Community Centers Libraries Housing Total Fees (NIC Transp.) Transportation Residential - New Homes Only* Single family < 3,000 sq. feet Single family >3,000 sq. feet Multi -family <1= 900 sq. feet Multi -family >900 sq. feet $11,180/residence $16,695/residence $3,700/unit $7,318/unit $2,898/residence $4,339/residence $963/unit $1,907/unit $1,012/residence $1,507/residence $332/unit $604/unit EXEMPT EXEMPT EXEMPT EXEMPT $15,090/res. $22,541/res. $4,995/unit $9,829/unit $3,354 per net new PM peak hr trip $3,354 per net new PM peak hr trip $3,354 per net new PM peak hr trip $3,354 per net new PM peak hr trip Non-residential Commercial/Industrial Hotel/Motel $4,748 per 1,000 sq ft or fraction thereof $2,147 per 1,000 sq ft or fraction thereof $268 per 1,000 sq ft or fraction thereof $121 per 1,000 sq ft or fraction thereof $255 per 1,000 sq ft or fraction thereof $107 per 1,000 sq ft or fraction thereof $19.31 per sq ft $19.31 per sq ft $23.89 per net new sq ft $21.15 per net new sq ft $3,354 per net new PM peak hr trip $3,354 per net new PM peak hr trip Residential Subdivisions Single-family Multi -family Parkland Dedication Fee** 531 sq ft of parkland/unit or $56,736/unit in -lieu fee 366 sq ft of parkland/unit or $39,106/unit in -lieu fee Certain Residential Projects and New Commercial Projects*** Public Art Fee*** 1% of first $100 mill. const. valuation; 0.9% of valuation above $1 mill. Special Zones Stanford Research Park/EI Camino Real CS Zone San Antonio/West Bayshore Area Charleston/Arastradero Commercial Charleston/Arastradero Residential Parking in -lieu fee for Downtown Assessment District Traffic Impact Fee $11.64 per net new sq ft $2.40 per sq ft $0.36 per sq ft $1,225 per unit $63,848 per parking space Notes: "Single-family" is defined as a single dwelling unit that does not share a common wall with another dwelling unit *Square footage refers to living area, not lot size. **In -Lieu Parkland Dedication Fee is an option only for projects of < 50 parcels. (Larger projects must dedicate land.) ***Public Art Fee applies to residential projects of 5 units or more and new commercial projects with a floor area of at least 10,000 sq ft and a construction value of at least $200,000. DAVID Attachment C TUSSIG ASSOCIATES, INC. Public Finance Public Private Partnerships Urban Economics DEVELOPMENT IMPACT FEE JUSTIFICATION STUDY CITY OF PALO ALTO CITY OF PALO ALTO DECEMBER 10, 2014 Prepared by: DAVID TAUSSIG & ASSOCIATES, INC. 2250 HYDE STREET, 5TH FLOOR SAN FRANCISCO, CALIFORNIA 94109 (800) 969-4382 Newport Beach San Francisco Riverside Fresno Chicago, Illinois Dallas, Texas TABLE OF CONTENTS SECTION PAGE EXECUTIVE SUMMARY 1 SECTION I. INTRODUCTION 3 SECTION II. LEGAL REQUIREMENTS TO JUSTIFY DEVELOPMENT IMPACT FEES 4 SECTION III. DEMOGRAPHICS 8 SECTION IV. THE NEEDS LIST 12 SECTION V. METHODOLOGY USED TO CALCULATE FEES 15 A. PUBLIC SAFETY FACILITIES 17 B. GENERAL GOVERNMENT FACILITIES 21 SECTION VI. SUMMARY OF FEES 24 APPENDICES APPENDIX A: FEE DERIVATION WORKSHEETS City of Palo Alto TOC Development Impact Fee Justification Study December 10, 2014 DAVID TAUSSIG fi & ASSOCIATES EXECUTIVE SUMMARY In order to adequately plan for new development and identify the public facilities and costs associated with mitigating the direct and cumulative impacts of new development, David Taussig & Associates, Inc. ("DTA") was retained by the City of Palo Alto (the "City") to prepare an AB 1600 Fee Justification Study (the "Fee Study") for specific categories of public improvements not currently covered by the City's Fee Program. The Fee Study is intended to comply with Section 66000 et. seq. of the Government Code, which was enacted by the State of California in 1987, by identifying additional public facilities required by new development ("Future Facilities") and determining the level of fees that may be imposed to pay the costs of the Future Facilities. Fee amounts have been determined that will finance Public Safety and General Government facilities at levels identified by the various City departments as being necessary to meet the needs of new development through buildout in 2035. The Future Facilities and associated construction costs are identified in the Needs List, which is included in Section IV of the Fee Study. A description of the methodology used to calculate the fees is included in Section V. All new development may be required to pay its "fair share" of the cost of the new infrastructure through the development fee program. ORGANIZATION OF THE REPORT Section I of this report provides an introduction to the Fee Study including a brief description of City surroundings, and background information on development fee financing. Section II provides an overview of the legal requirements for implementing and imposing the fee amounts identified in the Fee Study. Section I I I includes a discussion of projected new development and demand variables such as future population and employment, assuming current growth trends in housing, commercial, and industrial development extrapolated through buildout in 2035. Projections of future development are based on data provided by the City and the City's 2007 Comprehensive Plan.' Section IV includes a description of the Needs List, which identifies the facilities needed to serve new development through buildout in 2035 that are eligible for funding by the impact fees. The Needs List provides the total estimated facilities costs, offsetting revenues, net costs to the City, and costs allocated to new development for all facilities listed in the Needs List. This list is a compilation of projects and costs identified by various City departments. Section V discusses the findings required under the Mitigation Fee Act and requirements necessary to be satisfied when establishing, increasing, or imposing a fee as a condition of new development, and satisfies the nexus requirements for each facility included as part of this study. Section V also contains the description of the methodology used to determine the fees for all facility types. Finally, Section VI includes a summary of the proposed fees justified by this Fee Study. Appendix A includes the calculations used to determine the various fee levels. IMPACT FEE SUMMARY The total fee amounts required to finance new development's share of the costs of facilities identified in the Needs List are summarized in Table ES -1 below. Fees within this Fee Study reflect the maximum fee levels that may be imposed on new development. 1 City of Palo Alto, Comprehensive Plan (1998) and Comprehensive Plan Amendment (in progress). City of Palo Alto Page 1 Development Impact Fee Justification Study December 10, 2014 Di- DAVID TAUSSIG & ASSOCIATES EXECUTIVE SUMMARY TABLE ES -1 DEVELOPMENT IMPACT FEE SUMMARY City Facilities Residential (Per Unit) Single Family Multi -Family Non -Residential (Per 1,000 BSF) Commercial Office/Institutional Industrial Public Safety Facilities General Government Facilities $1,328 $1,673 $1,062 $1,339 $743 $936 $991 $1,249 $248 $312 Total $3,001 $2,401 $1,680 $2,239 $560 EXEMPTIONS California Government Code permits fee exemptions for affordable housing and senior housing at the discretion of local jurisdictions. Such fee exemptions are a policy matter that should be based on the consideration of the greater public good provided by the use exempted from the fee. City of Palo Alto Page 2 Development Impact Fee Justification Study December 10, 2014 DAVID TAUSSIG & ASSOCIATES SECTION I: INTRODUCTION Part of the San Francisco Metropolitan Area, the City of Palo Alto ("City" or "Palo Alto") is located approximately 35 miles south of San Francisco within the County of Santa Clara. Named after the coastal redwood tree that grows along San Francisquito Creek, the City is more than 100 years old, encompassing an area roughly the size of 26 square miles and boasting approximately 30,000 housing units, more than 65,000 residents, and over 90,000 jobs. Yet despite the City's mature and largely developed nature, the presence of excellent schools, the world's finest employment centers and job creators, and high quality of life marks across the board, make the City incredibly attractive to new residential and non-residential development and re -development. For instance, the average homes sales price recorded in the City in February 2014 was nearly $2.0 million. Thus, in order to adequately plan for new development and identify the public facilities and costs associated with mitigating the direct and cumulative impacts of new development, David Taussig & Associates, Inc. ("DTA") was retained by the City to prepare an AB 1600 Fee Justification Study (the "Fee Study") for specific categories of public improvements not currently covered by the City's Fee Program. Impact fees are calculated here using updated information on development and City facilities. Moreover, the methods used to calculate impact fees in this study are intended to satisfy all legal requirements governing such fees, including provisions of the U. S. Constitution, the California Constitution, and the California Mitigation Fee Act (Government Code Sections 66000 et. seq.). Impact fees calculated in this report are intended to complement the City's existing impact fees. More specifically, the Fee Study is intended to comply with Section 66000 et. seq. of the Government Code, which was enacted by the State of California in 1987, by identifying additional public facilities required by new development ("Future Facilities") and determining the level of fees that may be imposed to pay the costs of the Future Facilities. Fee amounts have been determined that will finance facilities at levels identified by the various City departments as deemed necessary to meet the needs of new development. The Future Facilities and associated construction costs are identified in the Needs List, which is included in Section IV of the Fee Study. All new development may be required to pay its "fair share" of the cost of the new infrastructure through the development fee program. The fees are calculated to fund the cost of facilities needed to meet the needs of new development. The steps followed in the Fee Study include: 1. Demographic Assumptions: Identify future growth that represents the increased demand for facilities. 2. Facility Needs and Costs: Identify the amount of public facilities required to support the new development and the costs of such facilities. Facilities costs and the Needs List are discussed in Section IV. 3. Cost Allocation: Allocate costs per equivalent dwelling unit. 4. Fee Schedule: Calculate the fee per residential unit or per non-residential square foot. City of Palo Alto Page 3 Development Impact Fee Justification Study December 10, 2014 DAVID TAUSSIG & ASSOCIATES JUSTIFY DEVELOPMENT IMPACT FEES SECTION II: LEGAL REQUIREMENTS TO The levy of impact fees is one authorized method of financing the public facilities necessary to mitigate the impacts of new development. A fee is "a monetary exaction, other than a tax or special assessment, which is charged by a local agency to the applicant in connection with approval of a development project for the purpose of defraying all or a portion of the cost of public facilities related to the development project.." (California Government Code, Section 66000). A fee may be levied for each type of capital improvement required for new development, with the payment of the fee typically occurring prior to the beginning of construction of a dwelling unit or non-residential building. Fees are often levied at final map recordation, issuance of a certificate of occupancy, or more commonly, at building permit issuance. However, Assembly Bill ("AB") 2604 (Torrico) which was signed into law in August 2008, encourages public agencies to defer the collection of fees until close of escrow to an end user in an attempt to assist California's troubled building industry. AB 1600, which created Section 66000 et. seq. of the Government Code was enacted by the State of California in 1987. In 2006, Government Code Section 66001 was amended to clarify that a fee cannot include costs attributable to existing deficiencies, but can fund costs used to maintain the existing level of service ("LOS") or meet an adopted level of service that is consistent with the general plan. Section 66000 et seq. of the Government Code thus requires that all public agencies satisfy the following requirements when establishing, increasing, or imposing a fee as a condition of new development: 1. Identify the purpose of the fee. (Government Code Section 66001(a)(1)) 2. Identify the use to which the fee will be put. (Government Code Section 66001(a)(2)) 3. Determine that there is a reasonable relationship between the fee's use and the type of development on which the fee is to be imposed. (Government Code Section 66001(a)(3)) 4. Determine how there is a reasonable relationship between the need for the public facility and the type of development project on which the fee is to be imposed. (Government Code Section 66001(a)(4)) 5. Discuss how there is a reasonable relationship between the amount of the fee and the cost of the public facility or portion of the public facility attributable to the development on which the fee is imposed. This section presents each of these items as they relate to the imposition of the proposed fees in the City of Palo Alto. City of Palo Alto Page 4 Development Impact Fee Justification Study December 10. 2014 DAVID TAUSSIG & ASSOCIATES SECTION II: LEGAL REQUIREMENTS TO JUSTIFY DEVELOPMENT IMPACT FEES A. PURPOSE OF THE FEE (GOVERNMENT CODE SECTION 66001(A)(1)) New residential and non-residential development within the City will generate additional residents and employees who will require additional public facilities. Land for these facilities will have to be acquired and public facilities and equipment will have to be expanded, constructed, or purchased to meet this increased demand. The Fee Study has been prepared in response to the projected direct and cumulative effect of future development. Each new development will contribute to the need for new public facilities. Without future development many of the new public facilities on the Needs List would not be necessary as the existing facilities are generally adequate for the City's present population. In instances where facilities would be built regardless of new development, the costs of such facilities have been allocated to new and existing development based on their respective level of benefit. The proposed impact fee will be charged to all future development, irrespective of location, within the City. Even future "in -fill" development projects contribute to impacts on public facilities because they are an interactive component of a much greater universe of development located throughout the City of Palo Alto. First, the property owners and/or the tenants associated with any new development in the City can be expected to place additional demands on Palo Alto's facilities funded by the fee. Second, these property owners and tenants are dependent on and, in fact, may not have chosen to utilize their development, except for residential, retail, employment, and recreational opportunities located nearby on other existing and future development. Third, the availability of residents, employees, and customers throughout the City has a growth -inducing impact without which some of the "in -fill" development would not occur. As a result, all development projects within Palo Alto contribute to the cumulative impacts of development. The impact fees will be used for the acquisition, installation, and construction of public facilities identified on the Needs Lists to mitigate the direct and cumulative impacts of new development within the City. B. THE USE TO WHICH THE FEE IS TO BE PUT (GOVERNMENT CODE SECTION 66001(A)(2)) The fee will be used for the acquisition, installation, and construction of the public facilities identified on the Needs Lists, included in Section IV of the Fee Study and other appropriate costs to mitigate the direct and cumulative impacts of new development in the City. The fee will provide a source of revenue to Palo Alto to allow for the acquisition, installation, and construction of public facilities, which in turn will both preserve the quality of life in the City and protect the health, safety, and welfare of the existing and future residents and employees. City of Palo Alto Page 5 Development Impact Fee Justification Study December 10. 2014 DAVID TAUSSIG & ASSOCIATES JUSTIFY DEVELOPMENT IMPACT FEES SECTION II: LEGAL REQUIREMENTS TO C. DETERMINE THAT THERE IS A REASONABLE RELATIONSHIP BETWEEN THE FEE'S USE AND THE TYPE OF DEVELOPMENT PROJECT UPON WHICH THE FEE IS IMPOSED (BENEFIT RELATIONSHIP) (GOVERNMENT CODE SECTION 66001(A)(3)) As discussed in Section A above, it is the projected direct and cumulative effect of future development that has prompted the preparation of the Fee Study. Each development will contribute to the need for new public facilities. Without future development, the City would have no need to construct many of the public facilities on the Needs List. For all other facilities, the costs have been allocated to both existing and new development based on their level of benefit. Even future "in -fill" development projects, which may be adjacent to existing facilities, further burden existing public facilities. Consequently, all new development within Palo Alto, irrespective of location, contributes to the direct and cumulative impacts of development on public facilities and creates the need for new facilities to accommodate growth. The fees will be expended for the acquisition, installation, and construction of the public facilities identified on the Needs List and other authorized uses, as that is the purpose for which the fee is collected. As previously stated, all new development creates either a direct impact on public facilities or contributes to the cumulative impact on public facilities. Moreover, this impact is generally equalized among all types of development because it is the increased demands for public facilities created by the future residents and employees that create the impact upon existing facilities. For the aforementioned reasons, new development benefits from the acquisition, construction, and installation of the facilities on the Needs Lists. D. DETERMINE How THERE IS A REASONABLE RELATIONSHIP BETWEEN THE NEED FOR THE PUBLIC FACILITY AND THE TYPE OF DEVELOPMENT PROJECT UPON WHICH THE FEE IS IMPOSED (IMPACT RELATIONSHIP) (GOVERNMENT CODE SECTION 66001(A)(4)) As previously stated, all new development within the City, irrespective of location, contributes to the direct and cumulative impacts of development on public facilities and creates the need for new facilities to accommodate growth. Without future development, many of the facilities on the Needs Lists would not be necessary. For certain other facilities, the costs have been allocated to both existing and new development based on their level of benefit. For the reasons presented herein, there is a reasonable relationship between the need for the public facilities included on the Needs List and all new development within Palo Alto. City of Palo Alto Page 6 Development Impact Fee Justification Study December 10. 2014 DAVID TAUSSIG & ASSOCIATES JUSTIFY DEVELOPMENT IMPACT FEES SECTION II: LEGAL REQUIREMENTS TO E. THE RELATIONSHIP BETWEEN THE AMOUNT OF THE FEE AND THE COST OF THE PUBLIC FACILITIES ATTRIBUTABLE TO THE DEVELOPMENT UPON WHICH THE FEE IS IMPOSED ("ROUGH PROPORTIONALITY" RELATIONSHIP) (GOVERNMENT CODE 66001(A) As set forth above, all new development within the City impacts public facilities. Moreover, each individual development project and its related increase in population and/or employment, along with the cumulative impacts of all development in Palo Alto, will adversely impact existing facilities. Thus, imposition of the fee to finance the facilities on the Needs Lists is an efficient, practical, and equitable method of permitting development to proceed in a responsible manner. New development impacts facilities directly and cumulatively. In fact, without any future development, the acquisition, construction, and/or installation of many of the facilities on the Needs Lists would not be necessary as existing City facilities are generally adequate. Even new development located adjacent to existing facilities will utilize and benefit from facilities on the Needs List. The proposed fee amounts are roughly proportional to the impacts resulting from new development based on the analyses contained in Section V. Thus there is a reasonable relationship between the amount of the fee and the cost of the facilities. City of Palo Alto Page 7 Development Impact Fee Justification Study December 10. 2014 DAVID TAUSSIG fi & ASSOCIATES SECTION III: DEMOGRAPHICS In order to determine the public facilities needed to serve new development as well as establish fee amounts to fund such facilities, the City provided DTA with projections of future population and development within Palo Alto. DTA categorized developable residential land uses as Single Family and Multi -Family. Developable non-residential land uses within the City's commercial, office, and industrial zones are categorized as Commercial, Office/Institutional, and Industrial respectively. Additional details are included in the table below. Based on these designations, DTA established fees for the following five (5) land use categories to acknowledge the difference in impacts resulting from various land uses and to make the resulting fee program implementable. LAND USE CLASSIFICATION FOR FEE STUDY DEFINITION Single Family Includes single family detached homes Multi -Family Includes buildings with attached residential units including apartments, town homes, condominiums, and all other residential units not classified as Single Family Detached Commercial Includes, but is not limited to, buildings used as the following: • Retail • Service -oriented business activities • Department stores, discount stores, furniture/appliance outlets, home improvement centers • Entertainment centers • Sub -regional and regional shopping centers Office/Institutional Includes, but is not limited to, buildings used as the following: • Business/professional office • Professional medical offices and hospitals • Schools Industrial Includes, but is not limited to, buildings used as the following: • Light manufacturing, warehouse/distribution, wholesaling; • Large-scale warehouse retail • Service commercial activities • Public uses, arterial roadways and freeways providing automobile and public transit access • Automobile dealerships • Support commercial services The City of Palo Alto's Comprehensive PIan1 (the "Comprehensive Plan") demographics were used as estimates of the number of housing units and nonresidential building square feet to be built in the City. In addition, the Comprehensive Plan was used to project the additional population generated from new development. However, Comprehensive Plan Update data was also reviewed in light of projections prepared by the Association of Bay Area Governments ("ABAG"). 1 City of Palo Alto, Comprehensive Plan (1998). See also Comprehensive Plan Amendment (in progress). City of Palo Alto Development Impact Fee Justification Study December 10, 2014 Page 8 1-i DAVID TAUSSIG & ASSOCIATES SECTION III: DEMOGRAPHICS Notably, DTA attempted to utilize metrics (e.g. average household size) that standardized existing demographics with the projections found in the Comprehensive Plan. Future residents and employees will create additional demand for facilities that existing public facilities cannot accommodate. In order to accommodate new development in an orderly manner, while maintaining the current quality of life in the City, the facilities on the Needs List (Section IV), as reviewed and approved by the City Council on March 3, 2014, and at subsequent Council and Finance Committee meetings, will need to be constructed. For those facilities that are needed to mitigate demand from new development, facility costs have been allocated to new development only. In those instances when it has been determined that the new facilities will serve both existing and new development, facility costs have been allocated based on proportionate benefit (see Equivalent Dwelling Unit discussion in Section V). The following sections summarize the existing and future development figures that were used in calculating the impact fees. 1. EXISTING POPULATION FOR LAND USE CATEGORIES According to information provided by the City of Palo Alto, and generally confirmed by the California Employment Development Department - Demographic Research Unit, there are 17,614 existing Single Family units and 10,843 existing Multi -Family units within the City. DTA has used the following demographic information provided by the City of Palo Alto and the Comprehensive Plan which assume resident -per -unit factors of 2.68 and 2.12 per Single Family unit and Multi -Family unit, respectively. Therefore, the City population is generally comprised of 70,193 residents living in 28,457 Single Family and Multi -Family homes. Table 1 below summarizes the existing demographics for the residential land uses. TABLE 1 CITY OF PALO ALTO ESTIMATED EXISTING RESIDENTIAL DEVELOPMENT Residential Land Use Single Family Residential Multi -Family Residential Existing Residents 47,206 22,987 Existing Housing Units 17,614 10,843 Average Household Size 2.68 2.12 1 • 28,457 NA DTA has also utilized the following non-residential demographic information provided by the City of Palo Alto which assumes existing City non-residential land uses utilize employees -per -thousand -square -foot factors of 4.00, 3.00 and 1.00 employees per 1,000 building square feet of Office/Institutional, Commercial, and Industrial, City of Palo Alto Development Impact Fee Justification Study Page 9 December 10. 2014 DAVID TAUSSIG & ASSOCIATES SECTION III: DEMOGRAPHICS respectively. This results in 11,662 existing Commercial employees, 63,534 existing Office/Institutional employees, and 18,099 existing Industrial City employees, as shown in Table 2 below. Each of these figures are generally confirmed by data from the Association of Bay Area Governments ("ABAG") and the U.S. Census Bureau. Importantly, for many of the facilities considered in this Fee Study, EDUs are calculated based on the number of residents or employees ("Persons Served") generated by each land use class. "Persons Served" equal Residents plus 50% of Employees, and is a customary industry practice designed to capture the reduced levels of service demanded by employees. For existing Persons Served estimates, please reference Table 2 below. TABLE 2 CITY OF PALO ALTO ESTIMATED EXISTING NON-RESIDENTIAL DEVELOPMENT Non -Residential Land Use Existing Employees per Employees 1,000 BSF Persons Served per 1,000 BSF Existing Persons Served 1 Commercial 11,662 3.00 1.50 5,831 Office/Institutional 63,534 4.00 2.00 31,767 Industrial 18,099 1.00 0.50 9,050 Total/Average 93,295 NA NA 46,648 1 Persons served equal Residents plus 50% of employees. 2. FUTURE POPULATION FOR NEW LAND USE CATEGORIES (2035) According to information provided by the City of Palo Alto, and confirmed by ABAG, there are projected to be an additional 2,552 Single Family units and 1,571 Multi - Family units within the City-wide area at 2035, the time horizon utilized for this Fee Study. DTA has used the following demographic information provided by the City of Palo Alto which assumes future resident -per -unit factors of 2.68 and 2.12 per Single Family unit and Multi -Family unit, respectively. This results in an additional 10,170 residents living in 4,123 Single Family and Multi -Family homes within the City. Table 3 on the following page summarizes the future demographics for the residential land uses. TABLE 3 CITY OF PALO ALTO FUTURE RESIDENTIAL DEVELOPMENT Residential Land Use Projected Residents Projected Average Housing Units Household Size Single Family Residential Multi -Family Residential 6,839 3,331 2,552 1,571 2.68 2.12 Total/Average 10,170 4,123 NA City of Palo Alto Development Impact Fee Justification Study Page 10 December 10. 2014 DAVID TAUSSIG & ASSOCIATES SECTION III: DEMOGRAPHICS In terms of non-residential property, Palo Alto expects to generate 21,428 future jobs, which can be broken down into 2,679 jobs relating to Commercial development, 14,592 jobs for Office/Institutional development, and 4,157 jobs for Industrial development within the City. The City of Palo Alto provided the projected employment discussed above, which results in estimated employees -per -thousand -square -foot factors of 4.00, 3,00, and 1.00 employees per 1,000 building square feet of Office/Institutional, Commercial, and Industrial, respectively, as shown in Table 4 below. Again, for many of the facilities considered in this Fee Study, EDUs are calculated based on the number of residents or employees ("Persons Served") generated by each land use class. "Persons Served" equal Residents plus 50% of Employees, and is a customary industry practice designed to capture the reduced levels of service demanded by employees. For future Persons Served estimates, please reference Table 4 below. TABLE 4 CITY OF PALO ALTO FUTURE NON-RESIDENTIAL DEVELOPMENT Non -Residential Land Use Future Employees per Employees 1,000 BSF Persons Served per 1,000 BSF Future Persons Served 1 Commercial 2,679 3.00 1.50 1,339 Office/Institutional 14,592 4.00 2.00 7,296 Industrial 4,157 1.00 0.50 2,079 Total/Average 1 21,428 1 NA 1 NA 1 10,714 1 Persons served equal Residents plus 50% of employees. Importantly, the land use categories that have been discussed above are consistent with (i) growth projections prepared by the City for the Comprehensive Plan, and (ii) land uses generally included in other development impact fee programs of the City. 3. EQUIVALENT DWELLING UNIT (EDU) PROJECTIONS Equivalent Dwelling Units ("EDU") are a means of quantifying different land uses in terms of their equivalence to a residential dwelling unit, where equivalence is measured in terms of potential infrastructure use or benefit for each type of public facility. Since nearly all of the facilities proposed to be financed by the levy of impact fees will serve both residential and non-residential property, DTA projected the number of future EDUs based on the number of residents or employees generated by each land use class. For other facilities, different measures, such as number of trips, more accurately represent the benefit provided to each land use type. The EDU projections for each facility are shown in the fee derivation worksheets in Appendix A. City of Palo Alto Page 11 Development Impact Fee Justification Study December 10. 2014 u et DAVID TAUSSIG & ASSOCIATES SECTION IV: THE NEEDS LIST Identification of the facilities to be financed is a critical component of any development impact fee program. In the broadest sense, the purpose of impact fees is to protect the public health, safety, and general welfare by providing for adequate public facilities. "Public Facilities" per Government Code Section 66000 includes "public improvements and community amenities." Government Code Section 66000 requires the identification of those facilities for which impact fees are going to be used as the key financing mechanism. Identification of the facilities may be made in an applicable general or specific plan, other public documents, or by reference to a Capital Improvement Program ("CIP"). DTA has worked closely with City staff to develop the list of facilities to be included in the Fee Study ("the Needs List"). Additionally, the Needs List was reviewed and approved by the City Council on March 3, 2014 at a public hearing, and further evaluated during several later public hearings. For purposes of the City's fee program, the Needs List is intended to be the official public document identifying the facilities eligible to be financed, in whole or in part, through the levy of a development impact fee on new development within Palo Alto. The Needs List is organized by facility element (or type) and includes a cost section consisting of six (6) columns, which are defined in Table 5 below: TABLE 5 CITY OF PALO ALTO NEEDS LIST EXPLANATION OF COST SECTION Column Title Contents Source Ili Total Cost for Facility The total estimated facility cost including engineering, design, construction, land acquisition, and equipment (as applicable) City Offsetting Revenues to New & Existing Development Share of Total Offsetting Revenues allocated to new and existing development City Net Cost to City The difference between the Total Cost and the Offsetting Revenues (column 1 plus column 2) Calculated by DTA Percent of Cost Allocated to New Development Net Cost Allocated to New Development based on New Development's Share of Facilities Calculated by DTA Net Cost Allocated to New Development The Net Cost to City Multiplied by the Percentage Cost Allocated to New Development Calculated by DTA Policy Background or Objective Identifies policy source or rationale for facility need City Council or Comprehensive Plan City of Palo Alto Development Impact Fee Justification Study Page 12 December 10, 2014 DAVID TAUSSIG & ASSOCIATES SECTION IV: THE NEEDS LIST DTA surveyed City staff on required facilities needed to serve new development as a starting point for its fee calculations. As part of the survey, DTA conducted extensive research with City departments such as Planning, Public Works, Parks & Recreation, Library, Transportation, etc., and then narrowed the focus to those facility needs that were deemed most timely and prudent to include in the Fee Study. More specifically, the survey included the project description, justification, public benefit, estimated costs, and project financing for each proposed facility. Through regular discussions between DTA and City staff, the Needs List has gone through multiple series of revisions to fine-tune the needs, costs, and methodologies used in allocating the costs for each facility. For purposes of the fee program, it was determined that a planning horizon through 2035 would be appropriate. Importantly, escalations in project construction costs could be included in future fee increases that would need to be approved by the Palo Alto City Council. The final Needs List is shown on the following page. City of Palo Alto Page 13 Development Impact Fee Justification Study December 10. 2014 DAVID TAUSSIG �� & ASSOCIATES SECTION IV: THE NEEDS LIST DEVELOPMENT IMPACT FEE PROGRAM CITY OF PALO ALTO PUBLIC FACILITIES NEEDS LIST THROUGH 2035 Facility Name {t} {2} {3} (4) (5) (6) Percent of Cost Total Cost for Facility Off -setting Revenues Net Cost to City Allocated to Cost Allocated to Policy Background or New New Development Development Objective A. PUBLIC SAFETY 1. Police Facilities 1 Public Safety Building('PSB")- Replace (44,850 square feet) Subtotal 2. Fire Facilities 2 Fire Station 3 (Rinconada Park - built 1948) - Replace 3 Fire Station 4 (Meadow/Middlefield - built 1953) - Replace 4 BC Van (x2) 5 Fire Trucks (x2) 6 Type III Engine (x2) 7 Training Tower & Related Land Acquisition 8 Type I Engine (x 8)-2024 9 Ambulances (x4)-2022-2025 10 Miscellaneous Upgrades (Van, Trucks, Engines, Ambulances) Subtotal 11 Public Safety Revenues not yet Committed TOTAL PUBLIC SAFETY FACILITIES $57,000,000 ($57,000,000) $0 0.00% $0 Comprehensive Plan $57,000,000 $0 $0 0.00% $0 $6,700,000 (56,700,000) $0 0.00% $0 Comprehensive Plan $7,500,000 $0 $7,500,000 53.15% $3,986,532 Comprehensive Plan $200,000 $0 $200,000 30.37% $60,747 Comprehensive Plan $2,000,000 $0 $2,000,000 30.37% $607,472 Comprehensive Plan $800,000 $0 $800,000 30.37% $242,989 Comprehensive Plan $8,000,000 $0 $8,000,000 15.19% $1,214,943 Comprehensive Plan $4,200,000 $0 $4,200,000 30,37% $1,275,690 Comprehensive Plan $1,300,000 $0 $1,300,000 30.37% $394,856 Comprehensive Plan $8,500,000 $0 $8,500,000 30.37% $2,561,754 Comprehensive Plan $39,200,000 $0 $32,500,000 31.89% $10,364,983 $0 $0 NA $0 $96,200,000 (563,700,000) $32,500,000 31.89% $10,364,983 B. GENERAL GOVERNMENT FACILITIES #REF! 1 Information Technology Upgrades 2 Buildings Systems Improvements 3 Civic Center Plaza Deck 4 Municipal Service Center Improvements (Immediate) 5 Municipal Services .Center -Replace 6 Ventura Buildings Improvements 7 General Govemment Revenues not yet Committed TOTAL GENERAL GOVERNMENT FACILITIES $750,000 ($75,000) $6,300,000 ($100,000) $16,000,000 $0 $1,991,000 $0 $93,000,000 ($32,550,000) $690,000 $0 $0 $118,731,000 ($32,725,000) $675,000 15.19% $102,511 Comprehensive Plan $6,200,000 15.19% $941,581 Comprehensive Plan $16,000,000 15.19% $2,429,886 Comprehensive Plan $1,991,000 15.19% $302,369 Comprehensive Plan $60,450,000 15.19% $9,180,413 Comprehensive Plan $690,000 15.19% $104,789 Comprehensive Plan $0 NA $0 $86,006,000 15.19% $13,061,548 Total all Facilities 5214,931,000 (596,425,000) 5118,506,000 19.77% 523,426,531 City of Palo Alto Page 14 Development Impact Fee Justification Study December 10, 2014 DAVID TAUSSIG SECTION V: METHODOLOGY USED TO & ASSOCIATES CALCULATE FEES Pursuant to the nexus requirements of Government Code 66000, a local agency is required to "determine how there is a reasonable relationship between the amount of the fee and the cost of the public facility or portion of the public facility attributable to the development on which the fee is imposed." It is impossible to precisely determine the impact that a specific new residential unit, commercial project, or industrial development will have on existing facilities. Additionally, predicting future residents' or employees' specific behavioral patterns, park and transportation, and health and welfare requirements is extremely difficult, and would involve numerous assumptions that are subject to substantial variation. Recognizing these limitations, the Legislature drafted AB 1600 to specifically require that a "reasonable" relationship be determined, not a direct cause and effect relationship. There are many methods or ways of calculating fees, but they are all based on determining the cost of needed improvements and assigning those costs equitably to various types of development. Each of the fee calculations employs the concept of an Equivalent Dwelling Unit ("EDU") or Equivalent Benefit Unit ("EBU") to allocate benefit among the five (5) land use classes. EDUs are a means of quantifying different land uses in terms of their equivalence to a residential dwelling unit, where equivalence is measured in terms of potential infrastructure use or benefit for each type of public facility. For many of the facilities considered in this Fee Study, EDUs are calculated based on the number of residents or employees ("Persons Served") generated by each land use class. For other facilities, different measures, such as number of trips, more accurately represent the benefit provided to each land use class. Table 6 below shows total existing and projected EDUs or EBUs by facility type. Notably, "Persons Served" equal Residents plus 50% of Employees, and is a customary industry practice designed to capture the reduced levels of service demanded by employees. TABLE 6 CITY OF PALO ALTO CITY EQUIVALENT DWELLING UNITS Countywide Facility Type Public Safety Facilities General Government Facilities Service Factor Persons Served Persons Served Existing EDUs/EBUs 43,597 43,597 Projected EDUs/EBUs 7,807 7,807 Total 51,404 51,404 The following sections present the reasonable relationship for benefit, impact, and rough proportionality tests for each fee element (i.e., public safety and general government) and the analysis undertaken to apportion costs for each type of facility on the Needs List. More detailed fee calculation worksheets for each type of facility are included in Appendix A. Importantly, since the level of service ("LOS") being requested for new development by City department heads is above the existing service level for certain types of facility, the cost of the new facilities has been carefully apportioned between existing and new development in the following manner: City of Palo Alto Page 15 Development Impact Fee Justification Study December 10, 2014 DAVID TAUSSIG SECTION V: METHODOLOGY USED TO fi &ASSOCIATES CALCULATE FEES 1. New development was assigned 100% of the cost for a LOS that is equivalent to the existing LOS within the City. 2. The cost of the incremental difference between the new, higher LOS being requested by the City and the existing LOS was then allocated between existing development and new development, based on the relative number of equivalent dwelling units ("EDUs") assigned to existing development and new development. City of Palo Alto Page 16 Development Impact Fee Justification Study December 10, 2014 DAVID TAUSSIG & ASSOCIATES CALCULATE FEES SECTION V: METHODOLOGY USED TO A. PUBLIC SAFETY FACILITIES The Public Safety element includes those facilities used by the City to protect life and property. Critically, there is also a need for other facilities, public safety specialty vehicles, and training stations to serve both existing and projected development. Therefore, the costs of these facilities have been allocated between existing development and new development based on their percentage of built -out EDUs. TABLE 7 PUBLIC SAFETY FACILITIES ELEMENT Identify Purpose of Fee Identify Use of Fee Demonstrate how there is a reasonable relationship between the need for the public facility, the use of the fee, and the type of development project on which the fee is imposed Public Safety Facilities Construction, acquisition and/or upgrade of Police and Fire Facilities and equipment New residential and non-residential development will generate additional residents and employees who will require additional service calls increasing the need for trained Police and Fire personnel. Buildings and vehicles used to provide these services will have to be expanded, constructed, or purchased to meet this increased demand. Thus a reasonable relationship exists between the need for Public Safety facilities and the impact of residential and non-residential development. The Public Safety fees collected from new development will be used exclusively for public safety purposes. Table 8 below identifies the facilities proposed to be funded in whole or in part with the collection of Public Safety fees. Costs are based on estimates provided by the City, as well as considerations of dedicated, off -setting revenues (as provided for the Public Safety Building and Fire Station 3 following the Infrastructure Funding Proposal approved on June 9, 2014 and the hotel tax increase approved in the most recent election). City of Palo Alto Page 17 Development Impact Fee Justification Study December 10. 2014 DAVID TAUSSIG SECTION V: METHODOLOGY USED TO & ASSOCIATES CALCULATE FEES TABLE 8 PUBLIC SAFETY FACILITIES FACILITY COSTS Public Safety Facilities Facility Cost Public Safety Building ("PSB") - Replace (44,850 square feet) $0 Fire Station 3 (Rinconada Park - built 1948) - Replace $0 Fire Station 4 (Meadow/Middlefield - built 1953) - Replace $7,500,000 BC Van (x 2) $200,000 Fire Trucks (x 2) $2,000,000 Type II I Engine (x 2) $800,000 Training Tower & Related Land Acquisition $8,000,000 Type I Engine (x 8) - 2024 $4,200,000 Ambulances (x 4) - 2022-2025 $1,300,000 Miscellaneous Upgrades (Van, Trucks, Engines, Ambulances) $8,500,000 Public Safety Revenues not yet Committed $0 TOTAL PUBLIC SAFETY FACILITIES $32,500,000 Calculation Methodology Fee amounts for this element were calculated for both residential and non- residential land uses as detailed in Appendix A. Each land use classification was assigned an EDU factor which was derived from the number of Persons Served, which again is defined as the persons per household (for residential units) and 50% of the number of employees per 1,000 building square feet of each category of non-residential development. Fire Station Improvements According to the City, it has been determined that these facilities are needed to serve new development. Currently, these facilities are generally operating at an appropriate and acceptable level of service, though less so than many of the other public safety facilities and improvements; therefore, the costs of facilities have been allocated to new development and existing development based on their percentage of their expected facility usage at build out. Consequently, 46.85% of the costs will be allocated to existing development and 53.15% of the costs will be allocated to new development. City of Palo Alto Page 18 Development Impact Fee Justification Study December 10. 2014 DAVID TAUSSIG & ASSOCIATES SECTION V: METHODOLOGY USED TO CALCULATE FEES TABLE 9 FIRE STATION IMPROVEMENTS COST ALLOCATION SUMMARY Fire Station Improvments Number of New Percentage Allocated to Facility Cost Facility Units New Development Allocated Allocated Existing Development 46.85% 0.94 $3,513,468 New Development 53.15% 1.06 $3,986,532 Public Safety Vehicles According to the City, it has been determined that these facilities are needed to serve new development. Currently, these facilities are generally operating at an appropriate and acceptable level of service; therefore, the costs of facilities have been allocated to new development and existing development based on their percentage of their expected facility usage at build out. Consequently, 69.63% of the costs will be allocated to existing development and 30.37% of the costs will be allocated to new development. TABLE 10 PUBLIC SAFETY VEHICLES COST ALLOCATION SUMMARY Public Safety Vehicles Percentage Allocated to New Development Number of New Facility Units Allocated Facility Cost11 Allocated Existing Development 69.63% 12.53 $11,836,492 New Development 30.37% 5.47 $5,163,508 Public Safety Training Tower Modernization According to the City, it has been determined that this facility modernization is needed to serve new development. Currently, this facility is operating at an appropriate and acceptable level of service; therefore, the costs of facilities have been allocated to new development and existing development based on their percentage of their expected facility usage at build out. Consequently, City of Palo Alto Page 19 Development Impact Fee Justification Study December 10, 2014 DAVID TAUSSIG & ASSOCIATES SECTION V: METHODOLOGY USED TO CALCULATE FEES 84.81% of the costs will be allocated to existing development and 15.19% of the costs will be allocated to new development. TABLE 11 PUBLIC SAFETY TRAINING TOWER MODERNIZATION COST ALLOCATION SUMMARY Public Safety Training Percentage Allocated to Tower Modernization New Development Number of New Facility Units Allocated Facility Cost Allocated Existing Development 84.81% 0.85 $6,785,057 New Development 15.19% 0.15 $1,214,943 Fee Amounts Table 12 presents a summary of the derivation of EDUs, fee amounts, and the costs financed by fees for the Public Safety Facilities on the Needs List. The details of the fee calculation are presented in Appendix A. TABLE 12 PUBLIC SAFETY FACILITIES FEE DERIVATION SUMMARY EDUs Per Unit/1,000 Fee per Unit/1,000 Land Use Type Non -Res. SF Non -Res. SF Cost Financed by Fees i Single Family Residential 1.00 $1,328 $3,388,371 Multi Family Residential 0.80 $1,062 $1,668,677 Commercial 0.56 $743 $663,499 Office/Institutional 0.75 $991 $3,614,702 Industrial 0.19 $248 $1,029,734 Total Allocation to New Development: $10,364,983 Outside Funding Responsibility: $22,135,017 Total Facilities Costs: $32,500,000 Based on the development projections in Appendix A, the fee amounts presented in Table 12 will finance 31.89% of the net costs of the Public Safety Facilities identified on the Needs List. The remaining 68.11% of the net costs of facilities will be funded through other sources. City of Palo Alto Development Impact Fee Justification Study Page 20 December 10, 2014 DAVID TAUSSIG & ASSOCIATES CALCULATE FEES SECTION V: METHODOLOGY USED TO B. GENERAL GOVERNMENT FACILITIES The General Government Facilities Element includes those facilities used by the City to provide basic governmental services and public facilities maintenance services, exclusive of public safety. Identify Purpose of Fee Identify Use of Fee Demonstrate how there is a reasonable relationship between the need for the public facility, the use of the fee, and the type of development project on which the fee is imposed TABLE 13 GENERAL GOVERNMENT FACILITIES General Government Service Facilities Modernization of City Office and Building Improvements and Replacement of Municipal Services Center. New residential and non-residential development in the City will generate additional residents and employees who will increase the demand for services, including municipal services and general government functions. Population and growth has a direct impact on the need for government services and facilities, thus a reasonable relationship exists between new development and government facilities, which will have to be acquired to meet the increased demand. Fees collected from new development will be used exclusively for the City Government Service Facilities on the Needs List. TABLE 14 GENERAL GOVERNMENT FACILITIES COST General Government Facilities Facility Cost Information Technology Upgrades $675,000 Buildings Systems Improvements $6,200,000 Civic Center Plaza Deck $16,000,000 Municipal Service Center Improvements (Immediate) $1,991,000 Municipal Services Center - Replace $60,450,000 Ventura Buildings Improvements $690,000 General Government Revenues not yet Committed $0 TOTAL GENERAL GOVERNMENT FACILITIES $86,006,000 City of Palo Alto Development Impact Fee Justification Study Page 21 December 10, 2014 DAVID TAUSSIG SECTION V: METHODOLOGY USED TO & ASSOCIATES CALCULATE FEES Calculation Methodology Fee amounts for this element were calculated for both residential and non-residential land uses as detailed in Appendix A. Each land use classification was assigned an EDU factor which was derived from the number of Persons Served, which again is defined as the persons per household (for residential units) and 50% of the number of employees per 1,000 building square feet of each category of non-residential development. CITY OFFICE AND BUILDING IMPROVEMENTS According to the City, it has been determined that these facilities are needed to serve new development. Currently, these facilities are operating at an appropriate and acceptable level of service; therefore, the costs of facilities have been allocated to new development and existing development based on their percentage of their expected facility usage at build out. Consequently, 84.81% of the costs will be allocated to existing development and 15.19% of the costs will be allocated to new development as presented in Table 15 below. TABLE 15 CITY OFFICE AND BUILDING IMPROVEMENTS COST ALLOCATION SUMMARY City Office and Building Improvements Existing Development New Development Total Percentage Allocated to Total Square Facility Cost New Development Feet Allocated Allocated 84.81% 15.19% 100% 18,219 3,262 21,481 $21,674,865 $3,881,135 $25,556,000 Municipal Services Center Replacement According to the City, it has been determined that these facilities are needed to serve new development. Currently, these facilities are operating at an appropriate and acceptable level of service; therefore, the costs of facilities have been allocated to new development and existing development based on their percentage of their expected facility usage at build out. Consequently, 84.81% of the costs will be allocated to existing development and 15.19% of the costs will be allocated to new development as presented in Table 16 below. City of Palo Alto Page 22 Development Impact Fee Justification Study December 10, 2014 DAVID TAUSSIG & ASSOCIATES SECTION V: METHODOLOGY USED TO CALCULATE FEES TABLE 16 MUNICIPAL SERVICES CENTER REPLACEMENT COST ALLOCATION SUMMARY Number of New Municipal Services Center Percentage Allocated to Replacement New Development Facility Units Allocated Facility Cost Allocated Existing Development New Development 84.81% 15.19% 70,395 12,605 $51,269,587 $9,180,413 Total 100% 83,000 $60,450,000 Fee Amounts Table 17 presents a summary of the derivation of EDUs, fee amounts and the costs financed by fees for the general government facilities on the Needs List. The details of the fee calculation are presented in Appendix A. TABLE 17 GENERAL GOVERNMENT FACILITIES FEE DERIVATION SUMMARY Land Use Type EDUs Per Unit/1,000 Non -Res. SF Fee per Unit/1,000 Non -Res. SF Cost Financed by Fees Single Family Residential 1.00 $1,673 $4,269,893 Multi Family Residential 0.80 $1,339 $2,102,803 Commercial 0.56 $936 $836,116 Office/Institutional 0.75 $1,249 $4,555,107 Industrial 0.19 $312 $1,297,630 Total Allocation to New Development: $13,061,548 Outside Funding Responsibility: $72,944,452 Total Facilities Costs: $86,006,000 Based on the development projections in Appendix A, the fee amounts presented in Table 17 will finance 15.19% of the net costs of the General Government Facilities identified on the Needs List. The remaining 84.81% of the net costs of facilities will be funded through other sources. City of Palo Alto Page 23 Development Impact Fee Justification Study December 10, 2014 DAVID TAUSSIG & ASSOCIATES SECTION VI: SUMMARY OF FEES The total fee amounts to finance new development's share of the costs of facilities in the Needs Lists are summarized in Tables 18 & 19 below. TABLE 18 DEVELOPMENT IMPACT FEE SUMMARY City Facilities Residential Non -Residential Single Family Multi -Family Commercial Office/Institutional Industrial Public Safety Facilities General Government Facilities $3,388,371 $4,269,893 $1,668,677 $2,102,803 $663,499 $836,116 $3,614,702 $4,555,107 $1,029,734 $1,297,630 Total $7,658,264 $3,771,480 $1,499,615 $8,169,808 $2,327,364 TABLE 19 DEVELOPMENT IMPACT FEE SUMMARY City Facilities Residential (Per Unit) Non -Residential (Per 1,000 BSF) Single Family Multi -Family Commercial Office/Institutional Industrial Public Safety Facilities General Government Facilities $1,328 $1,673 $1,062 $1,339 $743 $936 $991 $1,249 $248 $312 Total $3,001 $2,401 $1,680 $2,239 $560 http://Iocalhost:9010/resources/Clients/Palo Alto/AB 1600 - 2012/AB 1600 Update/DIFReport DRAFT v.11A.docx City of Palo Alto Page 24 Development Impact Fee Justification Study December 10, 2014 Appendix A Fee Derivation Worksheets City of Palo Alto Public Safety Fee Calculation 1. Inventory of Existing Facilities Facility Type Public Safety Building (Replacement) Fire Stations (Modernized) Vehicles (Van, Trucks, Engines, Ambulances) Training Tower (Modernized) Public Safety Facilities Quantity Facility Units O Square Feet 5 Integrated Facility 18 No. of Vehicles 0 Integrated Facility NA II. Existing EDU Calculation NA Land Use Type Single Family Residential Multi Family Residential Commercial Office/Institutional Industrial Total [a] [d] Number of [b] [c] Total Units/ Persons Served per Unit/ EDUs per Unit/ Number of EDUs Non -Res. 1,000 SF 1,000 Non -Res. SF Per 1,000 Non -Res. SF [a]"[c] 17,614 10,843 3,887 15,883 18,099 2.68 2.12 1.50 2.00 0.50 1.00 0.79 0.56 0.75 0.19 17,614 8,577 2,176 11,853 3,377 43,597 III. Existing Facility Standard Facility Type Public Safety Building (Replacement) Fire Stations (Modernized) Vehicles (Van, Trucks, Engines, Ambulances) Training Tower (Modernized) Public Safety Facilities IV. Future EDU Calculation Quantity Facility Units O Square Feet 5 Integrated Facility 18 No. of Vehicles O Integrated Facility NA NA Quantity per 1,000 EDU's 0 0.11 0.41 0 NA Land Use Type Single Family Residential Multi Family Residential Commercial Office/Institutional Industrial Total [a] [b] [d] Number of Residents per Unit/ [c] Total Units/ Employees per EDUs per Number of EDUs Non -Res. 1,000 SF [1] Non -Res. 1,000 SF [2] Unit/per 1,000 Non -Res. SF [a]*[c] 2,552 1,571 893 3,648 4,157 2.68 2.12 1.50 2.00 0.50 1.00 0.80 0.56 0.75 0.19 2,552 1,257 500 2,722 776 7,807 V. Proposed Inventory, Cost, and Service Standard Facility Type Public Safety Building (Replacement) Fire Stations (Modernized) Vehicles (Van, Trucks, Engines, Ambulances) Training Tower (Modernized) Offsetting Revenues Total Cost of Public Safety Facilities Quantity Facility Units 44,850 Square Feet 2 Integrated Facility 18 No. of Vehicles 1 Integrated Facility VI. Allocation of Public Safety Facilities to Existing & New Development (based on total EDUs) A.1 Public Safety Building Improvements [a] Existing SF Per 1,000 EDU's Quantity Facility Cost per 1,000 EDU's $0 5,745.17 $7,500,000 0.26 $17,000,000 2.31 $8,000,000 0.13 $0 $32,500,000 0.00 [b] [c] [d] [e] [t] [gl Total Future SF Allocated 100% Proposed Service SF per EDU SF Beyond Existing Total Proposed EDU's To New Development [3] Standard Per Beyond Existing Service Standard [4] New SF [gib] 1,000 EDU's [d] -[a] [b]'[e] [c]+[f] 7,806.56 0.00 5,745.17 5,745.17 44,850.00 44,850.00 City of Palo Alto Public Safety Fee Calculation A.2 SF Beyond Existing Service Standard Split Between New and Existing, plus Facility Units allocated 100% to New Development Facility Type Existing New Development Total Facility Units Split Facility Units Number of Percentage of Total Between New and Existing Allocated 100% To Total Facility Units EDU's EDU's Development New Development Allocated 43,597 7,807 84.81 % 15.19% 38,038.73 6,811.27 NA 38,038.73 0.00 6,811.27 51,404 100.00% 44,850.00 44,850.00 A.3 Cost Allocated Between Existing and New Development Facility Type Existing New Development Total Total Number of SF Percentage of Cost Allocated Facility Cost 38,039 6,811 84.81% 15.19% $0 $0 $0 44,850 100.00% B.1 Fire Station Improvements [a] Existing Facility Units Per 1,000 EDU's [b] [c] Total Future Facility Units Allocated 100% EDU's To New Development [3] [a]*[b] [d] [e] [1] [g] Proposed Service Facility Units per EDU Facility Units Beyond Total Proposed Standard Per Beyond Existing Existing Service Standard [4] New Facility Units 1,000 EDU's [d] -[a] [b]*[e] [c]+[f] 0.11 7,806.56 0.90 0.26 0.14 1.10 2.00 B.2 Facility Units Beyond Existing Service Standard Split Between New and Existing, plus Facility Units allocated 100% to New Development Facility Type Existing New Development Total Facility Units Split Number of Percentage of Total Between New and Existing EDU's EDU's Development Facility Units Allocated 100% To Total Facility Units New Development Allocated 43,597 7,807 84.81% 15.19% 0.94 0.17 0.90 1.10 NA 0.94 1.06 2.00 51,404 100.00% B.3 Cost Allocated Between Existing and New Development Facility Type Existing New Development Total Total Number of New Facility Units Percentage of Cost Allocated Facility Cost 0.94 1.06 2.00 46.85% 53.15% $3,513,468 $3,986,532 $7,500,000 100.00% C.1 Public Safety Vehicles [a] Existing Facility Units Per 1,000 EDU's [b] [c] Total Future Facility Units Allocated 100% EDU's To New Development [3] [a]*[b] [d] [el [f] [g] Proposed Service Facility Units per EDU Facility Units Beyond Total Proposed Standard Per Beyond Existing Existing Service Standard [4] New Facility Units 1,000 EDU's [d] -[a] [b]*[e] [c]+[f] 0.41 7,806.56 3.22 2.31 1.89 14.78 18.00 C.2 Facility Units Beyond Existing Service Standard Split Between New and Existing, plus Facility Units allocated 100% to New Development Facility Units Split Facility Units Number of Percentage of Total Between New and Existing Allocated 100% To Total Facility Units EDU's EDU's Development New Development Allocated Facility Type Existing New Development Total 43,597 84.81 % 7,807 15.19% 12.53 NA 12.53 2.24 3.22 5.47 51,404 100.00% 14.78 18.00 City of Palo Alto Public Safety Fee Calculation C.3 Cost Allocated Between Existing and New Development Facility Type Existing New Development Total Total Number of Facility Units Percentage of Cost Allocated Facility Cost $11,836,492 12.53 5.47 69.63% 30.37% $5,163,508 18.00 100.00% $17,000,000 D.1 Public Safety Training Tower (Modernized) [a] Existing Facility Units Per 1,000 EDU's [b] [c] Total Future Facility Units Allocated 100% EDU's To New Development [3] [a]"[b] [d] [e] [1] [g] Proposed Service Facility Units per EDU Facility Units Beyond Total Proposed Standard Per Beyond Existing Existing Service Standard [4] New Facility Units 1,000 EDU's [d] -[a] [b]*[e] [c]+[f] 0.00 7,806.56 0.00 0.13 0.13 1.00 1.00 D.2 Facility Units Beyond Existing Service Standard Split Between New and Existing, plus Facility Units allocated 100% to New Development Facility Type Existing New Development Total Facility Units Split Number of Percentage of Total Between New and Existing EDU's EDU's Development Facility Units Allocated 100% To Total Facility Units New Development Allocated 43,597 84.81% 0.85 NA 0.85 7,807 15.19% 0.15 0.00 0.15 51,404 100.00% 1.00 1.00 D.3 Cost Allocated Between Existing and New Development Facility Type Existing New Development Total Total Number of Facility Units 0.85 0.15 1.00 Percentage of Cost Allocated 84.81% 15.19% 100.00% Facility Cost $6,785,057 $1,214.943 $8,000,000 VII. Summary Cost Data Section VI E.1 Cost Allocated Facility Type to New Development Total Future EDU's Cost Per EDU Total Public Safety Facilities Offsetting Revenues $10,364,983 $0 $10,364,983 7,807 $1,327.73 7,807 $0.00 $1,327.73 VIII. Development Impact Fee per Unit or per 1,000 Non -Res. SF Land Use Type EDUs Per Unit/1,000 Non -Res. SF Fees Per Unit/1,000 Non -Res. SF Number of Units/ Non -Res. 1,000 SF Cost Financed by DIF Single Family Residential 1.00 $1,328 2,552 $3,388,371 Multi Family Residential 0.80 $1,062 1,571 $1,668,677 Commercial 0.56 $743 893 $663,499 Office/Institutional 0.75 $991 3,648 $3,614,702 Industrial 0.19 $248 4,157 $1,029,734 Total Allocated to New Development $10,364,983 Outside Funding Responsibility $22,135,017 Total Cost of Public Safety Facilities $32,500,000 Niles: [1] Expected Housing Units based on data provided by the City of Palo Alto's Planning Department, confirmed by ABAG. [2] Average Household She Based on information obtained from the California Department of Finance (2013). City, and U.S. Census Bureau. [3] Allocates 100% to new development square feet or equipment necessary to fund existing service standard for new residents. [4] Denotes proposed service standard in excess to that currently provided to existing residents. City of Palo Alto General Government Fee Calculation I. Inventory of Existing Facilities Facility Type City Office & Building Improvements (Modernized) Municipal Services Center Replacement City Office & Building Improvements Quantity Facility Units 0 0 Square Feet Square Feet NA NA II. Existing EDU Calculation Land Use Type Single Family Residential Multi Family Residential Commercial Office/Institutional Industrial Total [a] Number of [b] Units/ Persons Served per Unit/ Non -Res. 1,000 SF 1,000 Non -Res. SF [d] [c] Total EDUs per Unit/ Number of EDUs Per 1,000 Non -Res. SF rap[c] 17,614 10,843 3,887 15,883 18,099 2.68 2.12 1.50 2.00 0.50 1.00 0.79 0.56 0.75 0.19 17,614 8,577 2,176 11,853 3,377 43,597 III. Existing Facility Standard Facility Type City Office & Building Improvements (Modernized) Municipal Services Center Replacement City Office & Building Improvements Quantity Quantity Facility Units per 1,000 EDU's IV. Future EDU Calculation 0 0 NA Square Feet Square Feet NA 0 0 NA Land Use Type Single Family Residential Multi Family Residential Commercial Office/Institutional Industrial Total [a] [b] [d] Number of Residents per Unit/ [c] Total Units/ Employees per EDUs per Number of EDUs Non -Res. 1,000 SF [1] Non -Res. 1,000 SF [2] Unit/per 1,000 Non -Res. SF [a]`[c] 2,552 1,571 893 3,648 4,157 2.68 2.12 1.50 2.00 0.50 1.00 0.80 0.56 0.75 0.19 2,552 1,257 500 2,722 776 7,807 V. Proposed Inventory, Cost, and Service Standard Facility Type City Office & Building Improvements (Modernized) Municipal Services Center Replacement Offsetting Revenues Total Cost of General Government Facilities Quantity 21,481 83,000 Facility Units Square Feet Square Feet Quantity Facility Cost per 1,000 EDU's $25,556,000 $60,450,000 $0 $86,006,000 2,751.66 10,632.08 VI. Allocation of General Government Facilities to Existing & New Development (based on total EDUs) A.1 City Office & Building Improvements [a] Existing SF Per 1,000 EDU's 0.00 [b] [c] Total Future SF Allocated 100% EDU's To New Development [3] [a]'@] 7,806.56 0.00 [d] [el [11 [g] Proposed Service SF per EDU SF Beyond Existing Total Proposed Standard Per Beyond Existing Service Standard [4] New SF 1,000 EDU's [d] -[a] [b]•[e] [c]+[f] 2,751.66 2,751.66 21,481.00 21,481.00 A.2 SF Beyond Existing Service Standard Split Between New and Existing, plus SF allocated 100% to New Development Facility Type Existing New Development Total Number of EDU's Percentage of Total EDU's Facility Units Split Facility Units Between New and Existing Allocated 100% To Total Facility Units Development New Development Allocated 43,597 84.81 18,218.73 NA 18,218.73 7,807 15.19% 3,262.27 0.00 3,262.27 51,404 100.00% 21,481.00 21,481.00 City of Palo Alto General Government Fee Calculation A.3 Cost Allocated Between Existing and New Development Facility Type Existing New Development Total Total Number of SF Percentage of Cost Allocated Facility Cost $21,674,865 18,218.73 3,262.27 84.81% 15.19% $3,881,135 21,481.00 100.00% $25,556,000 8.1 Municipal Services Center Replacement [al Existing SF Per 1,000 EDU's [b] [c] Total Future SF Allocated 100% EDU's To New Development [3] [a]*[b] [dl [e] [1] [gl Proposed Service SF per EDU SF Beyond Existing Total Proposed Standard Per Beyond Existing Service Standard [4] New SF 1,000 EDU's [dl -[a] [b]*[e] [c]+[f] 0.00 7,806.56 0.00 10,632.08 10,632.08 83,000.00 83,000.00 B.2 Facility Units Beyond Existing Service Standard Split Between New and Existing, plus SF allocated 100% to New Development Facility Type Existing New Development Total Number of EDU's Percentage of Total EDU's Facility Units Split Facility Units Between New and Existing Allocated 100% To Total Facility Units Development New Development Allocated 43,597 7,807 84.81% 15.19% 70,394.97 12,605.03 83,000.00 NA 70,394.97 0.00 12,605.03 51,404 100.00% 83,000.00 B.3 Cost Allocated Between Existing and New Development Facility Type Existing New Development Total Total Number of New Facility Units Percentage of Cost Allocated Facility Cost $51,269,587 70,394.97 12,605.03 83,000.00 84.81% 15.19% $9,180,413 100.00% $60,450,000 VII. Summary Cost Data Section VI C.1 Cost Allocated Facility Type to New Development City Office & Building Improvements Offsetting Revenues Total $13,061,548 so $13,061,548 Total Cost Per Future EDU's EDU 7,807 7,807 $1,673.15 $0.00 $1,673.15 VIII. Development Impact Fee per Unit or per 1,000 Non -Res. SF Land Use Type EDUs Per Unit/1,000 Non -Res. SF Fees Per Unit/1,000 Non -Res. SF Number of Units/ Non -Res. 1,000 SF Cost Financed by DIF Single Family Residential 1.00 $1,673 2,552 $4,269,893 Multi Family Residential 0.80 $1,339 1,571 $2,102,803 Commercial 0.56 $936 893 $836,116 Office/Institutional 0.75 $1,249 3,648 $4,555,107 Industrial 0.19 $312 4,157 $1,297,630 Total Allocated to New Development $13,061,548 Outside Funding Responsibility $72,944,452 Total Cost of General Government Facilities $86,006,000 Noes: [1] Expected Housing Units based on data provided by the City of Palo Alto's Planning Department, confirmed by ABAG. [2] Average Household Slae Based on information obtained from the Cadbmla Department of Finance (2013), City, and U.S. Census Bureau. [3] Allocates 100% to new development square feet or equipment necessary to fund existing service standard for new residents. [4] Denotes proposed service standard in excess to that currently provided to eksting residents. City of Palo Alto EBU & EDU Calculation Year to Build -Out (2035) Existing EDU Calculation Service Factor (Residents and Employees Number of Land Use Type Persons Served * Single Family Residential Multi Family Residential Office/Institutional Commercial Industrial Residents per Unit**/ Persons Served per EDUs per Unit/ Total 1,000 Non -Res. SF per 1,000 Non -Res. SF Number of EDUs 47,206 22,987 31,767 5,831 9,050 2.68 2.12 2.00 1.50 0.50 1.00 0.80 0.75 0.56 0.19 17,614 8,674 11,853 2,176 3,377 43,694 Total 116,840 * Source: David Taussig & Associates; City of Palo Alto Comprehensive Plan, U.S. Census Bureau QuickFacts (American Community Survey), Palo Alto Zoning Ordinance. ** Persons Served = Residents plus 50% of Employees, customary industry practice designed to capture the reduced levels of service demanded by employees. Future EDU Calculation Service Factor (Future Residents and Employees) Number of Land Use Type Persons Served * Single Family Residential 6,839 2.68 1.00 2,552 Multi Family Residential 3,331 2.12 0.80 1,257 Office/Institutional 7,296 2.00 0.75 2,722 Commercial 1,339 1.50 0.56 500 Industrial 2,079 0.50 0.19 776 Residents per Unit**/ Persons Served per EDUs per Unit/ 1,000 Non -Res. SF per 1,000 Non -Res. SF Number of EDUs Total Total 20,884 7,807 * Source: David Taussig & Associates; City of Palo Alto Comprehensive Plan, U.S. Census Bureau QuickFacts (American Community Survey), Palo Alto Zoning Ordinance. ** Persons Served = Residents plus 50% of Employees, customary industry practice designed to capture the reduced levels of service demanded by employees. TAUSS IG USSIG 1, ALDAN/ID 81 ASSOCIATES Public Finance Public Private Partnerships Urban Economics 2250 Hyde Street 5th Floor San Francisco, CA 94109 Phone (800) 969-4382 ATTACHMENT D NOT YET APPROVED Ordinance No. Ordinance of the Council of the City of Palo Alto Amending Chapter 16.58 of the Palo Alto Municipal Code Establishing a Public Safety Facility Development Fee and a General Government Facility Development Fee The Council of the City of Palo Alto does ORDAIN as follows: SECTION 1. Findings. The City Council finds and declares that: (a) Section 66000 et seq. of the California Government Code authorizes the City to levy fees upon development projects to defray all or a portion of the costs of public improvements and public services related to the development project. Such fees are commonly known as "development impact fees." (b) The City currently imposes development impact fees to fund a portion of the costs of park, community center, and library facilities that will serve new developments. (c) New developments also are served by public safety facilities and general government facilities. (d) The City Council desires to impose development impact fees to fund a portion of the costs of such facilities. SECTION 2. Chapter 16.58 of the Municipal Code, which is currently captioned as "Chapter 16.58 Development Impact Fees for Parks, Community Centers and Libraries" is recaptioned as "Chapter 16.58 Development Impact Fees" SECTION 3. Chapter 16.58 of the Palo Alto Municipal Code is hereby amended by adding Section 16.58.080 to read as follows: "Section 16.58.080 — Public Safety and Government Facility Fees (a) In addition to the fees established by Section 16.58.020, the following fees are hereby established and shall be imposed as a condition of the approval of, or permit for, any new development, whether residential or nonresidential, except as otherwise exempted by this chapter: (i) a Public Safety Facility Development Fee, to fund police and fire facilities (including fire apparatus and vehicles) and (ii) a General Government Facility Development Fee, to fund facilities associated with municipal administration. (b) The fees imposed by this section shall be charged in in an amount as set forth in the municipal fee schedule. 1 141208 jb 0131291 NOT YET APPROVED (c) A Public Safety Facility Development Fee Fund and a General Government Facility Development Fee Fund are hereby established. Such funds shall be administered in connection with the fees imposed by this section in the manner set forth in Section 16.58.050. (d) Any fee imposed by this section shall be effective on the sixty-first day following the adoption of an ordinance or resolution amending the municipal fee schedule to include a rate for that fee." SECTION 4. If any provision or clause of this ordinance or the application thereof to any person or circumstance is held to be invalid by any court of competent jurisdiction, such invalidity shall not affect any other provision or clause of this ordinance, and to that end, the provisions and clauses of this ordinance are severable. 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 APPROVED AS TO FORM: Mayor APPROVED: Senior Assistant City Attorney City Manager Director of Planning & Community Environment Director of Administrative Services 2 141208 jb 0131291 CITY 0 - PALO ALTO City of Palo Alto (ID # 5403) City Council Staff Report Report Type: Consent Calendar Meeting Date: 12/15/2014 Summary Title: Resolution Extending Truck Route Ordinance Exception Title: Adoption of a Resolution Amending Resolution No. 9296, Adopted November 13, 2012, to Extend Statutory Exception for Soil Transfers by Truck on Oregon Expressway until September 30, 2015 From: City Manager Lead Department: Public Works Recommendation Staff recommends that Council adopt the attached resolution, extending an exception to Chapter 10.48 [Trucks and Truck Routes] of the Palo Alto Municipal Code for the limited purpose of allowing the transfer of soil from Stanford University along Oregon Expressway to the Palo Alto Municipal Golf Course and adjacent areas (Attachment A). Background Both the Golf Course Reconfiguration Project and the related San Francisquito Creek Joint Powers Authority (JPA) flood control project require a substantial amount of suitable imported fill material. Soil is needed to raise the level of the golf course and to construct the new flood control levees. On June 17, 2013, Council awarded a contract to Don Tucker & Son for the importation and stockpiling of soil for use on the Golf Course Reconfiguration Project and the JPA's flood control project. The contractor is paying the City for the right to stockpile up to 364,000 cubic yards for the Golf Course Project and 127,000 cubic yards for the JPA Project at a soil stockpile site on the west side of the Golf Course. The soil importation process is expected to generate up to $1.3 million that will be used to directly offset the cost of the golf course construction work. There has been and continues to be a substantial amount of construction occurring at the Stanford University campus that is generating excess soil from basement excavations. The juxtaposition of the Golf Course Reconfiguration Project and the Stanford City of Palo Alto Page 1 construction activity provides a unique opportunity to share the soil resources in a way that will benefit both parties. The shortest route between Stanford and the project site is Oregon Expressway. Although Oregon Expressway is not a standard truck route, Council adopted a resolution on November 13, 2012, authorizing the use of Oregon Expressway as a truck route for the limited purpose of transporting soil from the Stanford campus to the Golf Course. Under the terms of the original resolution, the special truck route designation for Oregon Expressway was due to expire on June 30, 2014. Council approved another resolution on June 23, 2014, extending the special truck route designation through December 31, 2014. Discussion Don Tucker continues to utilize this special truck route provision to facilitate the import of soil to the Golf Course. As a result of the cost savings generated by this shorter haul route, Don Tucker is paying the City $0.50 per cubic yard more for Stanford soil imported via Oregon Expressway. Don Tucker has imported approximately 260,000 cubic yards of soil to the Golf Course to -date, much of it via the Oregon Expressway haul route. Because additional soil will be required to complete the two projects, he will need to continue to import and place soil on the Golf Course during calendar year 2015. Because it is advantageous for the City to encourage the transport of soil from Stanford sites beyond December 31, 2014, staff recommends that Council adopt the attached resolution, extending the term of the Oregon Expressway truck route designation through September 30, 2015. Environmental Review The environmental impacts of soil importation to the Palo Alto Municipal Golf Course for inclusion in the Golf Course Reconfiguration Project and the San Francisquito Creek JPA flood control project were addressed in the environmental documents prepared for the respective projects. An Environmental Impact Report (EIR) for the San Francisquito Creek Flood Reduction, Ecosystem Restoration, and Recreation Project, San Francisco Bay to Highway 101 project was certified by the San Francisquito Creek Joint Powers Authority on October 25, 2012. An EIR for the Palo Alto Municipal Golf Course Reconfiguration Project was certified by Council on February 3, 2014. Attachments: • A- Truck Route Resolution (PDF) City of Palo Alto Page 2 Not Yet Approved Resolution No. Resolution of the Council of the City of Palo Alto Amending Resolution Number 9296, Section 2, Extending the Term of an Exception to Chapter 10.48 [Trucks and Truck Routes] of the Palo Alto Municipal Code For the Limited Purpose of Allowing a Transfer of Soil from the Stanford University Campus to the Palo Alto Municipal Golf Course and Adjacent Areas The Council of the City of Palo Alto RESOLVES, as follows: SECTION 1. The Council adopted Resolution Number 9296 on November 13, 2012. The adopted resolution is attached as "Attachment A." This resolution pertains to the permitted time, within which the transfer of soils from the Stanford University campus to the San Francisquito Creek Joint Powers Authority's regional flood control project and the Palo Alto Municipal Golf Course reconfiguration project (the "Projects") may occur, consistent with Palo Alto Municipal Code section 10.48.090(c). SECTION 2. The Council adopted Resolution Number 9441 on June 23, 2014, extending the effective date of Resolution Number 9296 through December 31, 2014. SECTION 3. Section 2 of Resolution Number 9296 is hereby amended in its entirety to read, as follows: "The Council hereby approves the following limited exception to the application of Chapter 10.48 (Truck and Truck Routes) to the Projects: Trucks depositing soil from construction at the Stanford University campus that are transported to the Palo Alto Municipal Golf Course and immediately adjacent areas for use in the construction of the San Francisquito Creek levee project or for use in the Golf Course reconfiguration project may accomplish such deliveries by traveling on Oregon Expressway. Any such trips shall take place between 9:00 AM and 4:00 PM. This exception shall sunset on September 30, 2015." // // /1 // // /1 141209 mf 00710515 Not Yet Approved SECTION 4. An Environmental Impact Report for the San Francisquito Creek Flood Reduction, Ecosystem Restoration, and Recreation Project, San Francisco Bay to Highway 101 project was certified by the San Francisquito Creek Joint Powers Authority on October 25, 2012. An Environmental Impact Report for the Palo Alto Municipal Golf Course Reconfiguration Project was certified by Council on February 3, 2014. INTRODUCED AND PASSED: AYES: NOES: ABSENT: ABSTENTIONS: ATTEST: City Clerk Mayor APPROVED AS TO FORM: APPROVED: Senior Asst. City Attorney City Manager Director of Public Works 141209 mf 00710515 Resolution No. 9296 Resolution of the Council of the City of Palo Authorizing an Exception to Chapter 10.48 [Trucks and Truck Routes] of the Palo Alto Municipal Code For the Limited Purpose of Allowing a Transfer of Soil from the Stanford University Medical Center Construction Project to the Palo Alto Golf Course and Adjacent Areas The Council of the City of Palo Alto RESOLVES as follows: SECTION 1. Findings. A. There is a unique opportunity to transfer soil from the Stanford University Medical Center project to the San Francisquito Creek JPA regional flood control project and/or the Palo Alto Golf Course reconfiguration and playing fields project. B. John Arrillaga, a local developer, has offered to transport soil from the SUMC project to the Palo Alto Golf Course for the flood control project and later use at the golf course and possible future playing fields at no cost to the City or the SFCJPA. C. This local transfer will significantly reduce greenhouse gases, especially if trucks are permitted to travel on Oregon Expressway, which is the shortest vehicle route between the SUMC project site and the flood control project site. D. The Council desires to make a limited exception to Palo Alto Municipal Code Section 10.48.090. SECTION 2. Limited Exception to Palo Alto Municipal Code Chapter 10.48 for Flood Control Project. The City Council hereby approves the following exception to the provisions of Chapter 10.48 (Trucks and Truck Routes): Trucks depositing soil from construction at the Stanford University campus at the Palo Alto Golf Course and immediately adjacent areas for use in the construction of the San Francisquito Creek levee project or for use in the Golf Course re- configuration project or the Palo Alto Playing Fields and landscape buffer projects may accomplish such deliveries by traveling on Oregon Expressway. Any such trips shall take place between 9 a.m. and 4 p.m. This exception shall sunset on June 30, 2014. /1 121114 jb 0130994 1 APPROVED AS TO FORM: Senior Asst. City Attorney SECTION 3. An EIR for the San Francisquito Creek Flood Reduction,Ecosystem Restoration, and Recreation Project, San Francisco Bay to Highway 101 project was certified by the San Francisquito Creek Joint Powers Authority on October 25, 2012. INTRODUCED AND PASSED: November 13, 2012 AYES: BURT, ESPINOSA, HOLMAN, PRICE, SCHARFF, SCHMID, SHEPHERD NOES: ABSENT: ABSTENTIONS: KLEIN, YEN APPROVED: Mayor City Direc r o Public Works 121114A 0130994 2 CITY OF PALO ALTO CITY OF PALO ALTO OFFICE OF THE CITY ATTORNEY December 15, 2014 The Honorable City Council Palo Alto, California Request for Authorization to Increase Existing Legal Services Agreements with the Law Firms of: (1) Ginn & Crosby, LLP, by an Additional $50,000 for Legal Services Relating to Construction of the Mitchell Park Library and Community Center for a Total Not to Exceed Amount of $250,000; and (2) Musick Peeler & Garrett, LLP, by an Additional $20,000 for Palo Alto Baylands Golf Course Reconfiguration Project and the San Francisquito Creek Flood Control Project for a total Not to Exceed Amount of $85,000 GINN & CROSBY: In November 2012, the City retained Ginn & Crosby to provide consultation and advice relating to construction issues arising at the Mitchell Park Library and Community Center project. The initial contract was amended to bring the total contract not to exceed amount to $65,000, and again to bring the total not to exceed amount to $200,000. Additional funding is needed. The Office of the City Attorney requests authorization to amend the existing contract to add an additional $50,000 for a total contract not to exceed amount of $250,000. Funding for this contract amendment does not require additional budgetary authority as it can be accommodated within the Mitchell Park Library and Community Center New Construction (PE -09006) Capital Improvement Project budget for FY 2015. MUSICK PEELER & GARRETT: In March of 2014, the City retained the Law Firm Musick, Peeler & Garrett, LLP for legal services relating to the Palo Alto Baylands Golf Course Reconfiguration Project and the San Francisquito Creek Flood Control Project in the amount of $65,000. Additional funding is needed. The City Attorney's Office requests authorization to amend the agreement to increase compensation under the agreement by an additional $20,000. This amendment would bring the not to exceed amount to $85,000. Funding for this contract amendment does not require additional budgetary authority as it can be accommodated within the Office of the City Attorney's budget for FY 2015. Department Head: Molly Stump, City Attorney Page 2 CITY OF PALO ALTO City of Palo Alto (ID # 5401) City Council Staff Report Report Type: Consent Calendar Meeting Date: 12/15/2014 Summary Title: First Amendment to Lease with ADA's Cafe Title: Adoption of First Amendment to the Lease with ADA's Cafe and to Modify the Term and Add $87,356 to Reimburse Tenant for Expenses Related to Completion of Mitchell Park Library and Community Center From: City Manager Lead Department: Administrative Services Recommendation Staff recommends that Council approve: 1. The attached Amendment (Attachment A) to the Lease between the City of Palo Alto and Ada's Cafe to pay out and reimburse Ada's Cafe for additional expenses that were incurred as the result of delays in construction for the Cafe space at the new Mitchell Park Library and Community Center. 2. The related Budget Amendment Ordinance in the General Fund in the amount of $87,356 (Attachment B). Executive summary On March 21, 2012, a five (5) year lease between the City and Ada's Cafe for 533 square foot space at the proposed Mitchell Park Library and Community Center (MPLCC or Project) commenced. The existing lease requires a monthly rent of $650. Since 2010, the City has been working diligently to complete the project for the new Library and Community Center at Mitchell Park. The project was initially scheduled to be completed in the fall of 2012; however project difficulties resulted in substantial delays. MPLCC had a grand opening on December 6, 2014. Ada's Cafe relied on the projected project schedule to open and operate the Cafe. Due to delays in the construction and delivery of the premises, it incurred unplanned expenses. Ada's is requesting reimbursement of $87,356 for expenses incurred at the MPLCC and for premature rental of a commercial kitchen and the security deposit. City of Palo Alto Page 1 It should be noted that the cafe at Mitchell Park is an integral component to the library and community center concept and Ada's is already a destination and complement to Mitchell Park. Without contracting out this service, the City would need to consider funding this directly or having no cafe. Ada's not only provides this cafe but their business model and non-profit purpose includes an important social and community value component in providing meaningful work opportunities for developmentally disabled young adults. Background The Mitchell Park Library and Community Center project (Project or MPLCC) was designed to include a 533 square foot cafe space. It has been the intent of the City to seek an outside operator for the cafe. Ada's Cafe was unanimously selected as the finalist through a competitive solicitation process in December of 2011. The attached Lease Agreement (Attachment C) was negotiated and approved by the City Council. The Mitchell Park Library and Community Center was scheduled to open in the summer or fall of 2012. The intent of the City was to work together with the cafe operator to ensure that the cafe opened concurrently with the new library. Construction of the new 56,000 square foot Mitchell Park Library & Community Center began in September 2010. The Project Contract called for completion to take place in 20 months. The project ultimately required_more than twice that time for completion. The construction problems for the main project delayed delivery of the cafe premises to Ada's Cafe. The delays caused an increase in construction cost and forced Ada's to make alternative plan while waiting for the delivery of the premises and completion of the warm shell for the Cafe space. Discussion Ada's Mission and Operation After 25 years of experience in catering, event planning and fundraising, Ada's Cafe was created by Kathleen Foley -Hughes in 2008 as a 501(c)(3) corporation. They strive to manage their company, and the new opportunity at the Mitchell Park Cafe through the "Three C's": Commercial Success, Community Values, and Compassionate Employment. Ada's concept is to operate a successful cafe by cooking and selling quality food and snacks while providing jobs and job training for disabled workers and those who assist the disabled in its business. Their unique concept of matching compassionate employees with disabled workers while focusing on quality food and customer service has garnered them significant support in the community, and even a notice by the White House Office of Public Engagement. Through their proposal it was very clear to City Staff that Ada's Cafe is making a significant investment in time, talent, and funds to make the cafe a commercial, environmental, and social services success. City of Palo Alto Page 2 The lease agreement includes a separate arrangement for shared use of the catering kitchen at Mitchell Park at early hours and subject to City agreement. Ada's will pay $650 per month for the cafe space, and $250 per month for the shared use of the catering kitchen. Ada's agreed to pledge up to $150,000 to pay their share of the tenant improvements proposed as part of their design/ build out of the cafe space, including adding equipment, machines, display cases, design features, etc. Ada's intends to work closely through regular meetings with Community Service and Library staff to ensure that the Cafe offers programs, menu items, and activities that relate to or enhance Library and Community Services programming. Also, Ada's will work together with staff to ensure a clean, safe, and welcoming environment, especially for youth and teens. Ada's concept of a balance between a viable non-profit business model and clear public benefit is designed to serve the general public interest. Their commitment to sustainable practices in waste disposal and food sourcing is also an important factor for staff, as is their willingness to work with City staff to ensure that they are creatively enhancing the other uses at the Center, and providing a welcoming place for all people, especially youth and teens. Impact of Construction Delays on Ada's Cafe The construction delays at the MPLCC have negatively impacted Ada's Cafe. First, Ada's incurred certain costs related to changes in design and construction matters related to the build -out of the cafe space. Second, Ada's incurred additional monthly expenses, including interest payments, training costs, storage facilities and other fees, as it waited for the completion of the Project and repeatedly prepared for Project opening. Some of these costs related to commercial kitchen space that Ada's leased at an offsite location, which Ada's used for training and development before the MPLCC commercial kitchen became available. In the past few months, City staff has held meetings and discussions with Ada's to review the history of the delays and analyze impacts on the Cafe. As a result of these meetings and review of the past events at MPLCC, a proposed lease amendment has been developed to address Ada's concerns and compensate for additional expenses incurred. The parties have agreed that the items in the following table totaling $87,356 address and resolve the compensation and reimbursement requests from Ada's Cafe. The parties agree that the lease amendment settles all matters related to the MPLCC construction delays and resolves all of Ada's pre -opening concerns. Prior to payment by the City, Ada's will provide the City with the receipts of all payments for the noted items in this table in order to obtain reimbursement. City of Palo Alto Page 3 Payee Expense Category Description Amount Dolce Neve Equipment Repair Cleaning of the Cafe Espresso Machine due to prolonged period of inactivity after initial programming $285.00 Santa Clara County Licenses/Permits Ada's paid for a permit that it was not able to use because of the delayed opening $616.00 Dowling Builders Professional Services Fees paid to contractor to resolve the installation errors associated with the plumbing and filters underneath the espresso machine $1,200.00 Group 4 Professional Services Fees paid to drawings changes to accommodate the intended use of the space. $2,000.00 Master Plumbing Professional Services Fee to try and resolve the drainage issues under the three compartments sink in the cafe. $139.20 Noe Guzman Professional Services Cleaning of the Commercial Kitchen $950.00 Right Touch Designs Professional Services Architect Fees for Cafe Re -Design Ideas and Drawings during the RFP Process $10,000.00 Urban Lumber/Right Touch Designs Professional Services ADA compliant table that was not on the original plans needed to be designed, purchased and built $1,019.00 American Self- Storage Rent Storage of Catering Equipment & Supplies $6,346.00 Harrell Remodeling Rent Commercial Kitchen Rent $23,094.00 Public Storage Rent Storage of Cafe Equipment & Supplies $4,737.00 City of Palo Alto User Fees Lucie Stern Facility Use Fees $2,200.00 AT&T Utilities Phone Line at Cafe $1,385.00 Comcast Utilities Computer & Internet at the Commercial Kitchen $1,598.00 Ecolab Utilities Cleaning Services and Supplies at the Commercial Kitchen $4,072.00 PG&E Utilities Commercial Kitchen Utilities $6,895.00 Trap Recyclers Utilities Cleanout of the Commercial Kitchen Grease Trap $220.00 Sub Total $66,756 City of Palo Alto Page 4 *Other Items City of Palo Alto Cafe & Kitchen Tenant Improvement Credit $15,600 Sub Total $15,600.00 Grand Total $82,356 *Security deposit in the amount of $5,000 will be returned to Ada's Cafe The attached Lease Amendment Agreement (Attachment A) sets the Lease Commencement Date at the grand opening date of MPLCC which is December 6, 2014, therefore the initial lease term will end on December 6, 2019. The Amendment will also provide for Ada's Cafe to extend its lease option for one (1) five (5) year term at Ada's choosing after the initial five (5) year term has ended. It also provides for the City to reimburse Ada's Cafe for a "Tenant Improvement Credit" and its security deposit at the Mitchell Park Library and Community Center. The terms of this amendment are consistent with the direction of the City regarding the support of non- profits and resolve all issues, impacts and actual or potential disputes related to completion of the MPLCC and administration of the lease through the date of the lease amendment. City is projected to receive the total amount of $123,809 in rent revenue for the duration of ten years of the lease. Timeline The shared intention for the City and Ada's is that the cafe opens simultaneously with the opening of the Mitchell Park Library and Community Center in December of 2014. Resource Impact With this report, staff recommends the approval of a Budget Amendment Ordinance (Attachment B) to reimburse Ada's Cafe for incurred expenses in the amount of $87,356 offset with a reduction in the Budget Stabilization Reserve. Policy Implications The proposed lease is consistent with Policy and Procedures 1-11, Leased Use of the City's Land/Facilities. Environmental Review Amendment of the lease with Ada's Cafe is not a project subject to environmental review. Attachments: • Attachment A - Ada's Lease Amendment 2014 Final (DOC) • Attachment B - Budget Amendment Ordinance (DOCX) • Attachment C - Lease Ada Cafe MPLCC 2012 (PDF) City of Palo Alto Page 5 Attachment A AMENDMENT NUMBER ONE (1) TO LEASE BETWEEN CITY OF PALO ALTO AND ADA'S CAFE FOR THE CAFE SPACE AT MITCHELL PARK LIBRARY AND COMMUNITY CENTER This Amendment No. 1 to the Lease Between the City of Palo Alto and Ada's Cafe dated March 12, 2012("Lease), is made and entered into this day of , 2014, by and between the CITY OF PALO ALTO, a California municipal corporation of the State of California ("CITY"), and Ada's Cafe , a 501 (C ) non-profit California corporation ("LESSEE"); RECITALS WHEREAS, since 2010, the City has been working diligently to complete the project for the new library and the community center at Mitchell Park (MPLCC) that was initially scheduled to be completed in the fall of 2012, WHEREAS, the Lease provides for Lessee to operate and maintain the property located at 3700 Middlefield Road, Palo Alto ("PREMISES") as a cafe serving primarily the public and customers using the Mitchell Park Library and Community Center; and WHEREAS, the Lease requires the monthly rent payment of $650, and the initial term of the Lease is for five years and the Lease term can be extended for an additional five years by mutual agreement of the City and the Lessee; and WHEREAS, In 2010, the City Council awarded the contract for the project to build a new library and a community Center at Mitchell Park to Flintco Pacific Inc., the lowest responsible bidder; and WHEREAS, delays during the construction, defective work, and noncompliant work by Flintco postponed the completion of the project and led to cost overrun and change orders, cancelation of the Cafe opening and loss of potential revenues in the Lessee's business; and WHEREAS, City and Lessee agree that a lump sum reimbursement for the unexpected expenses to the Lessee is appropriate to offset the impact on the Lessee's business resulting from multiple delays in construction; and WHEREAS, Lessee and City desire to amend the Lease to provide for reimbursement of the expenses by the Lessee in order to provide relief to Lessee prior to the opening of the Cafe at Mitchell Park Library and Community Center; and WHEREAS, Lessee and City agree that this Amendment Number One fully and 1 Attachment A completely resolves all issues, impacts and actual or potential disputes related to completion of the MPLCC, completion and operation of the Premises and administration of the Lease, through the date of the Amendment, whether such matters were known or not known to the parties at the time of this Amendment. NOW, THEREFORE, in consideration of their mutual covenants, the parties hereto agree as follows: Item 1. Section 2.2.1 (Original Term) is amended to read as follows: Original Term. The initial term of this Lease shall commence 30 days from the City's completion of Premises or approval of Lessee to begin improvements for the Premises, whichever comes first ("Delivery Date"). The term of the Lease shall be for Five (5) years, commencing on December 6, 2014, which is the grand opening date for the Mitchel Park Library Community Center. Lessee shall, at the expiration of the term of this lease and any renewals exercised under Section 2.2.2, or upon its earlier termination, surrender the Property in as good condition as it is on the Delivery Date. The Parties expect reasonable wear and tear. Item 2. Section 2.2.2 (Renewal Term) is amended to read as follows: Renewal Term. Lessee has the option to renew this Lease for one (1) additional five (5) year terms. Lessee to provide the City with a sixty day (60) notice in writing prior to expiration of the lease term to exercise the right to extend the lease for an additional five (5) year term. Item 3. Section 4.4.1 (Security Deposit) is deleted Item 4. Section 4.4.2 (Return of the Security Deposit) is amended to read as follows: Return of the Security Deposit. The balance of the security deposit in the amount of $5,000 shall be returned to Lessee. Item 5. Section 49 (Reimbursement for the Incurred Expenses Due to Construction Delays) is added to the Lease as a new section read as follows: City to reimburse Ada's Cafe for the items in the following table to compensate Ada's Cafe for the impact of delays for the MPLCC project and additionally, (as noted in the last row of the table) the City also to reimburse Ada's cafe for a portion of cost of the tenant improvement, equivalent to the Cafe's rent payment for two years at the Mitchell Park Library and Community Center for cumulative total of 2 Attachment A $82,356 Ada's will provide the City with the receipts of all payments for the noted items in this table prior to receiving funds from the City. Payee Expense Category Description Amount Dolce Neve Equipment Repair Cleaning of the Cafe Espresso Machine due to prolonged period of inactivity after initial programming $285.00 Santa Clara County Licenses/Permits Ada's paid for a permit that it was not able to use because of the delayed opening $616.00 Dowling Builders Professional Services Fees paid to contractor to resolve the installation errors associated with the plumbing and filters underneath the espresso machine $1,200.00 Group 4 Professional Services Fees paid to drawings changes to accommodate the intended use of the space. $2,000.00 Master Plumbing Professional Services Fee to try and resolve the drainage issues under the three compartments sink in the cafe. $139.20 Noe Guzman Professional Services Cleaning of the Commercial Kitchen $950.00 Right Touch Designs Professional Services Architect Fees for Cafe Re -Design Ideas and Drawings during the RFP Process $10,000.00 Urban Lumber/Right Touch Designs Professional Services ADA compliant table that was not on the original plans needed to be designed, purchased and built $1,019.00 American Self- Storage Rent Storage of Catering Equipment & Supplies $6,346.00 Harrell Remodeling Rent Commercial Kitchen Rent $23,094.00 Public Storage Rent Storage of Cafe Equipment & Supplies $4,737.00 City of Palo Alto User Fees Lucie Stern Facility Use Fees $2,200.00 AT&T Utilities Phone Line at Cafe $1,385.00 Comcast Utilities Computer & Internet at the Commercial Kitchen $1,598.00 Ecolab Utilities Cleaning Services and Supplies at the Commercial Kitchen $4,072.00 PG&E Utilities Commercial Kitchen Utilities $6,895.00 Trap Recyclers Utilities Cleanout of the Commercial Kitchen Grease Trap $220.00 Sub Total $66,756 3 Attachment A *Other Items City of Palo Alto Cafe & Kitchen Tenant Improvement Credit $15,600 Sub Total $15,600.00 Grand Total $82,356 *Security deposit in the amount of $5,000 will be returned to Ada's Cafe. Item 6. Except as herein modified, all other provisions of and exhibits to the Lease shall remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this Amendment the day and year first above written. CITY OF PALO ALTO City Manager APPROVED AS TO FORM: Senior Assistant City Attorney LESSEE/ADA'S CAFE By: Its: 4 Attachment B Ordinance No. XXXX ORDINANCE OF THE COUNCIL OF THE CITY OF PALO ALTO AMENDING THE BUDGET FOR FISCAL YEAR 2015 IN THE GENERAL FUND TO AMEND THE LEASE AGREEMENT WITH ADA'S CAFE AND REIMBURSEMENT FOR EXPENSES INCURRED DUE TO THE DELAY OF THE OPENING OF THE MITCHELL PARK LIBRARY AND COMMUNITY CENTER IN THE AMOUNT OF $87,356 OFFSET BY A REDUCTION TO THE BUDGET STABILIZATION 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 I I I 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 entered into a five (5) year lease agreement with Ada's Cafe on March 12, 2012 to operate a cafe at the site of Mitchell Park Library and Community Center (MPLCC), with an understanding that the MPLCC project would be complete and open in the fall of 2012; and C. Due to delays in the construction and delivery by the original project contractor, the MPLCC facility, including Ada's Cafe, did not open until December of 2014; and D. The two year delay caused Ada's Cafe to incur several additional costs that impacted its financial standing, including training and storage costs, the necessity to enter into a lease agreement and incur related commercial equipment purchase costs with a commercial kitchen in Mountain View; additional costs in tenant improvements to the Cafe space at the MPLCC; and E. Due to the delays in the construction of the Mitchell Park Library and Community Center, staff engaged with Ada's Cafe Center to renegotiate the lease agreement duration and discuss compensation for costs due to the delay of the facility opening; and F. Therefore, staff recommends a reimbursement in the amount of $87,356 for incurred expenses caused by the delays in construction at the MPLCC facility, the reimbursement amount is an agreed upon portion of the cost of the tenant improvement equivalent to the Cafe's rent payment for two years at the MPLCC; and G. Furthermore, staff recommends an amendment to the contract with Ada's Cafe to extend its lease option term from one (1) five (5) year period based on mutual agreement of the City and Ada's Cafe to one (1) five (5) year terms at Ada's option; and 1 Attachment B SECTION 2. In the General Fund, Eighty Seven Thousand Three Hundred Fifty Six Dollars ($87,356) is hereby appropriated to the Administrative Services Department for the reimbursement to Ada's Cafe offset by a corresponding decrease to the Budget Stabilization Reserve. SECTION 3. As provided in Section 2.04.330 of the Palo Alto Municipal Code, this ordinance shall become effective upon adoption. SECTION 4. As specified in Section 2.28.080(a) of the Palo Alto Municipal Code, a two-thirds vote of the City Council is required to adopt this ordinance. SECTION 5. 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 21PaLse Attachment C C LEASE AGREEMENT BETWEEN CITY OF PALO ALTO AND Ada's Cafe TABLE OF CONTENTS LEASE PROVISIONS 1. PREMISES. 2 2. TERM .... 2 3. RENT. 2 4. SECURITY DEPOSIT. 3 5. USE OF PROPERTY. 4 6. HAZARDOUS MATERIALS 6 7. UTILITIES AND OPERATING EXPENSES 8 8. TAXES. 8 9. MAINTENANCE. 10 10. ALTERATIONS BY LESSEE 11 11. INTENTIONALLY OMITTED. 11 12. HOLD HARMLESS/INDEMNIFICATION. 12 13. DAMAGE, DESTRUCTION AND TERMINATION 12 14. SIGNS 14 15. ASSIGNMENT AND SUBLETTING 14 16. DEFAULTS; REMEDIES 14 17. INTEREST ON PAST -DUE OBLIGATIONS 16 18. HOLDING OVER 16 19. CITY'S ACCESS. 16 20. INSURANCE 17 21. INTENTIONALLY OMITTED. 18 22. EMINENT DOMAIN. 18 23. POST -ACQUISITION TENANCY 19 Attachment C (� 24. NON -LIABILITY OF OFFICIALS AND EMPLOYEES OF THE CITY. .......19 25. NON-DISCRIMINATION. .......19 26. INDEPENDENT CONTRACTOR 19 27. CONFLICT OF INTEREST 20 28. MEMORANDUM OF LEASE. 20 29. ESTOPPEL CERTIFICATE 20 30. LIENS, 20 31. VACATING. 20 32. ABANDONMENT. 20 33. NOTICES. 21 34. TIME. 21 35. AMENDMENTS. 21 36. SIGNING AUTHORITY 21 37. CAPTIONS 22 38. SURRENDER OF LEASE NOT MERGER. 22 39. INTEGRATED DOCUMENT. 22 40. WAIVER 22 41. INTERPRETATIONS 22 42. SEVERABILITY CLAUSE. 22 43. GOVERNING LAW 23 44. VENUE 23 45. COMPLIANCE WITH LAWS 23 46. BROKERS. 23 47. LIMITATION OF LEASEHOLD 23 48. TERMINATION OF PRIOR AGREEMENTS 23 49. ATTACHMENTS TO LEASE. 23 EXHIBITS A DESCRIPTION OF SUBJECT PROPERTY 26 B INVENTORY OF FIXTURES 27 ii Attachment C C STANDARD INSURANCE REQUIREMENTS 28 D OPERATIONAL REQUIREMENTS 31 iii Attachment C Attachment C LEASE AGREEMENT BETWEEN CITY OF PALO ALTO AND Ana's Cafe This lease agreement (herein "Lease") is made and entered into this 1A day of 6917CA, 2012, by and between the City of Palo Alto, a California chartered municipal corporation (herein "City") and Ada's Cafe, a California non-profit corporation (herein "Lessee"). City and Lessee may be referred to individually as a "Party" or collectively as the "Parties" or the "Parties to this Lease." The City Manager serves as Contract Administrator for this Lease on behalf of the City Council. RECITALS A. These recitals are a substantive portion of this Lease. B. City and Lessee desire to lease the Premises to provide for the operation and maintenance of a cafe serving primarily the public and customers using the Mitchell Park Library and Community Center (the Center) and surrounding Park area. The Mitchell Park Community Center will be home to the City of Palo Alto Teen Center. The Cafe is expected to provide a welcoming and supportive environment for the teen community particularly during non -school hours. C. Customer service is very important to the City of Palo Alto. The City of Palo Alto expects a customer service philosophy and specific strategies for achieving results for high level of customer satisfaction in areas such as friendliness of staff, prompt service and a welcoming atmosphere at the Cafe. D. The Community Center and Library is intended to be an accessible, welcoming, multi- purpose gathering space for Palo Alto's diverse community. It is expected that the Lessee shall go beyond providing minimum food and beverage service, but shall also provide the public some form of social benefit. E. Environmental Sustainability is an important value to the City of Palo Alto. It is expected that the Lessee will operate the cafe in complete accordance with established City environmental policies, practices, directives, and initiatives (currently in effect, or as may be adopted in the future). Now, therefore, in consideration of these recitals and the following covenants, terms, and conditions, Lessee and City mutually agree as follows: Rev. Jan. 29, 2012 Attachment C LEASE PROVISIONS 1. PREMISES. City hereby leases to Lessee, certain real property located in the City of Palo Alto, County of Santa Clara, State of California, commonly known as the Palo Alto Mitchell Park Library and Community Center Cafe (herein the "Property") and more particularly described in Exhibit A attached hereto and incorporated herein by reference. The Property consists of approximately five hundred and thirty- three (533) square feet of the Palo Alto Mitchell Park Library and Community Center facility except for the Inventory of Fixtures set forth in Exhibit B attached hereto and incorporated herein by reference. Unless specifically provided, Lessee accepts the Property "as -is" on the date of execution of this Lease. 2. TERM, 2.1 Original Term. The initial term of this Lease shall be for Five (5) years, commencing on 30 days from the City's completion of Premises or approval of Lessee to begin improvements for the Premises, whichever comes first ("Delivery Date"). Delivery Date is the date the term commences. If City Mitchell Park project prevents access to the Premises, the Delivery Date shall be delayed until access to the Premises is provided. Lessee shall, at the expiration of the term of this lease, or upon its earlier termination, surrender the Property in as good condition as it is on the Delivery Date. The Parties expect reasonable wear and tear. 2.2 Renewal Term. This Lease may be renewed by mutual agreement for an additional Five (5) years. 2.3 Termination. City or Lessee may terminate this Lease upon one -hundred twenty (120) days written notice. If City terminates the lease without cause, the City will reimburse the Lessee for the unamortized cost of any capital build -out investment incurred by Lessee, but in no event not to exceed $150,000.00. 3. RENT. 3.1 Monthly Rent. The Monthly Rent to be paid by Lessee shall be in the amount of six hundred fifty dollars ($650.00) per month without deduction or offset. Rent shall be payable on the first day of each and every month commencing on the first (1St) day of retail operations, at a place (or places) as may be designated in writing from time to time by City. For the purposes of this provision, the first month of retail operations means the first day that Lessee begins providing service to the public. It is contemplated the retail opening will take place concurrently with the public opening of the Center. 3.2 Annual Increase. During the Term of this Lease, including the Option Period if the option is exercised, the Base Rent shall be increased effective on each anniversary of the 2 Rev. Jan. 29, 2012 Attachment C Delivery Date. The sum shall be adjusted annually resulting in a compound rate of increase. Lease payments are to be adjusted based on the State of California Department of Industrial Relations, Division of Labor Statistics and Research's Consumer Price Index, All Urban Consumers, All Items, San Francisco -Oakland -San Jose, California. ("CPI Index") The CPI Index for the quarter ending just prior to this lease date is established as the base index. Percentage and adjustments to the original lease payments shall be as indicated by percentage changes in said index. 3.3 Late Charge. Lessee acknowledges late payment of rent will cause City to incur costs not contemplated by this Lease, the exact amount of such costs being extremely difficult and impracticable to fix. Such costs include, without limitation, processing, accounting and late charges that may be imposed on City. Therefore, if City does not receive any installment of rent due from Lessee within ten (10) days after the date such rent is due, Lessee shall pay to City an additional sum of ten percent (10%) of the overdue rent as a late charge. The parties agree this late charge represents a fair and reasonable estimate of the costs City will incur by reason of late payment by Lessee. Acceptance of any late charge shall not constitute a waiver of Lessee's default with respect to the overdue amount, nor prevent City from exercising any of the other rights and remedies available to City, including termination of this lease. 3.4 Rent Payment Procedures. As described in Section 3.1, Lessee's obligation to pay rent shall commence 1 on the first (1S) day of retail operations. If the term commences or terminates on "a date other than the first of any month, monthly rent for the first and last month of this Lease shall be prorated based on a 30 -day month. Rent payments, including any additional facility use fees, shall be delivered to City's Revenue Collections Division, 250 Hamilton Avenue, PO Box 10250, Palo Alto, CA 94303. The designated place of payment may be changed at any time by City upon ten (10) days' written notice to Lessee. Lessee specifically agrees that acceptance of any late or incorrect rentals submitted by Lessee shall not constitute an acquiescence or waiver by City and shall not prevent City from enforcing Section 3.3 (Late Charge) or any other remedy provided in this Lease. Acceptance of rent shall not constitute approval of any unauthorized sublease or use, nor constitute a waiver of any non -monetary breach. Payments shall be effective upon receipt. City may apply any payment received from Lessee at any time against any obligation due and owing by Lessee under this Lease, regardless of any statement appearing on or referred to in any remittance from Lessee or any prior application of such payments. 3.5 Partial Payment. The receipt by City of a partial payment of any amount due to City endorsed as payment in full will be deemed to be a partial payment only. City may accept and deposit said check without prejudice to its right to recover the balance. Any endorsements or statements on the check or any letter accompanying the check shall not be deemed an accord and/or satisfaction. Lessee's obligation (without prior notice or demands) to pay rent and all other amounts due hereunder shall be absolute and unconditional, and not subject to any abatement, set off, defense, recoupment or reduction. 4. SECURITY DEPOSIT 3 Rev. Jan. 29, 2012 Attachment C 4.1 Security Deposit. Upon execution of this Lease, Lessee shall deliver to City an amount of five thousand dollars ($5,000.00) as a security deposit. City may use these funds as are reasonably necessary to remedy any Lessee default(s) in the payment of rent, to repair damages caused by Lessee, or expenses incurred to clean the Property upon termination of tenancy. If any portion of the security deposit is used towards rent or damages at City's sole discretion, Lessee agrees to reinstate the total security deposit upon receipt of ten (10) days written notice. 4.2 Return of Security Deposit. The balance of security deposit, if any, shall be mailed to Lessee's last known address within thirty (30) days of surrender of Property. 5. USE OF PROPERTY 5.1 Required Uses. Throughout the term of this Lease, Lessee shall provide the following uses, services and activities ("Required Uses"): Lessee is hereby authorized to and shall conduct in the Premises a food and beverage service, in order to provide for the needs of the public and those persons utilizing the Mitchell Park Library and Community Center and surrounding park users subject to the Operational Requirements outlined in Exhibit D which is attached and incorporated into this Lease and which may be modified from time to time by City. 5.2 Optional Uses. Subject to the prior written approval of the City Manager or designee, which approval shall be within the sole discretion of the City Manager or designee, Lessee may also use the Premises to provide additional services and uses which are ancillary to and compatible with the required services and uses set forth above. Examples of such ancillary services and uses may include, but are not limited to, the following: A. Vending machines, including games and convenience items. Lessee may, at its cost, place an identification sign on or beneath the existing community center sign on the building itself and may place advertisements in newspapers, magazines or on radio. If, in the opinion of the City Manager, based upon his or her sole discretion, the number of non -Center users is adversely affecting access to the facilities and services by the public, Lessee agrees that upon 30 days' written notice from the City Manager, advertising shall cease or be modified to eliminate such adverse effect. The signs shall be approved by Lessee in accordance with this Lease and applicable City of Palo Alto processes including the Architectural Review Board and Site and Design review prior to installation Signage design should conform with Architectural Review Board — adopted design guidelines specific to the Mitchell Park Community Center and Library. 5.3 Prohibited Uses. Lessee shall not use Premises for any purpose not expressly permitted hereunder. Lessee shall not create, cause, maintain or permit any nuisance or waste in, on, or about the Premises, or permit or allow the Premises to be used for any unlawful or immoral 4 Rev. Jan. 29, 2012 Attachment C purpose. Lessee shall not do or permit to be done anything in any manner which unreasonably disturbs the users of the City Property or the occupants of neighboring property. Specifically, and without limiting the above, Lessee agrees not to cause any unreasonable odor, noise, vibration, power emission, or other item to emanate from the Premises or to interfere with Center programs, classes, rentals and activities.. No materials or articles of any nature shall be stored outside upon any portion of the Premises without approval by the City Manager or designee. Lessee will not use Property in a manner that increases the risk of fire, cost of fire insurance or improvements thereon. No unreasonable sign or placard shall be painted, inscribed or placed in or on said Property; and no tree or shrub thereon shall be destroyed or removed or other waste committed of said Property. No bicycles, motorcycles, automobiles or other mechanical means of transportation) shall be placed or stored anywhere on the Property except for the parking lot. No repair, overhaul or modification of any motor vehicle shall take place on the Property or the street in front of said Property. Lessee, at his/her expense, shall keep the Property in as good condition as it was at the beginning of the terms hereof, except damage occasioned by ordinary wear and tear, and except damage to the roof, sidewalks and underground plumbing, which is not the fault of Lessee. 5.4 Condition, Use of Premises. City makes no warranty or representation of any kind concerning the condition of the Premises, or the fitness of the Premises for the use intended by Lessee, and hereby disclaims any personal knowledge with respect thereto, it being expressly understood by the parties that Lessee has personally inspected the Premises, knows its condition, finds it fit for Lessee's intended use, accepts it as is, and has ascertained that it can be used exclusively for the limited purposes specified in Section 5.1 or (ii) notifies the City of any design or construction deficiencies that make the Premises unsuitable to be used for the limited purposes and works with the City to resolve such deficiencies. If such deficiencies cannot be amicably resolved, the Lessee shall have the right to reject the space and cancel this Lease. Such notification of deficiencies shall be provided to City with ten (10) days of Delivery Date and such cancellation shall be delivered to City with sixty (60 days of Delivery Date. Further, in the build out of the Premises and prior to Lessee's occupancy, the City shall reasonably consult with the Lessee concerning interior finishes for the Premises, including flooring, counters, shelving and other fixtures. 5.5 Operating Requirements Lessee shall continuously use the Premises and at approved and scheduled times the Additional Spaces described in Attachment D for the uses specified in this Lease during all usual business hours and on all such days as comparable businesses in the area or as are customary for the Required Uses and in accordance with the additional requirements/guidelines outlined in Attachment D. Minimum hours for food service are 10 a.m. to 5 p.m. Lessee shall use only such space within the Premises for non -sales or service uses as is reasonably required for Lessee's required or approved uses of the Premises. Lessee shall at all times maintain a written schedule setting forth the operating hours and 5 Rev. Jan. 29, 2012 Attachment C () operating procedures for each required and permitted use provided on or from the Premises. A schedule of prices charged for all goods and/or services related to the required and permitted uses of this Lease shall also be maintained and individual merchandise must be clearly priced. Lessee agrees that when alternate forms of packaging are available, only items packaged in the manner most compatible with the goals of reducing litter and preserving the environment shall be sold. Upon written request, Lessee shall furnish the City Manager a copy of the schedules and procedures. Should the City Manager decide that any part of these schedules or procedures is not justified with regard to fairly satisfying the needs of the public, Lessee, upon written notice from the City Manager, shall modify these schedules or procedures to the satisfaction of the City Manager. Prior to issuing such a notice, the City Manager shall personally review and confer with Lessee or its representative. Primary consideration shall be given to the public's benefit in implementing this Section. All prices charged for goods and/or services supplied to the public on or from the Premises shall be fair and reasonable, based upon the following considerations: A. The degree of public service involved in the sale of the goods and/or services; B. The market prices charged by other competing and/or comparable businesses; and C. The reasonableness of the profit margin as related industry -wide. Lessee's failure to comply with the provisions of this Section shall constitute a material breach of this Lease. Lessee agrees that it will operate and manage the services and facilities offered in a competent and efficient manner at least comparable to other well -managed operations of a similar type. Lessee shall at all times retain active, qualified, competent, and experienced personnel to supervise Lessee's operation and to represent and act for Lessee. Lessee shall require its attendants and employees to be properly dressed, clean, courteous, efficient, and neat in appearance at all times. Lessee shall not allow any person(s) in or about the Premises who shall use offensive language and/or act in a boisterous or otherwise improper manner. Lessee shall maintain a close check over attendants and employees to insure the maintenance of a high standard of service to the public. 6. HAZARDOUS MATERIALS. 6.4 Hazardous Materials Defined. The term Hazardous Material(s) shall mean any toxic or hazardous substance, material or waste or any pollutant or contaminant, or infectious or 6 Rev. Jan. 29, 2012 Attachment C radioactive material, including but not limited to, those substances, materials, or wastes regulated now or in the future under any of the following statutes or regulations and any and all of those substances included within the definitions of hazardous substances, hazardous waste, hazardous chemical substance or mixture, imminently hazardous chemical substance or mixture," "toxic substances," hazardous air pollutant, toxic pollutant or solid waste in the (a) CERCLA or Superfund as amended by SARA, 42 U.S.C. Sec. 9601 et seq., (b) RCRA, 42 U.S.C. Sec. 6901 et seq., (c) CWA., 33 U.S.C. Sec. 1251 et seq., (d) CAA, 42 U.S.C. 78401 et seq., (e) TSCA, 15 U.S.C. Sec. 2601 et seq., (f) The Refuse Act of 1899, 33 U.S.C. Sec. 407, (g) OSHA, 29 U.S.C. 651 et seq. (h) Hazardous Materials Transportation Act, 49 U.S.C. Sec. 1801 et seq., (i) USDOT Table (40 CFR Part 302 and amendments) or the EPA Table (40 CFR Part 302 and amendments), (j) California Superfund, Cal. Health & Safety Code Sec. 25300 et seq., (k) Cal. Hazardous Waste Control Act, Cal. Health & Safety Code Section 25100 et seq., (1) Porter -Cologne Act, Cal. Water Code Sec. 13000 et seq., (m) Hazardous Waste Disposal Land Use Law, Cal. Health & Safety Code Sec. 25220 et seq., (n) Proposition 65, Cal. Health and Safety Code Sec. 25249.5 et seq., (o) Hazardous Substances Underground .Storage Tank Law, Cal. Health & Safety Code Sec. 25280 et seq., (p) California Hazardous Substance Act, Cal. Health & Safety Code Sec. 28740 et seq., (q) Air Resources Law, Cal. Health & Safety Code Sec. 39000 et seq., (r) Hazardous Materials Release Response Plans and Inventozy, Cal. Health & Safety Code Secs. 25500-25541, (s) TCPA, Cal. Health and Safety Code Secs. 25208 et seq., and (t) regulations promulgated pursuant to said laws or any replacement thereof, or as similar terms are defined in the federal, state and local laws, statutes, regulations, orders or rules. Hazardous Materials shall also mean any and all other substances, materials, and wastes which are, or in the future become, regulated under applicable local, state or federal law for the protection of health or the environment, or which are classified as hazardous or toxic substances, materials or wastes, pollutants or contaminants, as defined, listed or regulated by any federal, state or local law, regulation or order or by common law decision, including without limitation: (1) trichloroethylene, tetracholoethylene, perchloroethylene and other chlorinated solvents; (ii) any petroleum products or fractions thereof; (iii) asbestos, (iv) polychlorinated biphenyls; (v) flammable explosives; (vi) urea formaldehyde; and, (vii) radioactive materials and waste. 6.2. Compliance with Laws. Lessee shall not cause or permit any Hazardous Material (as defined below) to be brought upon, kept or used in or about the Premises or Project by Lessee, its agents, employees, contractors or invitees. 6.3 Termination of Lease. City shall have the right to terminate the Lease in City's sole and absolute discretion in the event that: (i) any anticipated use of the Premises by Lessee involves the generation or storage, use, treatment, disposal, or release of Hazardous Material in a manner or for a purpose prohibited or regulated by any governmental agency, authority, or Hazardous Materials Laws; (ii) Lessee has been required by any lender or governmental authority to take remedial action in connection with Hazardous Material contaminating the Premises, if the contamination resulted from Lessee's action or use of the Premises; or (iii) Lessee is subject to an enforcement order issued by any governmental authority in connection with the release, use, disposal, or storage of a Hazardous Material on the 7 Rev. Jan. 29, 2012 Attachment C Premises. 6.4 Assignment and Subletting. It shall not be unreasonable for City to withhold its consent to an assignment or subletting to such proposed assignee or sub lessee if: (i) any anticipated use of the Premises by any proposed assignee or sub lessee involves the generation or storage, use, treatment, disposal, or release of Hazardous Material in a manner or for any purpose; (ii) the proposed assignee or sub lessee has been required by any prior landlord, lender, or governmental authority to take remedial action in connection with Hazardous Material contaminating a property, if the contamination resulted from such party❑s action or use of the property in question; or, (iii) the proposed assignee or sub lessee is subject to an enforcement order issued by any governmental authority in connection with the release, use, disposal or storage of a Hazardous Material. 6.5 Hazardous Materials Indemnity. Lessee shall indemnify, defend (by counsel reasonably acceptable to City), protect, and hold Landlord harmless from and against any and all claims, liabilities, penalties, forfeitures, losses, and/or expenses, including without limitation, diminution in value of the Premises, damages for the loss or restriction on use of the rentable or usable space or of any amenity of the Premises, damages arising from any adverse impact or marketing of the Premises and sums paid in settlement of claims, response costs, cleanup costs, site assessment costs, attorneys' fees, consultant and expert fees, judgments, administrative rulings or orders, fines, costs of death of or injury to any person, or damage to any property whatsoever (including, without limitation, groundwater, sewer systems, and atmosphere), arising from, caused, or resulting, during the Lease Term, in whole or in part, directly or indirectly, by the presence or discharge in, on, under, or about the Premises by Lessee, Lessee's agents, employees, licensees, or invitees or at Lessee's direction, of Hazardous Material, or by Lessee's failure, to comply with any Hazardous Materials Law, whether knowingly or by strict liability. For purposes of the indemnity provided herein, any acts or omissions of Lessee or its employees, agents, customers, sub lessees, assignees, contractors, or subcontractors of Lessee (whether or not they are negligent, intentional, willful or unlawful) shall be strictly attributable to Lessee. Lessee's indemnification obligations shall include, without limitation, and whether foreseeable or unforeseeable, all costs of any required or necessary Hazardous Materials management plan, investigation, repairs, cleanup or detoxification or decontamination of the Premises, and the presence and implementation of any closure, remedial action or other required plans, and shall survive the expiration of or early termination of the Lease Term. 6.6 City's Right to Perform Tests. At any time prior to the expiration of the Lease Term, City shall have the right to enter upon the Premises in order to conduct tests of water and soil. 7. UTILITIES AND OPERATING EXPENSES. Lessee shall be responsible for ensuring that all refuse, compost, garbage, recycling and any other refuse pickup and disposal is placed regularly within the designated trash and 8 Rev. Jan. 29, 2012 Attachment C recycling area. Should Lessee generate more refuse, garbage or recycling that requires additional service; Lessee shall be solely responsible for the cost of that additional service. City shall pay for and provide gas, water, wastewater, and electric utility and refuse services. Should Lessee, and or City, determine that a security alarm system, or any additional security monitoring service, is necessary for the security of the Cafe area, Lessee shall bear the cost of having such an alarm installed and maintained at its sole cost and expense. Lessee will be solely responsible for payment of any false alarm fees resulting from the negligent use or disarming of the security alarm system. 8. TAXES 8.1 Real Property Taxes Defined. The term "real property taxes" as used herein shall mean all taxes, assessments, levies and other charges, general and special, foreseen and unforeseen, now or hereafter imposed by any governmental or quasi -governmental authority or special district having the direct or indirect power to tax or levy assessments, which are levied or assessed against or with respect to: (i) value, occupancy, use or possession of the Premises and/or the Improvements; (ii) any improvements, fixtures, equipment and other real or personal property of Lessee that are an integral part of the Premises; or, (iii) use of the Premises, Improvements public utilities or energy within the Premises. The term "real property taxes" shall also mean all charges, levies or fees imposed by reason of environmental regulation or other governmental control of the premises and/or the Improvements, new or altered excise, transaction, sales, privilege, assessment, or other taxes or charges now or hereafter imposed upon City as a result of this Lease, and all costs and fees (including attorneys' fees) incurred by City in contesting any real property taxes and in negotiating with public authorities as to any real property taxes affecting the Premises. If any real property taxes are based upon property or rents unrelated to the Premises and/or the Improvements, then only that part of such tax that is fairly allocable to the Premises and/or the Improvements, as determined by City, on the basis of the assessor's worksheets or other available information, shall be included within the meaning of the term "real property taxes." 8.2 Payment of Real Property Taxes. Lessee shall pay Lessee's share of all real property taxes (as defined in Section 8.1 above) which become due and payable to City on or before the later of ten (10) days prior to the delinquency thereof or three (3) days after the date on which Lessee receives a copy of the tax bill and notice of City's determination hereunder. Lessee's liability to pay real property taxes shall be prorated on the basis of a three hundred sixty-five (365) day year to account for any fraction or portion of a tax year included in the Lease term at the commencement or expiration of the Lease. 8.3 Revenue and Taxation Code. Lessee specifically acknowledges it is familiar with section 107.6 of the California Revenue and Taxation Code. Lessee realizes that a possessory interest subject to property taxes may be created, agrees to pay any such tax, and hereby waives any rights Lessee may have under said California Revenue and Taxation Code section 107.6. 9 Rev. Jan. 29, 2012 Attachment C 8.4 Personal Property Taxes. Lessee shall pay before delinquent, or if requested by City, reimburse City for, any and all taxes, fees, and assessments associated with the Property, the personal property contained in the premises and other taxes, fees, and assessments regarding any activities which take place at the Property. Lessee recognizes and understands in accepting this Lease that its interest therein may be subject to a possible possessory interest tax that City or County may impose on such interest and that such tax payment shall not reduce any rent due City hereunder and any such tax shall be the liability of and be paid by Lessee. 9. MAINTENANCE. City and Lessee Responsibilities. Lessee at Lessee's expense, shall perform all maintenance and repairs of the Premises, including plumbing and electrical systems, all interior painting, and maintenance of doors and locks, carpeting and floor coverings and replacement of broken windows with City approval on job specifications, if such breakage is caused from within the demised Premises. Lessee is responsible to keep and maintain in good working condition all items owned and furnished by the Lessee and those provided by the City as listed in Exhibit B (Inventory of Cafe Equipment). Lessee shall keep the Premises and all improvements thereto in good working order, repair, and condition, and shall keep the Premises in a safe, clean, attractive, wholesome, and sanitary condition to the complete satisfaction of City, and in compliance with all applicable laws, throughout the term of this Lease. In addition, Lessee shall maintain, at Lessee's expense, all equipment, furnishings and trade fixtures upon the Premises required for the maintenance and operation of a first- class business of the type to be conducted pursuant to this Lease. Equipment to be maintained per manufacturer's guidelines. Lessee is also responsible for lamp and ballast replacement, exhaust hood fire suppression system maintenance and inspections, exhaust hood filter/duct cleaning, and grease trap cleaning. City will maintain all lock hardware. Lessee hereby agrees to specifically comply with City's Sewer Use Ordinance Chapter 16.09 with special attention to the maintenance of the grease control device as required under Palo Alto Municipal Code Section 16.09.075 Food Service Establislnnents. Should City be required to maintain, repair or replace the grease control devise including exhaust hood filters and ducts due to non compliance by Lessee, all costs associated with the maintenance, repair or replacement shall be at the sole cost and expense of Lessee. City shall be responsible for the maintenance and repair of all Center structural elements located on or within the Premises and main support systems not exclusively serving the Premises, including roof repair, plumbing infrastructure, electrical system repair, exterior painting and structural repairs. City shall maintain the HVAC units and boiler serving the Premises and replacement of broken windows if such breakage is caused from outside of the Premises. 9.2 Waiver of Civil Code. Lessee expressly waives the benefit of any statute now or hereinafter in effect, including the provisions of sections 1941 and 1942 of the Civil Code of California, which would otherwise afford Lessee the right to make repairs at City's expense 10 Rev. Jan. 29, 2012 () Attachment C or to terminate this Lease because of City's failure to keep Premises in good order, condition and repair. Lessee further agrees that if and when any repairs, alterations, additions or betterments shall be made by Lessee as required by this paragraph, Lessee shall promptly pay for all labor done or materials furnished and shall keep the Premises free and clear of any lien or encumbrance of any kind whatsoever. If Lessee fails to make any repairs or perform any maintenance work for which Lessee is responsible within a reasonable time (as determined by the City Manager in the City Manager's sole discretion) after demand by the City, City shall have the right, but not the obligation, to make the repairs at Lessee's expense; within ten (10) days of receipt of a bill, Lessee shall reimburse City for the cost of such repairs, including a fifteen percent (15%) administrative overhead fee. The making of such repairs or performance of maintenance by City shall in no event be construed as a waiver of the duty of Lessee to make repairs or perform maintenance as provided in this Section. 9.3 Maintenance of Common Areas. City shall maintain or cause to be maintained, including repair and replacement as necessary, the following common areas serving the Premises and other premises: public restrooms, exterior walkways, exterior window washing two (2) times per year, parking lot and landscaping. 10. ALTERATIONS BY LESSEE 10.1 Lessee shall not make any additional alterations or improvements, beyond those described below in 10.2, to the Premises without obtaining the prior written consent of the City Manager. . Lessee may, at any time and at its sole expense, install and place business fixtures and equipment within the Premises, provided such fixtures and installation have been reviewed and approved by the City Manager. 10.2 Lessee Improvements, including plumbing and electrical. The Lessee is responsible for all Lessee improvements associated with design and installation of display cases. Vendor shall use the overall library and community center design as a "guideline" in designing display cases to insure the design is complimentary to the surrounding design elements already in place. The vendor shall employ a professional designer. All designs and specifications are subject to City or other appropriate governmental approval, such as the Santa Clara County Health Department. The City is responsible for providing the minimum plumbing and electrical requirements shown on Exhibit B. Vendor will provide any plumbing and electrical modifications that are required over and above those already provided by the City. The vendor shall employ a professional designer. All designs and specifications are subject to City or other appropriate govenunental approval, especially those necessary to meet Santa Clara County Health Department regulations. As discussed in Sections 5.2 and Section 14, any facility signage shall be designed and displayed in accordance with site and design conditions and with the Architectural Review Board adopted sign design guidelines. 11. INTENTIONALLY OMITTED 11 Rev. Jan. 29, 2012 Attachment C 12. HOLD HARMLESS/INDEMNIFICATION. 12.1 Indemnification. To the extent permitted by law, Lessee agrees to protect, defend, hold harmless and indemnify City, its City Council, commissions, officers, agents, volunteers, and employees from and against any claim, injury, liability, loss, cost, and/or expense or damage, however same may be caused, including all costs and reasonable attorney's fees in providing a defense to any claim arising there from for which City shall become legally liable arising from Lessee's negligent, reckless, or wrongful acts, errors, or omissions with respect to or in any way connected with this Lease. Lessee shall give City immediate notice of any claim or liability hereby indemnified against. This indemnity shall be in addition to the Hazardous Materials indemnity contained in this Lease and shall survive shall survive the expiration of or early termination of the Lease. Term. 12.2 Waiver of Claims. Lessee waives any claims against City for injury to Lessee's business of any loss of income there from, for damage to Lessee's property, or for injury or death of any person in or about the Premises or the City Property, from any cause whatsoever, except to the extent caused by City's active negligence or willful misconduct. 13. DAMAGE, DESTRUCTION AND TERMINATION 13.1 Nontermination and Nonabatement. Except as provided herein, no destruction or damage to the Premises by fire, windstorm or other casualty, whether insured or uninsured, shall entitle Lessee to terminate this Lease. City and Lessee waive the provisions of any statutes which relate to termination of a lease when leased property is destroyed and agree that such event shall be governed by the terms of this Lease. 13.2 Force Majeure. Prevention, delay or stoppage due to strikes, lockouts, labor disputes, Acts of God, inability to obtain labor, inability to obtain materials or reasonable substitutes, governmental restrictions, governmental regulation, governmental controls, judicial orders, enemy or hostile governmental actions, civil commotion, fire or other casualty, and other causes beyond the reasonable control of Lessee (financial inability excepted), shall excuse the performance by Lessee for a period equal to the prevention, delay, or stoppage, except the obligations imposed with regard to rent to be paid by Lessee pursuant to this Lease. In the event any work performed by Lessee or Lessee's contractors results in a strike, lockout, and/or labor dispute, the strike, lockout, and/or labor dispute shall not excuse the performance by Lessee of the provisions of this Lease. 13.3 Restoration of Premises by City . 13.3.1 Destruction Due to Risk Covered by Insurance. If, during the term, the Premises or the building in which the Premises are located are totally or partially destroyed from a risk covered by the insurance described in Section 20 (Insurance), OR ANY INSURANCE, INCLUDING SELF INSURANCE, MAINTAINED BY THE CITY„ rendering the Premises or the building in 12 Rev. Jan. 29, 2012 Attachment C which the Premises are located totally or partially inaccessible or unusable, City shall restore the Premises or the building in which the Premises are located to substantially the same condition as it was in immediately before destruction. Such destruction shall not terminate this Lease. If the laws existing at that time do not permit the restoration, either party can terminate this Lease immediately by giving notice to the other party. If, during the term of this Lease, the loss to the Premises or the building in which the Premises are located exceeds the proceeds from the insurance described in Section 20 (Insurance) OR ANY INSURANCE, INCLUDING SELF INSURANCE MAINTAINED BY THE CITY„ City can elect to terminate this Lease by giving notice to. Lessee within thirty (30) days after determining the cost of restoration will exceed the insurance proceeds. In the case of destruction to the Premises only, if City elects to terminate this Lease, Lessee, within thirty (30) days after receiving City's notice to terminate, can elect to pay to City, at the time Lessee notifies City of its election, the difference between the amount of insurance proceeds and the cost of restoration, in which case City shall restore the Premises. City shall give Lessee satisfactory evidence that all sums contributed by Tenant as provided in the paragraph have been expended by City in paying the cost of restoration. If City elects to terminate this Lease and Lessee does not elect to contribute toward the cost of restoration as provided in this section, this Lease shall terminate. 13.3.2 Destruction Due to Risk Not. Covered by Insurance. If, DUE TO AN EVENT NOT COVERED BY INSURANCE DESCRIBED BY SECTION 20 OR OTHERWISE MAINTAINED BY THE CITY, the cost of restoration exceeds ten percent (10%) of the then replacement value of the Premises totally or partially destroyed, City can elect to terminate this Lease by giving notice to City within sixty (60) days after determining the restoration cost and replacement value. In the case of destruction to the Premises only, if City elects to terminate this Lease, Lessee, within thirty (30) days after receiving City's notice to terminate, can elect to pay to City at the time Lessee notifies City of its election, the difference between ten percent (10%) of the then replacement value of the Premises and the actual cost of restoration, in which case City shall restore the Premises. City shall give Lessee satisfactory evidence that all sums contributed by Tenant as provided in the paragraph have been expended by City in paying the cost of restoration. If City elects to terminate this Lease and Lessee cannot or does not elect to 13 Rev. Jan. 29, 2012 Attachment C contribute toward the cost of restoration as provided in this section, this Lease shall terminate 13.3.3 Extent of City's Obligation to Restore. If City is required or elects to restore the Premises as provided in this section, City shall not be required to restore alterations made by Lessee, Lessee's improvements, Lessee's trade fixtures, and Lessee's personal property, such excluded items being the sole responsibility of Lessee to restore. 14. SIGNS, Lessee shall not place, construct, maintain, or allow any signs upon the Premises or on the adjacent sidewalk or courtyard without prior written consent of City. 15. ASSIGNMENT AND SUBLETTING. 15.1 City's Consent Required. Lessee shall not assign this lease, nor any interest therein, and shall not sublet or encumber the Property or any part thereof, nor any right or privilege appurtenant thereto, nor allow or permit any other person(s) to occupy or use the Property, or any portion thereof, without the prior written consent of City. Such consent shall not be unreasonably withheld or delayed. This Lease shall be binding upon any permitted assignee or successor of Lessee. Consent by City to one assignment, subletting, occupation or use by another person shall not be deemed to be consent to any subsequent assignment, subletting, occupation or use by another person. No assignment, subletting, or encumbrance by Lessee shall release it from or in any way alter any of Lessee's obligations under this Lease. Lessee may have the Property delivered to a subsidiary company of Lessee, but such arrangement shall in no way alter Lessee's responsibilities hereunder with respect to the Property. Any assignment, subletting, encumbrances, occupation, or use contrary to the provisions of this Lease shall be void and shall constitute breach of this Lease. City may assign any of its rights hereunder without notice to Lessee. 15.2 No Release of Lessee. No subletting or assignment as approved by City shall release Lessee of Lessee's obligation or alter the primary liability of Lessee to pay the rent and to perform all other obligations by Lessee hereunder. The acceptance of rent by City from any other person shall not be deemed to be a waiver by City of any provision hereof. In the event of default by any assignee of Lessee or any successor of Lessee in the performance of any of the terms hereof, City may proceed directly against Lessee without the necessity of exhausting remedies against said assignee. 16. DEFAULTS; REMEDIES. 16.1 Defaults. The occurrence of any one or more of the following events shall constitute a material default, or breach of this Lease, by Lessee: 14 Rev. Jan. 29, 2012 Attachment C 16.1.1 Abandonment of the Premises by Lessee as defined by California Civil Code section 1951.3; 16,1.2 Failure by Lessee to make any payment of rent or any other payment required to be made by Lessee hereunder, as provided in this Lease, where such failure shall continue for a period of three (3) business days after written notice thereof from City to Lessee. In the event City serves Lessee with a Notice to Pay Rent or Quit pursuant to applicable Unlawful Detainer statutes, such Notice to Pay Rent or Quit shall also constitute the notice required by this subparagraph; 16.1.3 Failure by Lessee to observe or perform any of the covenants, conditions or provisions of this Lease in any material respect where such failure shall continue for a period of thirty (30) days after written notice thereof from City to Lessee; provided, however, that if the nature of Lessee's default is such that more than thirty (30) days are reasonably required for its cure, then Lessee shall not be deemed to be in default if Lessee commenced such cure within said thirty (30) day period and thereafter diligently prosecutes such cure to completion; 16.1.4 Making by Lessee of any general arrangement or assignment for the benefit of creditors; Lessee's becoming a "debtor" as defined in 11 U.S.C. §101 or any successor statute thereto (unless, in the case of a petition filed against Lessee, the same is dismissed within sixty (60) days); the appointment of a bankruptcy trustee or receiver to take possession of all or substantially all of Lessee's assets located at or on the Premises, or of Lessee's interest in this Lease where possession is not restored to Lessee within thirty (30) days; or the attachment, execution or other judicial seizure of all or substantially all of Lessee's assets located at or on the Premises or of Lessee's interest in this Lease, where such seizure is not discharged within thirty (30) days. 16.2 Remedies. In the event of any material default or breach by Lessee, City may at any time thereafter, following any notice required by statute, and without limiting City in the exercise of any right or remedy which City may have by reason of such default or breach: 16.2.1 Terminate Lessee's right to possession of the Premises by any lawful means, in which case this Lease shall terminate and Lessee shall immediately surrender possession of the Premises and Improvements to City. In such event, City shall be entitled to recover from Lessee all damages incurred by City by reason of Lessee's default including but not limited to: the cost of recovering possession of the Premises and Improvements; expenses of reletting, including necessary renovation and alteration of the Premises and Improvements; reasonable attorneys' fees; the worth at the time of the award of the unpaid rent that had been earned at the time of termination of this Lease and the worth at the time of award of the amount by which the unpaid rent for the balance of the term after the time of such award exceeds the amount of such rental loss for the same period that Lessee proves could be reasonably 15 Rev. Jan. 29, 2012 O Attachment C () avoided. 16.2.2 Maintain Lessee's right to possession, in which case this Lease shall continue in effect whether or not Lessee shall have abandoned the Premises. In such event, City shall be entitled to enforce all of City's rights and remedies under this Lease, including the right to recover rent and other payments as they become due hereunder. 16.2.3 Pursue any other remedy now or hereafter available to City under the laws or judicial decisions of the State of California. City shall have all remedies provided by law and equity. 16.3 No Relief from Forfeiture After Default. Lessee waives all rights of redemption or relief from forfeiture under California Code of Civil Procedure sections 1174 and 1179, and any other present or future law, in the event Lessee is evicted or City otherwise lawfully takes possession of the Premises by reason of any default or breach of this Lease by Lessee. 16.4 Disposition of Abandoned Personal Property. If the Lessee fails to remove any personal property belonging to Lessee from the Premises after forty-five (45) days of the expiration or termination of this Lease, such property shall at the option of City be deemed to have been transferred to City. City shall have the right to remove and to dispose of such property without liability to Lessee or to any person claiming under Lessee, and the City shall have no need to account for such property. 17. INTEREST ON PAST -DUE OBLIGATIONS. Except as expressly provided herein, any amount due City when not paid when due shall bear interest at the lesser of ten percent (10%) per year or the maximum rate then allowable by law from the date due, 18. 7 HOLDING OVER. If Lessee remains in possession of the Premises or any part thereof after the expiration of the term or option term hereof, such occupancy shall be a holdover tenancy from month to month with all the obligations of this Lease applicable to Lessee. Nothing contained in this Lease shall give to Lessee the right to occupy the Property after the expiration of the term, or upon an earlier termination for breach. 19. CITY'S ACCESS. 19.1 Access for Inspection. City and City's agents shall, have the right to enter the Premises at reasonable times, upon' not less than twenty-four (24) hours prior notice to Lessee, for the purpose of inspecting same, showing same to prospective purchasers, lenders or lessees, and making such alterations, repairs, improvements, or additions to the Premises as City may 16 Rev. Jan. 29, 2012 Attachment C deem necessary. However, City and City's agents shall have the right to enter the Premises at any time for emergency situations that may involve property damage such as flooding. City may at any time place on or about the Premises any ordinary [For SaleLl signs and City may at any time during the last one hundred twenty (120) days of the term hereof place on or about the Premises any ordinary ❑For LeaseCl signs, all without rebate of rent or liability to Lessee. 19.2 Security Measures. City shall have the right to require a reasonable security system, device, operation, or plan be installed and implemented to protect the Premises or the Improvements. Should City, in its sole discretion, require Lessee to install such a security system, Lessee agrees to bear the sole cost and expense of any security system, device, operation or plan and the installation and implementation thereof. Lessee shall obtain City's prior approval before installing, implementing or changing any City approved security system, device, operation or plan. 19.3 New Locks. Lessee may install new locks on all exterior doors. Lessee shall advise City of such action and shall provide City with keys to said locks. Lessee shall also deliver to City the old locks with keys. Upon termination, Lessee shall leave new locks that shall become the property of City. Lessee may not install their own locks. City will maintain all lock hardware and rekey locks as required. City may charge for excess key request. 20. INSURANCE. Lessee's responsibility for the Premises begins immediately upon Delivery Date and Lessee, at its sole cost and expense, and at no cost to City, shall purchase and maintain in full force and effect from that date forward and 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 C. Lessee also agrees to secure renter's liability insurance. Lessee shall deposit with the City Manager, on or before the Delivery Date, 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 17 Rev. San. 29, 2012 Attachment C 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. 21. INTENTIONALLY OMITTED. 22. EMINENT DOMAIN. 22.1 If all or any part of the Premises (or the building in which the Premises are located) is condemned by a public entity in the lawful exercise of its power of eminent domain, this Lease shall cease as to the part condemned. The date of such termination shall be the effective date of possession of the whole or part of the Premises by the condemning public entity. 22.2 If only a part is condemned and the condemnation of that part does not substantially impair the capacity of the remainder to be used for the purposes required by this Lease, Lessee shall continue to be bound by the terms, covenants, and conditions of this Lease. However, the then monthly rent shall be reduced in proportion to the diminution in value of the Premises. If the condemnation of a part of the Premises substantially impairs the capacity of the remainder to be used for the purposes required by this Lease, Lessee may: A. Terminate this Lease and thereby be absolved of obligations under this Lease which have not accrued as of the date of possession by the condemning public entity; or B. Continue to occupy the remaining Premises and thereby continue to be bound by the terms, covenants and conditions of this Lease. If Lessee elects to continue in possession of the remainder of the Premises, the monthly rent shall be reduced in proportion to the diminution in value of the Premises. C. Lessee shall provide City with written notice advising City of Lessee's choice within thirty (30) days of possession of the part condemned by the condemning 18 Rev. Jan. 29, 2012 Attachment C public entity. 22.3 City shall be entitled to and shall receive all compensation related to the condemnation, except that Lessee shall be entitled to: (a) that portion of the compensation which represents the value for the remainder of the Lease term of any Lessee -constructed improvements taken by the condemning public entity, which amount shall not exceed the actual cost of such improvements reduced in proportion to the relationship of the remaining Lease term to the original Lease term, using a straight line approach; and (b) any amount specifically designated as a moving allowance or as compensation for Lessee's personal property. Lessee shall have no claim against Landlord for the value of any unexpired term of this Lease. 23. POST -ACQUISITION TENANCY. Lessee hereby acknowledges that Lessee was not an occupant of the Premises at the time the Premises were acquired by City. Lessee further understands and agrees that as a post -acquisition Lessee, Lessee is not eligible and furthermore waives all claims for relocation assistance and benefits under federal, state or local law. 24. NON -LIABILITY OF OFFICIALS AND EMPLOYEES OF THE CITY. No official or employee of City shall be personally liable for any default or liability under this agreement. 25. NON-DISCRIMINATION 25.1 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 ofthe 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. 25.2 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." 26. INDEPENDENT CONTRACTOR. It is agreed that Lessee shall act and be an independent contractor and not an agent nor employee of City. 19 Rev. Jan. 29, 2012 Attachment C 27. CONFLICT OF INTEREST. Lessee shall at all times avoid conflict of interest or appearance of conflict of interest in per forniance of this agreement. Lessee warrants and covenants that no official or employee of City nor any business entity in which any official or employee of City is interested: (1) has been employed or retained to solicit or aid in the procuring of this agreement; or (2) will be employed in the performance of this agreement without the divulgence of such fact to City. In the event that City determines that the employment of any such official, employee or business entity is not compatible with such official's or employee's duties as an official or employee of City, Lessee upon request of City shall immediately terminate such employment. Violation of this provision constitutes a serious breach of this Lease and City may terminate this Lease as a result of such violation. 28. MEMORANDUM OF LEASE. Following execution of this Lease, either party, at its sole expense, shall be entitled to record a Memorandum of Lease in the official records of Santa Clara County. Upon termination or expiration of this Lease, Lessee shall execute and record a quitclaim deed as to its leasehold interest. 29. ESTOPPEL CERTIFICATE. Lessee shall, from time to time, upon at least thirty (30) days prior written notice from City, execute, acknowledge and deliver to City a statement in writing: (i) certifying this Lease is unmodified and in full force and effect, or, if modified, stating the nature of the modification and certifying that the Lease, as modified, is in full force and effect, and the date to which the rental and other charges, if any, have been paid; and, (ii) acknowledging that there are not to Lessee's knowledge, any defaults, or stating if any defaults are claimed, any statement may be relied upon by any prospective purchaser or encumbrancer of the City Property. 30. LIENS. Lessee agrees at its sole cost and expense to keep the Property free and clear of any and all claims, levies, liens, encumbrances or attachments. 31. VACATING. Upon termination of the tenancy, Lessee shall completely vacate the Property, including the removal of any and all of its property. Before departure, Lessee shall return keys and personal property listed on the inventory to City in good, clean and sanitary condition, reasonable wear and tear excepted. Lessee shall allow City to inspect the Property to verify the condition of the Property and its contents. 32. ABANDONMENT. 2 0 Rev. Jan. 29, 2012 Attachment C Lessee's absence from the Property for ten (10) consecutive days, without prior notice, during which time rent or other charges are delinquent, shall be deemed abandonment of the Property. Such abandonment will be deemed cause for immediate termination without notice. City shall thereupon be authorized to enter and take possession and to remove and dispose of the property of Lessee or its guests without any liability whatsoever to City. 33. NOTICES. All notices to the Parties shall, unless otherwise requested in writing, be sent to City addressed as follows: City of Palo Alto Attention: Real Property Manager 250 Hamilton Avenue Palo Alto, CA 94301 Donna.Hartman@CityofPaloAlto.org CityofPaloAlto.org And to Lessee addressed as follows: Name: Ada's Cafe 839• Northampton Drive Palo Alto, CA 94303 Phone: 650-269-5505 Email: adascafe@att.net Cell phone: 650-269-5505 Notices may be served upon Lessee in person or by certified mail whether or not said notice or mailing is accepted by Lessee. If notice is sent via facsimile, a signed, hard copy of the material shall also be mailed. The workday the facsimile was sent shall control the date notice was deemed given if there is a facsimile machine generated document on the date of transmission. A facsimile transmitted after 1:00 p.m. on a Friday shall be deemed to have been transmitted on the following Monday. These addresses shall be used for service of process. 34. TIME. Time shall be of the essence in this Lease. 35. AMENDMENTS. It is mutually agreed that no oral Leases have been entered into and that no alteration or variation of the terms of this Lease shall be valid unless made in writing and signed by the Parties to this Lease. 36. SIGNING AUTHORITY. 21 Rev. Jan. 29, 2012 Attachment C If this Lease is not signed by all Lessees named herein, the person actually signing warrants that he/she has the authority to sign for the others. 37. CAPTIONS. The captions of the various sections, paragraphs and subparagraphs of this Lease are for convenience only and shall not be considered or referred to in resolving questions of interpretation. 38. SURRENDER OF LEASE NOT MERGER. The voluntary or other surrender of this lease by Lessee, or a mutual cancellation thereof, shall not work a merger, and shall, at the option of City, terminate all or any existing subleases or sub tenancies, or may, at the option of City, operate as an assignment of any and all such subleases or sub tenancies. 39. INTEGRATED DOCUMENT. This Lease, including any exhibits attached hereto, embodies the entire agreement between City and Lessee. No other understanding, agreements, conversations or otherwise, with any officer, agent or employee of City prior to execution of this Lease shall affect or modify any of the terms or obligations contained in any documents comprising this Lease. Any such verbal agreement shall be considered as unofficial information and in no way binding upon City. All agreements with City are subject to approval of the City Council before City shall be bound thereby. 40. WAIVER. Waiver by City of one or more conditions of performance or any breach of a condition under this Lease shall not be construed as a waiver of any other condition of performance or subsequent breaches. The subsequent acceptance by a Party of the performance of any obligation or duty by another Party shall not be deemed to be a waiver of any term or condition of this Lease. The exercise of any remedy, right, option or privilege hereunder by City shall not preclude City from exercising the same or any and all other remedies, rights, options and privileges hereunder and City's failure to exercise any remedy, right, option or privilege at law or equity, or otherwise which City may have, shall not be construed as a waiver. 41. INTERPRETATIONS. In construing or interpreting this Lease, the word "or" shall not be construed as exclusive and the word "including" shall not be limiting. The Parties agree that this Lease shall be fairly interpreted in accordance with its terms without any strict construction in favor of or against any other Party. 42. SEVERABILITY CLAUSE. 22 Rev. Jan. 29, 2012 Attachment C If any provision of this Lease is held to be illegal, invalid or unenforceable in full or in part, for any reason, then such provision shall be modified to the minimum extent necessary to make the provision legal, valid and enforceable, and the other provisions of this Lease shall not be affected thereby. 43. GOVERNING LAW. This Lease shall be governed and construed in accordance with the statutes and laws of the State of California. 44. VENUE. In the event that suit shall be brought by any Party to this Lease, the Parties agree that venue shall be exclusively vested in the state courts of the County of Santa Clara. 45. COMPLIANCE WITH LAWS. The Parties hereto shall comply with all applicable laws, ordinances, codes and regulations of the federal, state and local governments in the performance of their rights, duties and obligations under this Lease. Lessee hereby agrees to specifically comply with maintenance of the grease control devise as required under Palo Alto Municipal Code Section 16.09.075 Food Service Establishments. 46. BROKERS. Each party represents that is has not had dealings with any real. estate broker, finder, or other person, with respect to this lease in any manner. Each Party shall hold harmless the other party from all damages resulting from any claims that may be asserted against the other party by any broker, finder, or other person with whom the Indemnifying Party has or purportedly has dealt. 47. LIMITATION OF LEASEHOLD This Lease and the rights and privileges granted Lessee in and to the Premises are subject to all covenants, conditions, restrictions, and physical encumbrances, governing the Center. Nothing contained in this Lease or in any document related hereto shall be construed to imply the conveyance to Lessee of rights in the Premises which exceed those owned by City. 48. TERMINATION OF PRIOR AGREEMENTS This Lease supersedes any and all prior leases entered into by City for use of the Premises. All such prior leases or agreements are null and void. 49. ATTACHMENTS TO LEASE. The following exhibits are attached to and made a part of this Agreement: 23 Rev. Jan. 29, 2012 C) Attachment C "A" -- Description of Subject Property "B" -- Inventory of Fixtures "C" -- Standard Insurance Requirements "D" — Operational Requirements 24 Rev. Jan. 29, 2012 Attachment C IN WITNESS WHEREOF, the parties have executed this Lease the day and year first above written. CITY: CITY OF ALO ALT. (LESO . .. . . . .. . .. . . >City Manager or Designee APPROVED AS TO FORM: By: Senior Asst. City Attorney RECOM DATION FOR APPROVAL: By: C.N` -{4, -Comna nity services ministrative Services LESSEE: By: 14 44, Ada's Cafe - Executive Direc r 25 Rev. Jan. 29, 2012 F, () Attachment C C� SAMPLE LEASE AGREEMENT BETWEEN CITY OF PALO ALTO AND Ada's Cafe EXHIBIT A DESCRIPTION OF SUBJECT PROPERTY ( _T! N PLAN 1.1 Premises Lease Agreement/Ada's Exhibit A Page 26 Attachment C LEASE AGREEMENT BY AND BETWEEN CITY OF PALO ALTO, CALIFORNIA AND Ada's Cafe EXHIBIT B INVENTORY OF FIXTURES PLUMBED FIXTURE SPECIFICATIONS (SEE FS3.0) KEY DESCRIPTION ALL EQUIPMENT PROVIDED BY TENANT / OMHER P1 WATER FILTRATION SYSTEM (IN UPPER CABINET) WATER FIL*4TIQN SYSTEM (BELOW CABINET) STAINLESS STEEL 3 COMP. SINK WAIN FAUCET to 2 GRAIN BD. HOT NAZI HEATER S.P.D FOR LOCATION AND SIZE A.00R DRAIN PROVIDED BY / MFG. EVERPURE EVERPURE MIASITA GC SEM CONNECTION S.P.D PART # G� EV-9x72 • BLDG Ev-9272 _fx STAINLESS STEEL WALL MOUNTED HAND SINE! Wf FAUCET; SOAP & P.TONELS DROP IN SS DIPPER WELL FLOOR SINKS ADVANCE TABCO R SS MOP SINK CABINET W/ WAIL MOUNTED FAUCET SS DROP IN RINSE SINK FISHER S.P.D Center improvements) DRAIN • BLDG • P4 —BLDG • BLDG • FROM P3 • S.P.O 7 -PS -69 • P4 —BLDG 3041 • P4 —BLOC _16' _ _ • P8 • P4 —BLDG • SWR • P8 • P9 • _'.D ▪ PG • S A% • P4 —BLDG • P9 Lease AgreementlAda's Exhibit B Page 27 Attachment C LEASE AGREEMENT BY AND BETWEEN CITY OF PALO ALTO, CALIFORNIA AND Ada's Cafe EXHIBIT C STANDARD INSURANCE REQUIREMENTS Insurance Requirements for Lessee: Lessee shall purchase and maintain the insurance policies set forth below on all of its operations under this Lease at its sole cost and expense. Such policies shall be maintained for the full term of this Lease and the related warranty period (if applicable). For purposes of the insurance policies required under this Lease, the term "City" shall include the duly elected or appointed council members, commissioners, officers, agents, employees and volunteers of the City of Palo Alto, California, individually or collectively. Coverages (RL 28.1A) S Minimum Scope of Insurance Coverage shall be at least as broad as: 1) Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001). 2) Insurance Services Office form number CA 0001 (Ed. 1/87) covering Automobile Liability, code 1 (any auto). 3) Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance (for lessees with employees). 4) Property insurance against all risks of loss to any Lessee improvements or betterments The policy or policies of insurance maintained by Lessee shall provide the following limits and coverages: POLICY MINIMUM LIMITS OF LIABILITY (1) Commercial General Liability $1,000,000 per each occurrence for bodily injury, personal injury and property damage (2) Automobile Liability $ 1,000,000 Combined Single Limit Lease Agreement/Ada's Exhibit C Page 28 Attachment C Including Owned, Hired and Non -Owned Automobiles (3) Workers' Compensation Employers Liability Statutory $1,000,000 per accident for bodily injury or disease (4) Lessee's Property Insurance Lessee shall procure and maintain property insurance coverage for: (a) all office furniture, trade fixture, office equipment, merchandise, and all other items of Lessee's property in, on, at, or about the premises and the building, include property installed by, for, or at the expense of Lessee; (b) all other improvements, betterments, alterations, and additions to the premises. Lessee's property insurance must fulfill the following requirements: (a) it must be written on the broadest available "all risk" policy form or an equivalent form acceptable City of Palo Alto, including earthquake and sprinkler leakage. (b) for no less than ninety percent (90%) of the full replacement cost (new without deduction for depreciation) of the covered items and property; and (c) the amounts of coverage must meet any coinsurance requirements of the policy or policies. (RL 28.2) Deductibles and Self -Insured Retentions Any deductibles or self -insured retentions must be declared to and approved by the City. At the option of the City either: the insurer shall reduce or eliminate such deductibles or self -insured retentions as respects the City, its officers, officials, employees and volunteers; or the Lessee shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. Insurance shall be in full force and effect commencing on the first day of the term of this Lease. Each insurance policy required by this Lease shall: 1. Be endorsed to state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the City. 2. Include a waiver of all rights of subrogation against the City and the members of the City Council and elective or appointive officers or employees, and each party shall Lease AgreementiAda's Exhibit C Page 29 C) Attachment C indemnify the other against any loss or expense including reasonable attorney fees, resulting from the failure to obtain such waiver. 3. Name the City of Palo Alto as a loss payee on the property policy. 4. Provide that the City, its officers, officials, employees, agents and volunteers are to be covered as insureds as respects: liability arising out of activities performed by or on behalf of the Lessee; products and completed operations of the Lessee; premises owned, occupied or used by the Lessee; or automobiles owned, leased, hired or borrowed by the Lessee. The coverage shall contain no special limitations on the scope of protection afforded to the City, its officers, officials, employees, agents or volunteers. 5. Provide that for any claims related to this Lease, the Lessee's insurance coverage shall be primary insurance as respects the City, its officers, officials, employees, agents and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, agents or volunteers shall be excess of the Lessee's insurance and shall not contribute with it. 6. Provide that any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to the City, its officers, officials, employees, agents or volunteers. 7. Provide that Lessee's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. 8. Lessee agrees to promptly pay to City as Additional Rent, upon demand, the amount of any increase in the rate of insurance on the Premises or on any other part of Building that results by reason of Lessee's act(s) or Lessee's permitting certain activities to take place. Acceptability of Insurers All insurance policies shall be issued by California -admitted carriers having current A.M. Best's ratings of no lower than A -:VII. Lease Agreement/Ada's Exhibit C Page 30 () Attachment C LEASE AGREEMENT BY AND BETWEEN CITY OF PALO ALTO, CALIFORNIA AND Ada's Cafe EXHIBIT D OPERATIONAL REQUIREMENTS 1. Catering Kitchen: Lessee shall enter into agreement with City's Manager, Mitchell Park Community Center, or designee for use of the Catering Kitchen. Terms of the agreement shall provide Lessee with use of the kitchen from 4:00 a.m. to 8 a.ni. and non-exclusive access to and/or use of the kitchen during the remainder of the day, as approved and scheduled by the Mitchell Park Community Center Manager or designee. The City shall attempt to allow Lessee exclusive use of the Catering Kitchen from 4:00 a.m. to 8:00 a.m., but, from time to time, there may be uses that will require shared use of the kitchen during limited times. The parties will jointly develop guidelines to address such shared use. Lessee shall pay $250 per month for use of the kitchen during this designated period. Additional use outside of the designated use period of 4:00 a.m. and 8:00 a.m. shall be billed according to the non-profit hourly room rate adopted in the Palo Alto Municipal Fee Schedule. Lessee will maintain and clean the kitchen after each use and leave it ready for use by other authorized users. 2. Patio Space: Lessee shall obtain approval from City to use six hundred (600) square feet of outdoor space adjacent to the Premises for food and beverage service and customer dining. Such use shall not interfere with any access to the Center and any outdoor furniture will be consistent with the City's planned finishes. Lessee intends to place up to 6 tables with 24 chairs as well as heaters, sun shade umbrellas and similar customer service equipment in the patio area and to store such equipment outdoors in accordance with City approval. The City shall develop guidelines for the use of such outdoor space and Lessee's approval to use such space shall be subject to such guidelines. 3. Prior to the retail opening, the City shall develop operational guidelines for the catering kitchen, patio space and cafe. These guidelines, which may be modified by City from time, to time, shall become part of the Lease and Lessee shall abide to them. Before finalizing the guidelines, the City shall meet and confer with Lessee. Lease AgreexnentlAda's Exhibit D Page 31 Attachment C CITY OF PALO ALTO City of Palo Alto (ID # 5332) City Council Staff Report Report Type: Action Items Meeting Date: 12/15/2014 Summary Title: Avenidas Fifty (50) Year Lease at 450 Bryant Street Title: PUBLIC HEARING: Approval of a New Fifty (50) Year Lease to Avenidas for City owned Property at 450 Bryant Street to Allow the Continued Use of the Building to Provide Senior Services From: City Manager Lead Department: Administrative Services RECOMMENDATION Staff recommends that the City Council authorize the City Manager to approve a new, fifty (50) year lease agreement (Attachment A) between the City of Palo Alto and Avenidas and cancel the existing lease for the City owned property at 450 Bryant Street, Palo Alto. EXECUTIVE SUMMARY Fifty years ago, senior services in Palo Alto were scattered at different locations. Presently, many services and programs for older adults on the Mid -Peninsula, as well as other information resources, are housed and centralized at Avenidas. For the past five decades, Avenidas has been providing seniors services to the community at the 450 Bryant Street site as a part of a longstanding collaboration with the City. The current location is ideal in terms of the downtown location, accessibility to parking, and proximity to public transit. The existing lease between the City and Avenidas was executed on May 11, 1977 and it will end on May 10, 2027 (a 50 year lease). On June 23, 2014, the City Council approved the process of awarding a new lease to Avenidas. Staff has undertaken and completed the process required by the City's Policy and Procedure (1-11/ASD), (Attachment B) for leased use of City land and Facilities. The approval of the new fifty (50) year lease will allow Avenidas to undertake a major fund raising effort for rehabilitation and modernization of the interior of the building in order to meet the growing needs of the City's seniors and to continue its many vital senior services for many years into the future. BACKGROUND The City established its own Senior Adult Services in 1971, based on a study of Palo Alto senior residents completed by the Senior Coordinating Council (SCC), and witnessed an expansion of those services over the next few years. The City funded the SCC administration, Senior Day City of Palo Alto Page 1 Care (now Day Health) Program and Home Repair Service prior to the establishment of the Senior Center of Palo Alto, while concurrently funding its own Senior Adult Services. After numerous discussions, the City agreed to lease the historic, former Police/Fire Station building (450 Bryant Street) to the SCC at a nominal yearly fee provided that the SCC raised the necessary funds ($1.2 million) to renovate the facility. Implicit in this agreement was a commitment to help the SCC with operating funds for the Senior Center as well as continuing support for its other programs. In 1978, the City transferred its Senior Adult Services to the SCC and provided funds for the operation of the Senior Center. Avenidas received funding as part of a grant administered by the Community Services Department starting in 1978. In 1978, following a $1.2 million fundraising effort to renovate the building, the Senior Center opened in the City's former Police and Fire Station building. That year also marked the beginning of the public -private partnership between Avenidas and the City of Palo Alto. The City and the SCC agreed that the SCC would always make substantial efforts to secure community support and other non -city public funds. That objective has remained part of the SCC's contract Scope of Services. A 1986 evaluation of the SCC conducted by a City -retained outside consultant reported that the SCC had become an established part of the community and that the SCC's administrative component represented one of the most important tools for leveraging the dollars the City devotes to senior services. Avenidas now serves more than 6,000 people from southern San Mateo County to northern Santa Clara County. It is the place to go for information, services, and activities for older adults. Avenidas provides classes, lectures, health screenings, social work services, information and assistance, transportation, handyman services, volunteer opportunities, adult day health and day care, and caregiver services. DISCUSSION On April 16, 2014, Avenidas requested a new 50 year lease to replace the existing one which is set to expire in May 10, 2027. The purpose of the extension is twofold: 1) It allows Avenidas the foundation to begin credible fund raising efforts for an estimated $12 million to undertake a major and comprehensive rehabilitation and modernization of the building at 450 Bryant Street; 2) the new lease will serve to assure that Avenidas will continue its services at the present location for many years to come. Avenidas understands that it must comply with the City's planning and permitting processes in making improvements to the building it now occupies. These requirements would apply to any occupant making physical changes to the facility. According to the City's Policy and Procedures regarding leased use of City land, there are two ways to award long term leases. The first method is through a formal Request for Proposal and the second is by providing a public notice that the City intends to award a lease to a particular City of Palo Alto Page 2 tenant and conducting a public hearing to elicit public comment. Traditionally staff has used this second process for awarding leases to non-profit agencies that provide local community services. The City Charter limits the City to a fifty (50) year lease term. The City can award a long-term lease, however, by Staff has completed the required process and public noticing that the City intends to issue a fifty (50) year lease to Avenidas. The City issued such public notices four times in the local newspaper (Palo Alto Weekly) and copy of the public notices were sent to property owners and tenants within 300 feet of the subject property. There were no inquires or request for the 450 Bryant Street location other than Avenidas. Avenidas will assume all responsibility for the maintenance, repair, upkeep and the cost of capital improvement (excluding the roof) for the premises at 450 Bryant Street during the term of the new lease. TIMELINE The new lease will go into effect following the mutual cancellation of the existing lease between the City and Avenidas. RESOURCE IMPACT At this time there is no budget impact from this report. The City will continue to lease the Property to Avenidas at the annual rate of one ($1.00) a year. POLICY IMPLICATIONS Entering into a new Lease Agreement is consistent with policies and programs in the Comprehensive Plan promoting City-Avenidas collaboration and the effective provision of community services. ENVIRONMENTAL REVIEW Extension or re -negotiation of an existing lease and agreement is exempt from the California Environmental Quality Act (CEQA) under 15061 of the CEQA Guidelines. Attachments: • ATTACHMENT A: Avenidas Lease Agreement Final 2015 (PDF) • ATTACHMENT B: Policy and Procedure Leased Use of City and Land Facilities (PDF) City of Palo Alto Page 3 LEASE AGREEMENT TEMPLATE -USER INSTRUCTIONS WHEN TO USE FORM: This form should only be used when the City is leasing City owned property to someone else. If the City is leasing property from a private party DO NOT USE this form. HOW TO COMPLETE FORM: To use this form, you will need to fill in the information requested in bold. Below is a summary of the major items of information and lease references that will need to be customized before completing the agreement: o Tenant: Avenidas o Address of Property: 450 Bryant Street, Palo Alto, CA 94301 o Square Footage and Description of Property: Approximately 17,400 Square Feet of Office Building Located o Lease Term with Start and End: o Length of Option Period. N/A o Monthly Rent: $1.00 & Yearly o Amount of Security Deposit: None o Required Uses of Property: Office & Administration functions to run a community center that provides services to seniors in the area o Who Will Pay Utilities: Tenant o Who Will Perform Maintenance: Refer to the lease section 9 o Who Will Maintain Common and other Areas: Refer to lease section 9 o What Construction Lessee Will Perform, Permission Needed, and End Date: N/A o What Construction Cost Requires City Approval: N/A o Parcel Map of Property (Exhibit A) o General Map (Exhibit B) o Premise (Exhibit C) o Insurance (Exhibit D) o Parking Map (Exhibit E) Page 1 of 29 LEASE AGREEMENT BETWEEN CITY OF PALO ALTO AND AVENIDAS TABLE OF CONTENTS LEASE PROVISIONS 1. PREMISES. 2. TERM. I RENT 4. SECURITY DEPOSIT 5. USE OF PROPERTY 6. HAZARDOUS MATERIALS 7. UTILITIES AND OPERATING EXPENSES 8. TAXES 9. MAINTENANCE 10. ALTERATIONS BY LESSEE 11. CONSTRUCTION BY LESSEE 12. HOLD HARMLESS/INDEMNIFICATION 13. DAMAGE, DESTRUCTION AND TERMINATION 14. SIGNS 15. ASSIGNMENT AND SUBLETTING 16. DEFAULTS; REMEDIES 17. INTEREST ON PAST -DUE OBLIGATIONS 18. HOLDING OVER 19. CITY'S ACCESS 20. INSURANCE 21. RESERVATION OF AVIGATIONAL EASEMENT 22. EMINENT DOMAIN Page 2 of 29 23. POST -ACQUISITION TENANCY 24. DISPUTE RESOLUTION 25. NON -LIABILITY OF OFFICIALS AND EMPLOYEES OF THE CITY 27. INDEPENDENT CONTRACTOR 28. CONFLICT OF INTEREST 29. MEMORANDUM OF LEASE 30. ESTOPPEL CERTIFICATE 31. LIENS 32. VACATING 33. ABANDONMENT 34. NOTICES 35. TIME 36. AMENDMENTS 37. SIGNING AUTHORITY 38. CAPTIONS 39. SURRENDER OF LEASE NOT MERGER 40. INTEGRATED DOCUMENT 41. WAIVER 42. INTERPRETATIONS 43. SEVERABILITY CLAUSE 44. GOVERNING LAW 45. VENUE 46. COMPLIANCE WITH LAWS 47. BROKERS 48 PARKING 49. AMENDMENTS 50. ATTACHMENTS TO LEASE 51. EXHIBITS Page 3 of 29 LEASE AGREEMENT BETWEEN CITY OF PALO ALTO AND AVENIDAS This lease agreement (herein "Lease") is made and entered into this 1St, day of , 2015, by and between the City of Palo Alto, a California chartered municipal corporation (herein "City") and Avenidas, a non- profit, tax-exempt organization, (herein "Lessee"). City and Lessee may be referred to individually as a "Party" or collectively as the "Parties" or the "Parties to this Lease." The City Manager serves as Contract Administrator for this Lease on behalf of the City Council. RECITALS This Agreement is made with respect to the following facts: A. The City is the fee simple owner of the real property located at 450 Bryant Street, Palo Alto, situated County of Santa Clara, State of California, Assessor's Parcel Number 120- 26-095 and site plan shown respectively on Exhibit "A" and Exhibit "B" of this Agreement (the "Property") B. Avenidas, a non-profit organization has been a tenant of the City at the Property since May of 1977 and the current lease with the City is set to expire on May of 2027. C. In order continue to provide quality services for the seniors in the area over a long term horizon, Avenidas has requested a new lease with a term of 50 years. D. Lessee desires to continue to occupy and use the Property which consists of a community center of approximately 17,400 square feet, more particularly described and shown in Exhibit "C" of this Agreement (the "Premise"), for the general purpose of providing services and activities to help older adults stay active, healthy, engaged and independent. E. The Parties are willing to terminate the current lease and City is willing to grant a new Lease to Lessee for the specific and limited uses described in this Agreement. Now, therefore, in consideration of these recitals and the following covenants, terms, and conditions, Lessee and City mutually agree as follows: Page 4 of 29 LEASE PROVISIONS 1. PREMISES. City hereby leases to Lessee, certain real property located in the City of Palo Alto, County of Santa Clara, State of California, commonly known as Avenidas and more particularly shown in Exhibit "C" attached hereto and incorporated herein by reference. The Property consists of approximately 17,400 -square feet of space. Unless specifically provided, Lessee accepts the Premise "as -is" on the date of execution of this Lease. 2. TERM. 2.1 Original Term. The term of this Lease shall be for fifty (50) years, commencing on --------- and ending on Lessee shall, at the expiration of the term of this lease, or upon its earlier termination, surrender the Property in as good condition as it is now at the date of this lease. The Parties expect reasonable wear and tear. 2.3 Early Termination by City. Intentionally Deleted. 3. RENT. 3.1 Base Rent. The rent to be paid by Lessee shall be at $1.00 per year in advance on or before the first day of July of every calendar year during the term of this lease. 4. SECURITY DEPOSIT. Not Applicable. 5. USE OF PROPERTY. 5.1 Permitted Uses. Avenidas shall use the Premises for the purpose of providing support services to older adults and their caregivers, including but not limited to Lifelong Learning and Leisure programs, Health and Wellness services, Social Work services, Transportation and Handyman services and Volunteer programs, and Lessee may also use the Premises for the following uses: staff development, employee training, program review, meetings with business contacts Avenidas, and any other legally related use. Lessee may also rent rooms for occasional use to support its operation. The Premises may not be used for any other purposes without City's prior written consent, which consent may be withheld in the sole and absolute discretion of the City. 5.2. Intent of the Use. It is the further intent of the City and Lessee that Lessee is primarily responsible for the identification of sources and for the securing of commitments for the funds necessary to bring together on the premises a broad range of activities and services responsive to the interest and needs of senior citizens, to mobilize the energies and talents of senior citizens, to maximize the use of community resources, and to simulate development of new programs for Page 5 of 29 senior citizens. During the terms of this lease, Lessee agrees to use the premises to maintain and operate programs for senior citizens to carry out such purposes and for no other purpose. 5.3 Annual Budget. In order to insure that the use of the Premises is in keeping with the intended uses as set forth above, Lessee annually shall present to City the annual budget of Lessee within thirty (30) days after the Lessee has approved said budget. Lessee also will present to City for its information an annual report of the operation of the Center in the form as submitted to the State of California as required for a tax-exempt organization within one hundred and eighty (180) days of the end of each budget or operating year, and such statement shall include annual financial statement of Lessee. 5.4 Prohibited Uses. Lessee shall not use Premises for any purpose not expressly permitted hereunder. Lessee shall not create, cause, maintain or permit any nuisance or waste in, on, or about the Premises, or permit or allow the Premises to be used for any unlawful or immoral purpose. Lessee shall not do or permit to be done anything in any manner which unreasonably disturbs the users of the neighboring property. Specifically, and without limiting the above, Lessee agrees not to cause any unreasonable odor, noise, vibration, power emission, or other item to emanate from the Premises. No materials or articles of any nature shall be stored outside upon any portion of the Premises. Lessee will not use Property in a manner that increases the risk of fire, cost of fire insurance or improvements thereon. No unreasonable sign or placard shall be painted, inscribed or placed in or on said Property; and no tree or shrub thereon shall be destroyed or removed (except in connection with Lessee's maintenance of, or modification to, the landscaping) or other waste committed of said Property. No motorcycles, automobiles or other mechanical means of transportation shall be placed or stored anywhere on the Property, provided that the foregoing shall in no way limit Lessee's rights to use the parking areas on the Property. No repair, overhaul or modification of any motor vehicle shall take place on the Property or the street in front of said Property. Lessee, at his/her expense, shall keep the Property in as good condition as it was at the beginning of the terms hereof, except damage occasioned by ordinary wear and tear, and except damage to the roof, the exterior walls, sidewalks and underground plumbing, which is not the fault of Lessee. 5.5 Condition, Use of Premises. City makes no warranty or representation of any kind concerning the condition of the Premises, or the fitness of the Premises for the use intended by Lessee, and hereby disclaims any personal knowledge with respect thereto, it being expressly understood by the parties that Lessee has personally inspected the Premises, knows its condition, fmds it fit for Lessee's intended use, accepts it as is, and has ascertained that it can be used exclusively for the limited purposes specified in Section 5.1. 6. HAZARDOUS MATERIALS. 6.1 Hazardous Materials Defined. The term "Hazardous Material(s)" shall mean any toxic or hazardous substance, material or waste or any pollutant or contaminant, or infectious or radioactive material, including but not limited to, those substances, materials, or wastes regulated now or in the future under any of the following statutes or regulations and any and all of those substances included within the definitions of "hazardous substances", "hazardous waste", "hazardous chemical substance or mixture", "imminently hazardous chemical substance or Page 6 of 29 mixture," "toxic substances," "hazardous air pollutant", "toxic pollutant" or "solid waste" in the (a) CERCLA or Superfund as amended by SARA, 42 U.S.C. Sec. 9601 et seq., (b) RCRA, 42 U.S.C. Sec. 6901 et seq., (c) CWA., 33 U.S.C. Sec. 1251 et seq., (d) CAA, 42 U.S.C. 78401 et seq., (e) TSCA, 15 U.S.C. Sec. 2601 et seq., (f) The Refuse Act of 1899, 33 U.S.C. Sec. 407, (g) OSHA, 29 U.S.C. 651 et seq. (h) Hazardous Materials Transportation Act, 49 U.S.C. Sec. 1801 et seq., (i) USDOT Table (40 CFR Part 302 and amendments) or the EPA Table (40 CFR Part 302 and amendments), (j) California Superfund, Cal. Health & Safety Code Sec. 25300 et seq., (k) Cal. Hazardous Waste Control Act, Cal. Health & Safety Code Section 25100 et seq., (1) Porter -Cologne Act, Cal. Water Code Sec. 13000 et seq., (m) Hazardous Waste Disposal Land Use Law, Cal. Health & Safety Code Sec. 25220 et seq., (n) Proposition 65, Cal. Health and Safety Code Sec. 25249.5 et seq., (o) Hazardous Substances Underground Storage Tank Law, Cal. Health & Safety Code Sec. 25280 et seq., (p) California Hazardous Substance Act, Cal. Health & Safety Code Sec. 28740 et seq., (q) Air Resources Law, Cal. Health & Safety Code Sec. 39000 et seq., (r) Hazardous Materials Release Response Plans and Inventory, Cal. Health & Safety Code Secs. 25500-25541, (s) TCPA, Cal. Health and Safety Code Secs. 25208 et seq., and (t) regulations promulgated pursuant to said laws or any replacement thereof, or as similar terms are defined in the federal, state and local laws, statutes, regulations, orders or rules. Hazardous Materials shall also mean any and all other substances, materials, and wastes which are, or in the future become, regulated under applicable local, state or federal law for the protection of health or the environment, or which are classified as hazardous or toxic substances, materials or wastes, pollutants or contaminants, as defined, listed or regulated by any federal, state or local law, regulation or order or by common law decision, including without limitation: (i) trichloroethylene, tetracholoethylene, perchloroethylene and other chlorinated solvents; (ii) any petroleum products or fractions thereof; (iii) asbestos, (iv) polychlorinated biphenyls; (v) flammable explosives; (vi) urea formaldehyde; and, (vii) radioactive materials and waste. 6.2. Compliance with Laws. Lessee shall not cause or permit any Hazardous Material (as defined below) to be brought upon, kept or used in or about the Premises or Project by Lessee, its agents, employees, contractors or invitees. 6.3 Termination of Lease. City shall have the right to terminate the Lease in City's sole and absolute discretion in the event that: (i) any anticipated use of the Premises by Lessee involves the generation or storage, use, treatment, disposal, or release of Hazardous Material in a manner or for a purpose prohibited or regulated by any governmental agency, authority, or Hazardous Materials Laws; (ii) Lessee has been required by any lender or governmental authority to take remedial action in connection with Hazardous Material contaminating the Premises, if the contamination resulted from Lessee's action or use of the Premises; or (iii) Lessee is subject to an enforcement order issued by any governmental authority in connection with the release, use, disposal, or storage of a Hazardous Material on the Premises, if the contamination resulted from Lessee's action or use of the Premises. 6.4 Assignment and Subletting. It shall not be unreasonable for City to withhold its consent to an assignment or subletting to such proposed assignee or sublessee if: (i) any anticipated use of the Premises by any proposed assignee or sublessee involves the generation or storage, use, treatment, disposal, or release of Hazardous Material in a manner or for any purpose; (ii) the proposed assignee or sublessees has been required by any prior landlord, lender, or governmental Page 7 of 29 authority to take remedial action in connection with Hazardous Material contaminating a property, if the contamination resulted from such party's action or use of the property in question; or, (iii) the proposed assignee or sublessee is subject to an enforcement order issued by any governmental authority in connection with the release, use, disposal or storage of a Hazardous Material. 6.5 Hazardous Materials Indemnity Lessee shall indemnify, defend (by counsel reasonably acceptable to City), protect, and hold City harmless from and against any and all claims, liabilities, penalties, forfeitures, losses, and/or expenses, including without limitation, diminution in value of the Premises, damages for the loss or restriction on use of the rentable or usable space or of any amenity of the Premises, damages arising from any adverse impact or marketing of the Premises and sums paid in settlement of claims, response costs, cleanup costs, site assessment costs, attorneys' fees, consultant and expert fees, judgments, administrative rulings or orders, fines, costs of death of or injury to any person, or damage to any property whatsoever (including, without limitation, groundwater, sewer systems, and atmosphere), arising from, caused, or resulting, either prior to or during the Lease Term, in whole or in part, directly or indirectly, by the presence or discharge in, on, under, or about the Premises by Lessee, Lessee's agents, employees, licensees, or invitees or at Lessee's direction, of Hazardous Material, or by Lessee's failure to comply with any Hazardous Materials Law, whether knowingly or by strict liability. For purposes of the indemnity provided herein, any acts or omissions of Lessee or its employees, agents, customers, sublessees, assignees, contractors, or subcontractors of Lessee (whether or not they are negligent, intentional, willful or unlawful) shall be strictly attributable to Lessee. Lessee's indemnification obligations shall include, without limitation, and whether foreseeable or unforeseeable, all costs of any required or necessary Hazardous Materials management plan, investigation, repairs, cleanup or detoxification or decontamination of the Premises, and the presence and implementation of any closure, remedial action or other required plans, and shall survive the expiration of or early termination of the Lease Term. 6.6 City's Right to Perform Tests. At any time prior to the expiration of the Lease Term, City shall have the right to enter upon the Premises in order to conduct tests of water and soil. 7. UTILITIES AND OPERATING EXPENSES. 7.1. Operating Cost. City shall furnish to the Property reasonable quantities of gas, electricity, water, sewer and refuse collections services as required for Lessee's use. The Lessee shall also be allowed use of internet access as exists within the Premises. However, if City is required to construct new or additional utility installations, including, without limitation, wiring, plumbing, conduits, and mains, resulting from Lessee's special requirements, Lessee shall on demand pay to City the total cost of such items. Lessee agrees to pay for all water, gas, heat, electricity, power, light, telephone service, garbage removal, or other public utility service used during the term of this lease; provided, however, Lessee shall pay twenty —five percent (25%) of any monthly City utilities charges for the Premises, and City shall pay the remaining seventy five percent (75%) of the monthly City utilities charges from City's General Fund. Lessee agrees to employ sound and innovative conservation practices in addition to abiding by all City conservation requirements. Page 8 of 29 8. TAXES. 8.1 Real Property Taxes Defined. The term "real property taxes" as used herein shall mean all taxes, assessments, levies and other charges, general and special, foreseen and unforeseen, now or hereafter imposed by any governmental or quasi -governmental authority or special district having the direct or indirect power to tax or levy assessments, which are levied or assessed against or with respect to: (i) value, occupancy, use or possession of the Premises and/or the Improvements; (ii) any improvements, fixtures, equipment and other real or personal property of Lessee that are an integral part of the Premises; or, (iii) use of the Premises, Improvements public utilities or energy within the Premises. The term "real property taxes" shall also mean all charges, levies or fees imposed by reason of environmental regulation or other governmental control of the premises and/or the Improvements, new or altered excise, transaction, sales, privilege, assessment, or other taxes or charges now or hereafter imposed upon City as a result of this Lease, and all costs and fees (including attorneys' fees) incurred by City in contesting any real property taxes and in negotiating with public authorities as to any real property taxes affecting the Premises. If any real property taxes are based upon property or rents unrelated to the Premises and/or the Improvements, then only that part of such tax that is fairly allocable to the Premises and/or the Improvements, as determined by City, on the basis of the assessor's worksheets or other available information, shall be included within the meaning of the term "real property taxes." 8.2 Payment of Real Property Taxes. Lessee shall pay Lessee's share of all real property taxes (as defined in Section 8.1 above) which become due and payable to City on or before the later of ten (10) days prior to the delinquency thereof or fifteen (15) days after the date on which Lessee receives a copy of the tax bill and notice of City's determination hereunder. Lessee's liability to pay real property taxes shall be prorated on the basis of a three hundred sixty-five (365) day year to account for any fraction or portion of a tax year included in the Lease Term at the commencement or expiration of the Lease. 8.3 Revenue and Taxation Code. Lessee specifically acknowledges it is familiar with section 107.6 of the California Revenue and Taxation Code. Lessee realizes that a possessory interest subject to property taxes may be created, agrees to pay any such tax, and hereby waives any rights Lessee may have under said California Revenue and Taxation Code section 107.6. 8.4 Personal Property Taxes. Lessee shall pay before delinquent, or if requested by City, reimburse City for, any and all taxes, fees, and assessments associated with the Property, the personal property contained in the Premises and other taxes, fees, and assessments regarding any activities which take place at the Property. Lessee recognizes and understands in accepting this Lease that its interest therein may be subject to a possible possessory interest tax that City or County may impose on such interest and that such tax payment shall not reduce any rent due City hereunder and any such tax shall be the liability of and be paid by Lessee. 9. MAINTENANCE AND REPAIRS & CAPITAL IMPROVEMENT 9.1 Lessee Responsibilities. Lessee at Lessee's expense, shall perform all maintenance and repairs, including all painting, and all maintenance of landscaped areas necessary to keep the Page 9 of 29 Premises and all improvements thereto in first-class order, repair, and condition, and shall keep the Premises in a safe, clean, wholesome, and sanitary condition to the complete but reasonable satisfaction of City, and in compliance with all applicable laws, throughout the term of this Lease. In addition, Lessee shall maintain, at Lessee's expense, all equipment, furnishings and trade fixtures upon the Premises required for the maintenance and operation of a first-class business of the type to be conducted pursuant to this Lease. Lessee shall be responsible for the maintenance, repair and replacement of the structures located on the Premises and all the main support systems exclusively serving the Premises, including plumbing (but excluding the portions of the same that are underground), electrical, HVAC, foundation, framing, exterior walls of the Premises and structural support systems. Lessee will be responsible for the maintenance, repair of the roof. Notwithstanding the foregoing, except to the extent any maintenance, repair or replacement is made necessary by the negligence of Lessee, the City shall be responsible for the replacement of the roof. 9.2 Waiver of Civil Code. Lessee expressly waives the benefit of any statute now or hereinafter in effect, including the provisions of sections 1941 and 1942 of the Civil Code of California, which would otherwise afford Lessee the right to make repairs at City's expense or to terminate this Lease because of City's failure to keep Premises in good order, condition and repair. Lessee further agrees that if and when any repairs, alterations, additions or betterments shall be made by Lessee as required by this paragraph, Lessee shall promptly pay for all labor done or materials furnished and shall keep the Premises free and clear of any lien or encumbrance of any kind whatsoever. If Lessee fails to make any repairs or perform any maintenance work for which Lessee is responsible within a reasonable time (as determined by the City Manager in the City Manager's sole discretion) after demand by the City, City shall have the right, but not the obligation, to make the repairs at Lessee's expense; within ten (10) days of receipt of a bill, Lessee shall reimburse City for the cost of such repairs, including a fifteen percent (15% administrative overhead fee. The making of such repairs or performance of maintenance by City shall in no event be construed as a waiver of the duty of Lessee to make repairs or perform maintenance as provided in this Section. 10. ALTERATIONS BY LESSEE Lessee shall not make any alterations or improvements to the Premises without obtaining the prior written consent of the City Manager, except for alterations or improvements that cost less than Ten Thousand Dollars ($10,000.00) and which do not affect the building systems or the structural integrity or structural components of the Premises. Lessee may, at any time and at its sole expense, and without the prior written consent of City, install and place business fixtures and equipment within the Premises. 11. CONSTRUCTION BY LESSEE. 11.1 Ownership of Improvements. All improvements constructed, erected, or installed upon the Premises must be free and clear of all liens, claims, or liability for labor or material and shall become the property of City, at its election, upon expiration or earlier termination of this lease and upon City's election, shall remain upon the Premises upon termination of this Lease. Title to Page 10 of 29 all equipment, furniture, furnishings, and trade fixtures placed by Lessee upon the Premises shall remain in Lessee, and replacements, substitutions and modifications thereof may be made by Lessee throughout the term of this Lease. Lessee may remove such fixtures and furnishings upon termination of this Lease if Lessee is not then in default under this Lease, provided that Lessee shall repair to the satisfaction of City any damage to the Premises and improvements caused by such removal and provided that usual and customary lighting, plumbing and heating fixtures shall remain upon the Premises upon termination of this Lease. 11.2 Indemnity for Claims Arising Out of Construction. Lessee shall defend and indemnify City against all claims, liabilities, and losses of any type arising out of work performed on the Premises by Lessee, together with reasonable attorneys' fees and all costs and expenses reasonably incurred by City in negotiating, settling, defending or otherwise protecting against such claims. 11.3 Assurance of Completion. Prior to commencement of any construction or alteration expected to cost more than $5,000, Lessee shall furnish the City Manager evidence that assures City that sufficient funds will be available to complete the proposed work. The amount of such assurance shall be at least the total estimated construction cost. Evidence of such assurance shall take one of the forms set out below and shall guarantee Lessee's full and faithful performance of all of the terms, covenants, and conditions of this Lease: A. Completion Bond; B. Performance, labor and material bonds, supplied by Lessee's contractor or contractors, provided the bonds are issued jointly to Lessee and City; C. Irrevocable letter of credit from a financial institution; D. Proof of cash or other liquid assets; or E. Any combination of the above. All bonds and letters of credit must be issued by a company qualified to do business in the State of California and be acceptable to the City Manager. All bonds and letters of credit shall be in a form acceptable to the City Manager, and shall insure faithful and full observance and performance by Lessee of all of the terms, conditions, covenants, and agreements relating to the construction of improvements or alterations in accordance with this Lease. 11.4 Certificate of Inspection. Upon completion of construction of any building, Lessee shall submit to the City Manager a Certificate of Inspection, verifying that the construction was completed in conformance with Title 20 of the California Code of Regulations for residential construction, or in conformance with Title 24 of the California Code of Regulations for non- residential construction. 11.5 As Built Plans. Lessee shall provide the City Manager with a complete set of reproducible "as built plans" reflecting actual construction within or upon the Premises upon completion of any: (i) new construction; (ii) structural alterations; or, (iii) non-structural alterations costing more than $25,000. 12. HOLD HARMLESS/INDEMNIFICATION. Page 11 of 29 12.1 Indemnification. To the extent permitted by law, Lessee agrees to protect, defend, hold harmless and indemnify City, its City Council, commissions, officers, agents, volunteers, and employees from and against any claim, injury, liability, loss, cost, and/or expense or damage, however same may be caused, including all costs and reasonable attorney's fees in providing a defense to any claim arising therefrom for which City shall become legally liable arising from Lessee's negligent, reckless, or wrongful acts, errors, or omissions with respect to or in any way connected with this Lease. Lessee shall give City immediate notice of any claim or liability hereby indemnified against. This indemnity shall be in addition to the Hazardous Materials indemnity contained in this Lease and shall survive shall survive the expiration of or early termination of the Lease Term. 12.2 Waiver of Claims. Lessee waives any claims against City for injury to Lessee's business or any loss of income therefrom, for damage to Lessee's property, or for injury or death of any person in or about the Premises, from any cause whatsoever, except to the extent caused by the active negligence or willful misconduct of City or City's officers, agents, contractors, volunteers, and employees. 13. DAMAGE, DESTRUCTION AND TERMINATION. 13.1 Nontermination and Nonabatement. Except as provided herein, no destruction or damage to the Premises by fire, windstorm or other casualty, whether insured or uninsured, shall entitle Lessee to terminate this Lease. City and Lessee waive the provisions of any statutes which relate to termination of a lease when leased property is destroyed and agree that such event shall be governed by the terms of this Lease. 13.2 Force Majeure. Prevention, delay or stoppage due to strikes, lockouts, labor disputes, Acts of God, inability to obtain labor, inability to obtain materials or reasonable substitutes, governmental restrictions, governmental regulation, governmental controls, judicial orders, enemy or hostile governmental actions, civil commotion, fire or other casualty, and other causes beyond the reasonable control of Lessee (financial inability excepted), shall excuse the performance by Lessee for a period equal to the prevention, delay, or stoppage, except the obligations imposed with regard to rent to be paid by Lessee pursuant to this Lease. In the event any work performed by Lessee or Lessee's contractors results in a strike, lockout, and/or labor dispute, the strike, lockout, and/or labor dispute shall not excuse the performance by Lessee of the provisions of this Lease. 13.3 Restoration of Premises by Lessee. 13.3.1 Destruction Due to Risk Covered by Insurance. If, during the term, the Premises are totally or partially destroyed from a risk covered by the insurance described in Section 20 (Insurance), rendering the Premises totally or partially inaccessible or unusable, Lessee shall restore the Premises to substantially the same condition as it was in immediately before destruction, but only to the extent of insurance proceeds actually received. Such destruction shall not terminate this Lease. If the laws existing at that time do not permit the restoration, either party can terminate Page 12 of 29 this Lease immediately by giving notice to the other party. A. Minor Loss. If, during the term of this Lease, the Premises are destroyed from a risk covered by the insurance described in Section 20 (Insurance), and the total amount of loss does not exceed one hundred thousand dollars ($100,000), Lessee shall make the loss adjustment with the insurance company insuring the loss. The proceeds shall be paid directly to Lessee for the sole purpose of making the restoration of the Premises in accordance with this Lease. B. Major Loss -Insurance Trustee. If, during the term of this Lease, the Premises are destroyed from a risk covered by the insurance described in Section 20 (Insurance), and the total amount of loss exceeds the amount set forth in paragraph (1), Lessee shall make the loss adjustment with the insurance company insuring the loss and on receipt of the proceeds shall immediately pay them to an institutional lender or title company as may be jointly selected by the parties ("the Insurance Trustee"), and funds shall be disbursed by the Insurance Trustee pursuant to the procedures set forth below in Section 13.3.2. 13.3.2 Destruction Due to Risk Not Covered by Insurance. If, during the term, the Premises are totally or partially destroyed from a risk not covered by the insurance described in Section 20 (Insurance), rendering the Premises totally or partially inaccessible or unusable, Lessee shall restore the Premises to substantially the same condition as it was in immediately before destruction, whether or not the insurance proceeds are sufficient to cover the actual cost of restoration. Such destruction shall not terminate this Lease. If the laws existing at that time do not permit the restoration, either party can terminate this Lease immediately by giving notice to the other party. If the cost of restoration exceeds ten percent (10%) of the then replacement value of the Premises totally or partially destroyed, Lessee can elect to terminate this Lease by giving notice to City within sixty (60) days after determining the restoration cost and replacement value. If Lessee elects to terminate this Lease, City, within thirty (30) days after receiving Lessee's notice to terminate, can elect to pay to Lessee, at the time City notifies Lessee of its election, the difference between ten percent (10%) of the replacement value of the Premises and the actual cost of restoration, in which case Lessee shall restore the Premises. On City's making its election to contribute, each party shall deposit immediately the amount of its contribution with such institutional lender or Title Company as may be jointly selected by the parties ("the Insurance Trustee"). If the Destruction does not exceed ten percent (10%) of the then replacement value of the Premises but does exceed one hundred thousand dollars ($100,000), Lessee shall immediately deposit the cost of restoration with an Insurance Trustee. This Lease shall terminate if Lessee elects to terminate this Lease and City does not elect to contribute toward the cost of restoration as provided in this section. If the Premises are destroyed from a risk not covered by the insurance described Page 13 of 29 in Section 20 (Insurance), and Lessee has the obligation to restore the Premises as provided in subsection (B), both parties shall deposit with the Insurance Trustee their respective contributions toward the cost of restoration. All sums deposited with the Insurance Trustee shall be held for the following purposes and the Insurance Trustee shall have the following powers and duties: The sums shall be paid in installments by the Insurance Trustee to the contractor retained by Lessee as construction progresses, for payment of the cost of Restoration. A 10% retention fund shall be established that will be paid to the contractor on completion of restoration, payment of all costs, expiration of all applicable lien periods, and proof that the Premises are free of all mechanics' liens and lienable claims. Payments shall be made on presentation of certificates or vouchers from the architect or engineer retained by Lessee showing the amount due. If the Insurance Trustee, in its reasonable discretion, determines that the certificates or vouchers are being improperly approved by the architect or engineer retained by Lessee, the Insurance Trustee shall have the right to appoint an architect or an engineer to supervise construction and to make payments on certificates or vouchers approved by the architect or engineer retained by the Insurance Trustee. The reasonable expenses and charges of the architect or engineer retained by the Insurance Trustee shall be paid by the insurance trustee out of the trust fund. Both parties shall promptly execute all documents and perform all acts reasonably required by the Insurance Trustee to perform its obligations under this section. If the sums held by the Insurance Trustee are not sufficient to pay the actual cost of restoration Lessee shall deposit the amount of the deficiency with the Insurance Trustee within fifteen (15) days after request by the Insurance Trustee indicating the amount of the deficiency. Any undisbursed funds after compliance with the provisions of this section shall be delivered to City to the extent of City's contribution to the fund, and the balance, if any, shall be paid to Lessee. All actual costs and charges of the Insurance Trustee shall be paid by Lessee. If the Insurance Trustee resigns or for any reason is unwilling to act or continue to act, a new trustee shall be jointly selected by the parties and shall be substituted in the place of the designated Insurance Trustee. The new trustee must be an institutional lender or title company. 13.3.3 Procedure for Restoring Premises. When Lessee is obligated to restore the Premises, within ninety (90) days Lessee at its cost shall prepare final plans, specifications, and working drawings complying with applicable Laws that will be necessary for restoration of the Premises and shall deliver the same to City for approval. The plans, specifications, and working drawings must be approved by City, such approval not to be unreasonably withheld, conditioned or delayed. City shall have thirty (30) days after receipt of the plans and specifications and working drawings to either approve or disapprove the plans, specifications, and Page 14 of 29 working drawings and return them to Lessee. If City disapproves the plans, specifications, and working drawings, City shall notify Lessee of its objections and City's proposed solution to each objection. Lessee acknowledges that the plans, specifications, and working drawings shall be subject to approval of the appropriate governmental bodies and that they will be prepared in such a manner as to obtain that approval. The restoration shall be accomplished as follows: A. Lessee shall make commercially reasonable efforts to complete the restoration within 180 working days after final plans and specifications and working drawings have been approved by the appropriate governmental bodies and all required permits have been obtained (subject to a reasonable extension for delays resulting from causes beyond Lessee's reasonable control). B. Lessee shall retain a licensed contractor that is bondable. The contractor shall be required to carry public liability and property damage insurance, standard fire and extended coverage insurance, with vandalism and malicious mischief endorsements, during the period of construction in accordance with Section 20 (Insurance). Such insurance shall contain waiver of subrogation clauses in favor of City and Lessee in accordance with the Provisions of Exhibit B. C. Lessee shall notify City of the date of commencement of the restoration at least ten (10) days before commencement of the restoration to enable City to post and record notices of non -responsibility. The contractor retained by Lessee shall not commence construction until a completion bond and a labor and materials bond have been delivered to City to insure completion of the construction. D. Lessee shall accomplish the restoration in a manner that will cause the least inconvenience, annoyance, and disruption at the Premises. E. On completion of the restoration Lessee shall immediately record a notice of completion in the county in which the Premises are located. F. If funds are required to be deposited with an Insurance Trustee as required by this Section 13, the restoration shall not be commenced until sums sufficient to cover the cost of restoration are placed with the Insurance Trustee as provided in this section. 14. SIGNS. Lessee shall not place, construct, maintain, or allow any signs upon the Premises without prior written consent of City, such consent not to be unreasonably withheld, conditioned or delayed. 15. ASSIGNMENT AND SUBLETTING. Page 15 of 29 15.1 City's Consent Required. Lessee shall not assign this lease, nor any interest therein, and shall not sublet or encumber the Property or any part thereof, nor any right or privilege appurtenant thereto, nor allow or permit any other person(s) to occupy or use the Property, or any portion thereof, without the prior written consent of City. This Lease shall be binding upon any permitted assignee or successor of Lessee. Consent by City to one assignment, subletting, occupation or use by another person shall not be deemed to be consent to any subsequent assignment, subletting, occupation or use by another person. No assignment, subletting, or encumbrance by Lessee shall release it from or in any way alter any of Lessee's obligations under this Lease. Lessee may, without the prior written consent of City, have the Property delivered to (i) a parent or subsidiary company of Lessee, (ii) an entity which purchases all of the assets of Lessee, or (iii) an entity into which Lessee is merged or consolidated, but such arrangement shall in no way alter Lessee's responsibilities hereunder with respect to the Property, and Lessee shall promptly notify City of such transfer. Any assignment, subletting, encumbrances, occupation, or use contrary to the provisions of this Lease shall be void and shall constitute breach of this Lease. City may assign any of its rights hereunder without notice to Lessee. 15.2 No Release of Lessee. No subletting or assignment as approved by City shall release Lessee of Lessee's obligation or alter the primary liability of Lessee to pay the rent and to perform all other obligations by Lessee hereunder. The acceptance of rent by City from any other person shall not be deemed to be a waiver by City of any provision hereof. In the event of default by any assignee of Lessee or any successor of Lessee in the performance of any of the terms hereof, City may proceed directly against Lessee without the necessity of exhausting remedies against said assignee. 16. DEFAULTS; REMEDIES. 16.1 Defaults. The occurrence of any one or more of the following events shall constitute a material default, or breach of this Lease, by Lessee: 16.1.1 Abandonment of the Premises by Lessee as defined by California Civil Code section 1951.3; 16.1.2 Failure by Lessee to make any payment of rent or any other payment required to be made by Lessee hereunder, as provided in this Lease, where such failure shall continue for a period of ten (10) business days after written notice thereof from City to Lessee. In the event City serves Lessee with a Notice to Pay Rent or Quit pursuant to applicable Unlawful Detainer statutes, such Notice to Pay Rent or Quit shall also constitute the notice required by this subparagraph; 16.1.3 Failure by Lessee to observe or perform any of the covenants, conditions or provisions of this Lease in any material respect where such failure shall continue for a period of thirty (30) days after written notice thereof from City to Lessee; provided, however, that if the nature of Lessee's default is such that more than thirty (30) days are reasonably required for its cure, then Lessee shall not be deemed to be in default if Lessee commenced such cure within said thirty (30) day period and thereafter diligently prosecutes such cure to completion; Page 16 of 29 16.1.4 Making by Lessee of any general arrangement or assignment for the benefit of creditors; Lessee's becoming a "debtor" as defined in 11 U.S.C. §101 or any successor statute thereto (unless, in the case of a petition filed against Lessee, the same is dismissed within sixty (60) days); the appointment of a bankruptcy trustee or receiver to take possession of all or substantially all of Lessee's assets located at or on the Premises or of Lessee's interest in this Lease where possession is not restored to Lessee within thirty (30) days; or the attachment, execution or other judicial seizure of all or substantially all of Lessee's assets located at or on the Premises or of Lessee's interest in this Lease, where such seizure is not discharged within thirty (30) days. 16.2 Remedies. In the event of any material default or breach by Lessee, City may at any time thereafter, following any notice required by statute, and without limiting City in the exercise of any right or remedy which City may have by reason of such default or breach: 16.2.1 Terminate Lessee's right to possession of the Premises by any lawful means, in which case this Lease shall terminate and Lessee shall immediately surrender possession of the Premises and Improvements to City. In such event, City shall be entitled to recover from Lessee all damages incurred by City by reason of Lessee's default including but not limited to: the cost of recovering possession of the Premises and Improvements; expenses of reletting, including necessary renovation and alteration of the Premises and Improvements; reasonable attorneys' fees; the worth at the time of the award of the unpaid rent that had been earned at the time of termination of this Lease and the worth at the time of award of the amount by which the unpaid rent for the balance of the term after the time of such award exceeds the amount of such rental loss for the same period that Lessee proves could be reasonably avoided. 16.2.2 Maintain Lessee's right to possession, in which case this Lease shall continue in effect whether or not Lessee shall have abandoned the Premises. In such event, City shall be entitled to enforce all of City's rights and remedies under this Lease, including the right to recover rent and other payments as they become due hereunder. 16.2.3 Pursue any other remedy now or hereafter available to City under the laws or judicial decisions of the State of California. City shall have all remedies provided by law and equity. 16.3 No Relief from Forfeiture After Default. Lessee waives all rights of redemption or relief from forfeiture under California Code of Civil Procedure sections 1174 and 1179, and any other present or future law, in the event Lessee is evicted or City otherwise lawfully takes possession of the Premises by reason of any default or breach of this Lease by Lessee. 16.4 Disposition of Abandoned Personal Property. If the Lessee fails to remove any personal property belonging to Lessee from the Premises after forty-five (45) days of the expiration or termination of this Lease, such property shall at the option of City be deemed to have been transferred to City. City shall have the right to remove and to dispose of such property without liability to Lessee or to any person claiming under Lessee, and the City shall have no need to Page 17 of 29 account for such property. 17. INTEREST ON PAST -DUE OBLIGATIONS. Except as expressly provided herein, any amount due City when not paid when due shall bear interest at the lesser of ten percent (10%) per year or the maximum rate then allowable by law from the date due. 18. HOLDING OVER. If Lessee remains in possession of the Premises or any part thereof after the expiration of the term or option term hereof, such occupancy shall be a tenancy from month to month with all the obligations of this Lease applicable to Lessee and at a monthly rental obligation of ten percent (10%) increase over the Base Rent in effect at the time of expiration. Nothing contained in this Lease shall give to Lessee the right to occupy the Property after the expiration of the term, or upon an earlier termination for breach. 19. CITY'S ACCESS. 19.1 Access for Inspection. City and City's agents shall have the right to enter the Premises at reasonable times, upon not less than twenty-four (24) hours prior notice to Lessee, for the purpose of inspecting same, showing same to prospective purchasers, lenders or lessees, and making such alterations, repairs, improvements, or additions to the Premises as City may deem necessary. City may at any time place on or about the Premises any ordinary "For Sale" signs and City may at any time during the last one hundred twenty (120) days of the term hereof place on or about the Premises any ordinary "For Lease" signs, all without rebate of rent or liability to Lessee. 19.2 Security Measures. City shall have the right to require a reasonable security system, device, operation, or plan be installed and implemented to protect the Premises or the Improvements. Should City, in its sole discretion, require Lessee to install such a security system, Lessee agrees to bear the sole cost and expense of any security system, device, operation or plan and the installation and implementation thereof. Lessee shall obtain City's prior approval before installing, implementing or changing any City approved security system, device, operation or plan. 19.3 New Locks. Lessee may install new locks on all exterior doors. Lessee shall advise City of such action and shall provide City with keys to said locks. Lessee shall also deliver to City the old locks with keys. Upon termination, all locks shall become the property of City. 20. 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 Page 18 of 29 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. 21. RESERVATION OF AVIGATIONAL EASEMENT. City hereby reserves for the use and benefits of the public, a right of avigation over the Premises for the passage of aircraft landing at, taking off, or operating from the adjacent airport operated by the County of Santa Clara. Lessee releases the City from all liability for noise, vibration, and any other related nuisance. 22. EMINENT DOMAIN. 22.1 If all or any part of the Premises (or the building in which the Premises are located) is condemned by a public entity in the lawful exercise of its power of eminent domain, this Lease Page 19 of 29 shall cease as to the part condemned. The date of such termination shall be the effective date of possession of the whole or part of the Premises by the condemning public entity. 22.2 If only a part is condemned and the condemnation of that part does not substantially impair the capacity of the remainder to be used for the purposes required by this Lease, Lessee shall continue to be bound by the terms, covenants, and conditions of this Lease. However, the then monthly rent shall be reduced in proportion to the diminution in value of the Premises. If the condemnation of a part of the Premises substantially impairs the capacity of the remainder to be used for the purposes required by this Lease, Lessee may: A. Terminate this Lease and thereby be absolved of obligations under this Lease which have not accrued as of the date of possession by the condemning public entity; or B. Continue to occupy the remaining Premises and thereby continue to be bound by the terms, covenants and conditions of this Lease. If Lessee elects to continue in possession of the remainder of the Premises, the monthly rent shall be reduced in proportion to the diminution in value of the Premises. C. Lessee shall provide City with written notice advising City of Lessee's choice within thirty (30) days of possession of the part condemned by the condemning public entity. 22.3 City shall be entitled to and shall receive all compensation related to the condemnation, except that Lessee shall be entitled to: (a) that portion of the compensation which represents the value for the remainder of the Lease term of any Lessee -constructed improvements taken by the condemning public entity, which amount shall not exceed the actual cost of such improvements reduced in proportion to the relationship of the remaining Lease term to the original Lease term, using a straight line approach; and (b) any amount specifically designated as a moving allowance or as compensation for Lessee's personal property. Lessee shall have no claim against City for the value of any unexpired term of this Lease. 23. POST -ACQUISITION TENANCY. Except as otherwise set forth in Section 22.3 above, Lessee understands and agrees to waive all claims for relocation assistance and benefits under federal, state or local law. 24. DISPUTE RESOLUTION. 24.1 Unless otherwise mutually agreed to, any controversies between Lessee and City regarding the construction or application of this Lease, and claims arising out of this Lease or its breach shall be submitted to mediation within thirty (30) days of the written request of one Party after the service of that request on the other Party. 24.2 The Parties may agree on one mediator. If they cannot agree on one mediator, the Party demanding mediation shall request the Superior Court of Santa Clara County to appoint a mediator. The mediation meeting shall not exceed one day (eight (8) hours). The Parties may Page 20 of 29 agree to extend the time allowed for mediation under this Lease. 24.3 The costs of mediation shall be borne by the Parties equally. 24.4 Mediation under this section is a condition precedent to filing an action in any court. In the event of litigation arising out of any dispute related to this Lease, the prevailing party shall be entitled to recover their reasonable attorney's fees, expert witness costs and cost of suit. 25. NON -LIABILITY OF OFFICIALS AND EMPLOYEES OF THE CITY. No official or employee of City shall be personally liable for any default or liability under this agreement. 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." 27. INDEPENDENT CONTRACTOR. It is agreed that Lessee shall act and be an independent contractor and not an agent nor employee of City. 28. CONFLICT OF INTEREST. Lessee shall at all times avoid conflict of interest or appearance of conflict of interest in performance of this agreement. Lessee warrants and covenants that no official or employee of City nor any business entity in which any official or employee of City is interested: (1) has been employed or retained to solicit or aid in the procuring of this agreement; or (2) will be employed in the performance of this agreement without the divulgence of such fact to City. In the event that City determines that the employment of any such official, employee or business entity is not compatible with such official's or employee's duties as an official or employee of City, Lessee upon request of City shall immediately terminate such employment. Violation of this provision Page 21 of 29 constitutes a serious breach of this Lease and City may terminate this Lease as a result of such violation. 29. MEMORANDUM OF LEASE. Following execution of this Lease, either party, at its sole expense, shall be entitled to record a Memorandum of Lease in the official records of Santa Clara County. Upon termination or expiration of this Lease, Lessee shall execute and record a quitclaim deed as to its leasehold interest. 30. ESTOPPEL CERTIFICATE. Lessee shall, from time to time, upon at least thirty (30) days prior written notice from City, execute, acknowledge and deliver to City a statement in writing: (i) certifying this Lease is unmodified and in full force and effect, or, if modified, stating the nature of the modification and certifying that the Lease, as modified, is in full force and effect, and the date to which the rental and other charges, if any, have been paid; and, (ii) acknowledging that there are not to Lessee's knowledge, any defaults, or stating if any defaults are claimed, any statement may be relied upon by any prospective purchaser or encumbrance of the Property. 31. LIENS. Lessee agrees at its sole cost and expense to keep the Property free and clear of any and all claims, levies, liens, encumbrances or attachments. 32. VACATING. Upon termination of the tenancy, Lessee shall completely vacate the Property, including the removal of any and all of its property. Before departure, Lessee shall return the Premises to a good, clean and sanitary condition, reasonable wear and tear excepted. Lessee shall allow City to inspect the Property and complete a walk-through to verify the condition of the Property and its contents. 33. ABANDONMENT. Lessee's absence from the Property for three (3) consecutive days, without prior notice, during which time rent or other charges are delinquent, shall be deemed abandonment of the Property. Such abandonment will be deemed cause for immediate termination without notice. City shall thereupon be authorized to enter and take possession and to remove and dispose of the property of Lessee or its guests without any liability whatsoever to City. 34. NOTICES. All notices to the Parties shall, unless otherwise requested in writing, be sent to City addressed as follows: Page 22 of 29 City of Palo Alto Real Estate Division Avenidas Attention: President & CEO 250 Hamilton Avenue 450 Bryant Street Palo Alto, 94301 Palo Alto, CA 94063 Phone: 650-329-2264 Fax: 650-323-8356 Phone: 650-289-5400 Fax: 650-328-0366 Notices may be served upon Lessee in person, by first class mail, or by certified mail whether or not said mailing is accepted by Lessee. Notices sent via regular mail shall be deemed given 48 hours after the same is addressed as required herein and mailed with postage prepaid. If notice is sent via facsimile, a signed, hard copy of the material shall also be mailed. The workday the facsimile was sent shall control the date notice was deemed given if there is a facsimile machine generated document on the date of transmission. A facsimile transmitted after 1:00 p.m. on a Friday shall be deemed to have been transmitted on the following Monday. These addresses shall be used for service of process. 35. TIME. Time shall be of the essence in this Lease. 36. AMENDMENTS. It is mutually agreed that no oral Leases have been entered into and that no alteration or variation of the terms of this Lease shall be valid unless made in writing and signed by the Parties to this Lease. 37. SIGNING AUTHORITY. If this Lease is not signed by all Lessees named herein, the person actually signing warrants that he/she has the authority to sign for the others. 38. CAPTIONS. The captions of the various sections, paragraphs and subparagraphs of this Lease are for convenience only and shall not be considered or referred to in resolving questions of interpretation. 39. SURRENDER OF LEASE NOT MERGER. The voluntary or other surrender of this lease by Lessee, or a mutual cancellation thereof, shall not work a merger, and shall, at the option of City, terminate all or any existing subleases or subtenancies, or may, at the option of City, operate as an assignment of any and all such subleases or subtenancies. 40. INTEGRATED DOCUMENT. Page 23 of 29 This Lease, including any exhibits attached hereto, embodies the entire agreement between City and Lessee. No other understanding, agreements, conversations or otherwise, with any officer, agent or employee of City prior to execution of this Lease shall affect or modify any of the terms or obligations contained in any documents comprising this Lease. Any such verbal agreement shall be considered as unofficial information and in no way binding upon City. All agreements with City are subject to approval of the City Council before City shall be bound thereby. 41. WAIVER. Waiver by City of one or more conditions of performance or any breach of a condition under this Lease shall not be construed as a waiver of any other condition of performance or subsequent breaches. The subsequent acceptance by a Party of the performance of any obligation or duty by another Party shall not be deemed to be a waiver of any term or condition of this Lease. The exercise of any remedy, right, option or privilege hereunder by City shall not preclude City from exercising the same or any and all other remedies, rights, options and privileges hereunder and City's failure to exercise any remedy, right, option or privilege at law or equity, or otherwise which City may have, shall not be construed as a waiver. 42. INTERPRETATIONS. In construing or interpreting this Lease, the word "or" shall not be construed as exclusive and the word "including" shall not be limiting. The Parties agree that this Lease shall be fairly interpreted in accordance with its terms without any strict construction in favor of or against any other Party. 43. SEVERABILITY CLAUSE. If any provision of this Lease is held to be illegal, invalid or unenforceable in full or in part, for any reason, then such provision shall be modified to the minimum extent necessary to make the provision legal, valid and enforceable, and the other provisions of this Lease shall not be affected thereby. 44. GOVERNING LAW. This Lease shall be governed and construed in accordance with the statutes and laws of the State of California. 45. VENUE. In the event that suit shall be brought by any Party to this Lease, the Parties agree that venue shall be exclusively vested in the state courts of the County of Santa Clara. 46. COMPLIANCE WITH LAWS. The Parties hereto shall comply with all applicable laws, ordinances, codes and regulations of the federal, state and local governments in the performance of their rights, duties and obligations under this Lease. Page 24 of 29 47. BROKERS. Each party represents that is has not had dealings with any real estate broker, finder, or other person, with respect to this lease in any manner. Each Party shall hold harmless the other party from all damages resulting from any claims that may be asserted against the other party by any broker, finder, or other person with whom the Indemnifying Party has or purportedly has dealt. 48. PARKING City grants to Lessee a nonexclusive license to use twenty—five (25) parking spaces in Lot C as and four (4) exclusive parking spaces in the Paulsen Lane alley as shown in Exhibit E near as practical to the Premises, as specified by City Manager or designee for the accommodations and parking of automobiles by Lessee, any subtenants on the Premise and visitors to Avenidas. Lessee agrees to abide by any and all rules and parking regulation of the City for the subject parking area and the manner and mode of Lessee's use thereof. 49. AMENDMENTS. The parties acknowledge no oral agreements regarding this lease have been entered into by and that no alteration or variation of the provisions shall be valid unless made in writing, and signed by the parties. 50. PRIOR LEASE SUPERSEDED. The prior lease between the City and Avenidas dated May 11, 1977 and any amendments thereto is hereby terminated and superseded by this Agreement. 51. ATTACHMENTS TO LEASE. The following exhibits are attached to and made a part of this Agreement: "A" — Parcel Map of Subject Property "B" — Subject Property "C" - Premises "D" — Standard Insurance Requirements "E" Parking Spaces IN WITNESS WHEREOF, the parties have executed this Lease the day and year first above written. CITY: TENANT: CITY OF PALO ALTO (LESSOR) Avenidas By: By: City Manager or Designee Title: Page 25 of 29 ATTEST: Type of Corporation: City Clerk APPROVED AS TO FORM: By:_ Senior Asst. City Attorney Page 26 of 29 i2 OFFICE OF COUNTY WH .H.H.HART 'S SUBDIVISION OF BLOCK 4 - LYTTON 1 P.M.510—M16 30 UNIVERSITY TR. N27318 1/6 /24 /30 -40 P.M. 829—M-52 LLA. 18517643 73 11 25 40.25 72-25 25 125 43 44 LOTA 25 26 \1io�- CITY OF PALO ALTO 88 6327062 04 PCL 1 0. 58 AC. NET I 225 19269614 PCL. 1 109 2 $ 11,286 sf 0.29 100 < 0.3 125 95 9412718 n I� 3521 r. 110 **- -1 6,304s f PCLB 1"1 111 8 -- 91 11 PCL A 12 —2 9910sf 125 — HAMILTON 100 /35 V S 0 ASSESSOR 25, 251'25 25 1"1"1"1"1" 3 1� 105 100 1 125 55 54 53 521""' 106 fs 1 _ 1 1 .L _L511.540 1 49 148147 34 56 146 6 75 —g,,- ,-,----mgr A 4§ .501 25 N 33 " r 44 112.50 .32 PCL 8 43 26 N -;12.50 60 - 42 - T12 .55 • N -- CITY OFI - t PALO ALTO -- L0 + 27 ---- 62 40— r -- -F 0.52AC.NET -- 112.5- 1 0 63 39 N --r-TT- T- T----172'591-'- 30 31 32 33 34 H5 36 j 37 38 g 31 30 ' 29 ; 28 g 25; 25 i 25 125 i 25 25 i 25 i 251 25j /5/ 165 /71-3 185 LV LL, co R P. M.598—M-29 150/54/56/62/64 /70 /72.4 180-2-4 1 100 25 N 45 46 LOT I 100 31 56 a 94 .IA 0 55 08754 Q I J 53 a 52 — OrW - r rg251 1-vr r Iv 10 0 50 49 48 8 86 50 25 ' 25 125 P. J. MARTIN'S SUBDIVISION OF BLOCK 5 a /67 25 25 1 25 25 Ig 47,4810 «33j 321 25,/34 35 r _ 37 N SANTA 5 21 20 19 I8 17 102.50 0 0 J IL 0 r - 16 - - < - 3 „ 15 oz - 102.50 14 -4f53- 13 5 1 20 22 23 24 25 CLARA COUNTY, MILLS SUBDIVISION OF BLOCK 13 250 200 100 ,26 13 " v 27 99 2 7221 107 23 2 P' 97.50 12 ,a 102 .53 c9"" II 22 I 0.409 AC. 172 �. 10 102 .52 I 2 0 21 225 125 3 4 5 20 25 25 ' 25 50 20/-3-5 r35 125; 8 209-19 223 227 233- 5 CITY OF 9 6C N t -13 14 15 16 171 18 119 20 PALO_+9LIQL26 25 LLA 17834705 230-9 0 220-2 222 24 0 25.!25 100 L_ .2 II o7610 0 0 N N N 251 252 35 1 $"*S7710- 54 98 9 X1-8 z — 0 7 75 6 r 5 251 1 _21 100 22 69 23 24 ZQ 25 71 N l m CALIFORNIA AVENUE 55 54 56 + 53 57 52 t 58 5t -1- 59 OF - t 60 50 PALO ALTO;;}r. 49 6195 48 62 47 + 1 .94 AC. 63 46 65 44 - 122.50 66 + 43 I'2.50 34 '35 136 100 APPRR. 195 0 / 977- 76 20 ^5 37'38 39 40141'42 10 9 8 1 � 25 j 25 25 25 i 5 25 30 2 5/-3 26/-3-7 27/ 29/2 90' r.M .620=m AY/ENUE I ' ' 270-A 274-17 49.31 60 .69/ 60' 2 r 10 26 100 27 72 la a L ZS 077 ^. 29 30 31 32 0 ° 73 0 z :I; p 20 25 H5 25 25 < 22 9-23 /-235-2 47 Cr PCL . 1 :8112 (UPPER AND LOWER LEVELS) PC L A ,931 sf PCL. 2 (MID LEVEL) SEE DETAIL PAGE 26-A 100.00 59 -- 67 6- los 66 100 3334135 36 49.31 L.M . 1753605tH r N 0404 100.00 8 PTN . PC LA 63 25 125 ' 25 125 201_ 261-7 100.00 AVENUE '0 L il I — z } ar m 30 4,934 sf BOOK 120 ,LL .LA .21330434 PC L APN 103 2 104 - MILLERS SUBDIVISION P .M.274—M4p OF BLOCK 12 260 2 50 UN/TS /00, 0/,03,05 UN/VERS/TY .CITY OF PAL DETAIL A 724 D Er . AM P 61 LAWRENCE E. STON Cadastral map for assess Compiled under R. & Effective Roll Year 2 Page 1 of 2 12/2/2014 EXHIBIT D STANDARD INSURANCE REQUIREMENTS Insurance Requirements for Lessee: Lessee shall purchase and maintain the insurance policies set forth below on all of its operations under this Lease at its sole cost and expense. Such policies shall be maintained for the full term of this Lease and the related warranty period (if applicable). For purposes of the insurance policies required under this Lease, the term "City" shall include the duly elected or appointed council members, commissioners, officers, agents, employees and volunteers of the City of Palo Alto, California, individually or collectively. Coverages (RL 28.1A) S Minimum Scope of Insurance Coverage shall be at least as broad as: 1) Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001). 2) Insurance Services Office form number CA 0001 (Ed. 1/87) covering Automobile Liability, code 1 (any auto). 3) Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance (for lessees with employees). 4) Property insurance against all risks of loss to any tenant improvements or betterments The policy or policies of insurance maintained by Lessee shall provide the following limits and coverages: POLICY MINIMUM LIMITS OF LIABILITY (1) Commercial General Liability (2) Automobile Liability Including Owned, Hired and Non -Owned Automobiles $1,000,000 per each occurrence for bodily injury, personal injury and property damage $ 1,000,000 Combined Single Limit (3) Workers' Compensation Employers Liability Statutory $1,000,000 per accident for bodily injury or disease (4) Lessee's Property Insurance Lessee shall procure and maintain property insurance coverage for: (a) all office furniture, trade fixture, office equipment, merchandise, and all other items of Lessee's property in, on, at, or about the premises and the building, include property installed by, for, or at the expense of Lessee; (b) all other improvements, betterments, alterations, and additions to the premises. Lessee's property insurance must fulfill the following requirements: (a) it must be written on the broadest available "all risk" policy form or an equivalent form acceptable City of Palo Alto, including earthquake sprinkler leakage. Up to the limit of $100,000. (b) for no less than ninety percent (90%) of the full replacement cost (new without deduction for depreciation) of the covered items and property; and (c) the amounts of coverage must meet any coinsurance requirements of the policy or policies. (RL 28.2) Deductibles and Self -Insured Retentions Any deductibles or self -insured retentions must be declared to and approved by the City. At the option of the City either: the insurer shall reduce or eliminate such deductibles or self -insured retentions as respects the City, its officers, officials, employees and volunteers; or the Lessee shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. Insurance shall be in full force and effect commencing on the first day of the term of this Lease. Each insurance policy required by this Lease shall: 1. Be endorsed to state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the City. 2. Include a waiver of all rigjhts of subrogation against the City and the members of the City Council and elective or appointive officers or employees, and each party shall indemnify the other against any loss or expense including reasonable attorney fees, resulting from the failure to obtain such waiver. 3. Name the City of Palo Alto as a loss payee on the property policy. 4. Provide that the City, its officers, officials, employees, agents and volunteers are to be covered as insureds as respects: liability arising out of activities performed by or on behalf of the Lessee; products and completed operations of the Lessee; premises owned, occupied or used by the Lessee; or automobiles owned, leased, hired or borrowed by the Lessee. The coverage shall contain no special limitations on the scope of protection afforded to the City, its officers, officials, employees, agents or volunteers. 5. Provide that for any claims related to this Lease, the Lessee's insurance coverage shall be primary insurance as respects the City, its officers, officials, employees, agents and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, agents or volunteers shall be excess of the Lessee's insurance and shall not contribute with it. 6. Provide that any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to the City, its officers, officials, employees, agents or volunteers. 7. Provide that Lessee's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. 8. Lessee agrees to promptly pay to City as Additional Rent, upon demand, the amount of any increase in the rate of insurance on the Premises or on any other part of Building that results by reason of Lessee's act(s) or Lessee's permitting certain activities to take place. Acceptability of Insurers All insurance policies shall be issued by California -admitted carriers having current A.M. Best's ratings of no lower than A -:VII. BRYANT STREET 7 -r T . T T♦ Rata Lv z W z J COGS WELL •:�;. •s • • L ••:Y:$ :., • 132.0 •. r::�.::::,.:,:;':=-.�;_. .• TRUE F.O.B. PUDLIC PARKING LOT J- LANE 13 EAST • RAN/01\1A STREET ;_',-'1'tint ::: LAND TO 5C LEASED • EXHIBIT "B" FIELD BOOK _ PAGE DRAWN L.FZJ DATE LEASE DIAGRAM CITY OWNED LAND PTN. BLOCK. 13 UN -1V. PARK APPROVED: fr/-';', 2/ 19 7' SCALE: /"x 4c," DWG. NO. Attachment C POLICY AND PROCEDURES 1-11/ASD Revised: October 2006 LEASED USE OF CITY LAND/FACILITIES POLICY STATEMENT The purpose of this policy is to ensure that decisions regarding use of City real property are made in the best interests of the citizens and taxpayers of Palo Alto. The development and operation of facilities by others (profit and/or non-profit entities) on City - owned property is appropriate only when such development and operation will further public use or provide a public benefit. Such facilities and operations must be consistent with existing City policies, plans, services and/or procedures. Open competitive and/or bid processes will be used to solicit proposals or provide opportunities to others prior to awarding an Option to Lease. This policy shall not apply to short-term interim leases where no significant change in use is proposed PROCEDURE A. Criteria for Permitting Leased Use of City Property by Others The proposed leased use must be compatible with, incidental to, and/or supportive of, the primary public use of the City -owned property, e.g. a snack stand in a district park, or the pro shop and coffee shop at the Golf Course. In the event of park dedicated land, the proposed use shall be consistent with the provisions set forth in the Charter of the City of Palo Alto, Article VIII, and the Palo Alto Municipal Code (PAMC), Sections 22.04 and 22.08 et. seq., which require that uses of park dedicated land be park, playground, recreation or conservation related uses. B. Option to Lease In all cases where there are significant approval requirements (significant tenant construction and/or rehabilitation), financing requirements (fundraising drives, obtaining financing from lending institutions, etc.), or other tenant pre -operation conditions, the Council shall award an Option to Lease setting forth all pre-construction/operation conditions as conditions to the tenant's obtaining the lease. The option term shall be for a reasonable period of time consistent with the nature of the conditions of the option. Prior to awarding an Option to Lease for a specific use, consideration shall be given to particular information. (Specific application and the relative importance of each of the following considerations will vary from site to site and by specific uses proposed.) Applications for leased use shall provide the following information: 1. The extent to which the proposed leased use satisfies a public need (e.g., by a significant number of Palo Alto residents and taxpayers) for the proposed services and/or uses. Page 1 of 4 POLICY AND PROCEDURES 1-11 /ASD Revised: October 2006 2. Consistency of the proposed use with existing City goals and objectives (set forth in the Comprehensive Plan, Zoning Ordinance, Municipal Code, and general municipal services objectives). 3. Consistency of the proposed use with existing plans for the property or facility (e.g., an approved Master Plan). 4. The impact of the proposed use (compatible services and uses, traffic impacts, noise impacts, energy conservation, etc.) upon: a. the immediate neighborhood; b. the community generally; and c. the environment (The proposed tenant shall, during the Option period, satisfy the City's environmental review process.) 5. The degree of public access, including City shared use of the facility or co- sponsorship of programs and/or services, i.e. the numbers of people, especially Palo Alto residents and taxpayers, that will be served by the proposed use and/or service. (It is the general intent of the City to maximize public access to its facilities and services, especially if park land is involved.) 6. The fees that will be charged to Palo Alto citizens. (It is the intent of the City to provide public access to its facilities at prices and/or fees that are fair and reasonable to the public. In the case of parklands, any fees and charges should be minimum and consistent with the fees and charges of comparable City -provided services.) 7. The monetary consideration to be provided to the City. 8. The history and assessment of the proposed group's ability to carry out the construction, if any, and operation of the facility and services as proposed. 9. A five-year pro -forma financial analysis of the proposed use, setting forth the project revenues and expenses for this period of time. Page 2 of 4 POLICY AND PROCEDURES 11 1/ASD Revised: October 2006 C. Public Notification 1. Prior to awarding an Option to -Lease (or Lease if there are no pre -construction or pre -operation conditions), the City shall provide a reasonable and appropriate opportunity to other groups or entities to respond to possible use of City facilities. Such reasonable and appropriate opportunities shall take one of the following forms: a. A Notice of Intent to Award an Option to Lease (or Lease if there are no pre -construction or pre -operation conditions) generally outlining the conditions of the Option and Lease, shall be published twice in a local newspaper of general circulation. The Notice shall provide at least 30 days notice to the public prior to a public hearing for Council action to award the Option to Lease. In addition, copies of the notice shall be mailed to property owners and tenants within 300 feet of the subject property in accordance with Section 18.77.080(d) of the Palo Alto Municipal Code (PAMC). b. A Request for Proposals will be sent to groups or entities likely to have an interest in submitting a proposal, subsequent to a public hearing and Notice of Intent to Request Proposals being published in the appropriate media. At a minimum, the Notice of Request for Proposals shall be announced in a local newspaper of general circulation and copies of the notice mailed to property owners and tenants within 300 feet of the subject property in accordance with PAMC Section 18.77.080(d). The Notice shall provide at least 30 days notice to the public prior to the public hearing. 2. The City's Real Estate Division shall be responsible for the public notification by mail and newspaper in accordance with either C(1)(a) or (b) above. D. Tenant Improvements 1. Construction of tenant improvements shall take place only after Council approval (as well as Planning Commission and Architectural Review Board approval when otherwise required by City procedures) of plans for such tenant proposed construction is obtained. In the event of park dedicated lands, Council approval shall be obtained by ordinance subject to referendum (PAMC Sections 22.08.005 and 22.08.006). 2. Generally, improvements to the real property shall become the property of the City upon termination of the Lease. Tenant -provided fixtures shall remain the property of the tenant. Page 3 of 4 POLICY AND PROCEDURES 1-11/ASD Revised: October 2006 E. Terms of the Lease 1. Tenant shall be required to provide the City with adequate compensation for the rights granted by the City to the Tenant. Determination of appropriate consideration shall begin with the estimated -fair market rental value of the lease premises for the use proposed. Consideration shall, however, be given to non - monetary benefits to be provided by the tenant. These proposed non -monetary public benefits must be clearly articulated and must provide an actual benefit to a significant portion of the citizens and taxpayers of Palo Alto. 2. The lease term shall be the minimum period of the time required to: a. amortize tenant's investment in any permitted and approved tenant construction; and b. be consistent with the nature of the proposed tenant operation. NOTE: Questions and/or clarification of this policy should be directed to the Administrative Services Department Page 4 of 4 CITY OF PALO ALTO City of Palo Alto (ID # 5365) City Council Staff Report Report Type: Action Items Meeting Date: 12/15/2014 Summary Title: Palo Alto Historical Museum Funding Requests for the Roth Building Title: Palo Alto Historical Museum's Request for Funding and Request for City to Sell Transfer of Development Rights for the Roth Building From: City Manager Lead Department: Administrative Services RECOMMENDATION Staff recommends that the Council review the following requests by Palo Alto Historical Museum (PAHM) and provide direction to Staff: 1. Whether to direct staff to initiate designating 300 Homer Street, known as the Roth Building, to be eligible as a "Sender Site" in the Transfer of Development Rights (TDR) program. 2. Whether the City should make a one-time contribution of one million ($1,000,000) toward the cost of historical rehabilitation and seismic work for City owned Roth Building located at 300 Homer Avenue. 3. Whether the City should issue a funding challenge where PAHM would solicit private matching donations if the City offered an additional $1.65 million toward the project cost. EXECUTIVE SUMMARY The Palo Alto History Museum (PAHM) proposed to restore, preserve, and rehabilitate the City's Roth Building as a museum. PAHM's proposal was accepted by the Council in April 2004. On June 22, 2007, the City granted PAHM a two year Option to Lease which has been extended several times. In the past ten years, PAHM has been utilizing various strategies and methods to raise sufficient capital to renovate the Roth Building and to operate a historical museum. As part of its development plan to begin work on the Building, the Palo Alto Historical Museum (PAHM) has requested additional assistance to raise funding toward the cost of historical rehabilitation and seismic work of the Roth building. (See Attachment A) Additionally as a part City of Palo Alto Page 1 of its financing plan for rehabilitation of the historic Roth Building, PAHM has requested moving forward with the sale of TDRs. To proceed, the Council must approve a Resolution designating the Roth Building as a "Sender Site." The purpose of the Transfer of Development Rights (TDR) program is to encourage and support the rehabilitation of historic buildings. The program provides a floor area bonus for the qualified rehabilitation of Category 1 and 2 historic buildings and Seismic Category I, II, and III buildings which are either owned by the City of Palo Alto or located in the Downtown CD zone district. For City -owned property, floor area bonuses from eligible sender sites may be sold by the City on the open market through a public bid process. Funds from the sale are to be used to rehabilitate eligible City -owned historic buildings. PAHM provided an update on its current status, recent developments, and how it intends to move forward in completing the rehabilitation of the Roth Building and maintaining ongoing operations. The City has extended the Option to Lease and the Conditional Use Permit (CUP) several times to allow PAHM to meet its goals and objectives. The current Option to Lease will expire on June 30, 2015. The CUP and Architectural Review are set to expire at the end of December of 2014. The application processing time to re -activate these permits is typically three to six months. BACKGROUND Background information on the development of the Roth Building since the City's acquisition in April 2000 is extensive. Since 2007 City staff and Museum personnel have examined a variety of proposals to fund the capital and operating needs of a Roth Building historical museum. Additional background information can be found by referring to CMRs 4703, 2197 and 2891. In the past ten years, PAHM has been working on completing the tasks that would enable them to renovate the Building and operate a history museum at the site. More recently and during a series of meetings with the City Manager and staff, PAHM has presented a new board and a series of innovative strategies to refocus its fund raising efforts and begin work on this project. In a recent study session which took place on March 24, 2014, PAHM presented to the Council an update of its activities regarding new board members, new vision, and fund raising progress. PAHM has also hired a new executive director to work on new strategies for the development of the Museum, to develop plans for the programming of the Museum and to assist with fund raising efforts to capitalize its construction budget as shown on (Attachment B) for rehabilitation of the Building. DISCUSSION New Vision of PAHM In the council Study Session on March 24, 2014, PAHM presented a new vision for the Museum which demonstrated how a small innovative community such as Palo Alto affected the lives of millions of people around the world. The History Museum would be dynamic with changing exhibits. The people in the community would contribute to the History Museum's shape and City of Palo Alto Page 2 design of exhibits. The educational aspect would engage the community to work together to create something new and to do something important. The History Museum would reveal the stories of individuals in the community. Individuals would be able to share their stories while visiting the History Museum. The History Museum would also be the permanent home of the City's archives. The Palo Alto Historical Association (PAHA) was digitizing the archives, and the History Museum would provide a digitization lab. A virtual museum would be a very important component of the History Museum. PAHM also discussed the fund raising challenges for the cost of rehabilitation of the Roth Building and additional funding for the creation of the Museum and requested assistance from the City in the form of grant, matching fund or a challenge grant. PAHM indicated that genre of philanthropy in Palo Alto was driven mainly by individuals since 85 percent of giving across the United States was from individuals, and 12 percent from foundations. The Board was focusing on those individuals in Palo Alto who would want to make an investment in the museum project. Some Council members discussed the possibility of support from the City in form of a straight grant or a matching grant to the Museum. It was noted that the City had an issue regarding the rear wings not being a part of the historic structure. Part of the rehabilitation costs was repairs to the back half of the building and it was possible that the City bore some responsibility for the condition of the back half of the building. Funding Requests by PAHM: One Time Contribution Recently the Museum has approached the City with several requests. The first request is for the City to provide up to one ($1,000,000) million toward the seismic retrofit cost of the building. PAHM Board Members indicated that there are past precedents to support this request since as a part of Capital improvement plan, the City upgrades, renovates and supports its public buildings. In 1995, the Council approved a contract in the amount of $625,461 to the structural upgrades and related renovations for the Avenidas Building. Note that any contribution made by the City would likely trigger the prevailing wage requirement under newly adopted SB7 and the City's recent implementing resolution. In addition, the City's Municipal Code requires public works projects1 to be competitively bid, though this requirement can be modified by Council resolution in certain situations. See PAMC Section 2.30.100 and 2.30.300 (see Attachment C). Matching Challenge The Museum's second request is for the City to issue a funding challenge where PAHM would be able to get matching donations if the City offered $1.2 million toward the project cost. PAHM believes that a matching grant would be a trigger event for the donor community that 1 Public works projects are defined in the Code as "a contract paid for in whole or in part out of public funds for the construction, alteration, repair, improvement, reconstruction or demolition of any public building, street, sidewalk, utility, park or open space improvement, or other public improvement." PAMC Section 2.30.100. City of Palo Alto Page 3 will result in additional momentum to assist the museum in its effort toward raising enough capital to begin the rehabilitation work of the Building. Request by PAHM for the City to Initiate Sale of Transfer Development Rights (TDRs) PAHM have always included the potential value of the TDRs for the Roth Building as a part of its projected budget and funding plans. Recently the PAHM has approached the City with a request to assist its fundraising for the building rehabilitation efforts by initiating the TDR sale process and designating the proceeds from the future sale of TDRs to the Roth Building project. The TDR program provides a floor area bonus for the qualified rehabilitation of Category 1 and 2 historic buildings and Seismic Category I, II, and III buildings which are either owned by the City of Palo Alto or located in the Downtown CD zone district. For City -owned property, floor area bonuses from eligible sender sites may be sold by the City on the open market through a public bid process. Provisions for eligible City -owned buildings to participate in the TDR program are outlined in Chapters 18.18.080 and 18.28.060 (see attachment D) of the Palo Alto Municipal Code (PAMC). First, the Council must designate by resolution City -owned buildings that are Category I or Category 2 on the City's historic inventory or Category I, II or I I I on the City's seismic hazards identification list as eligible to participate as a "sender site" in the TDR program. The Roth Building is a Category 2 historic building on the City of Palo Alto Historic Inventory and as such qualifies to be a "sender site" in accordance with Chapter 18.28.060(d). The purpose of the TDR program is to encourage and support the rehabilitation of historic buildings. As a Category II resource, and with the planned historic rehabilitation of the building, the Roth Building would be eligible as a "sender site" for a 9,592 square foot floor area bonus. The Municipal Code used to allow up to 5,000 square feet of TDR square footage to be exempted from the parking requirements. This provision is no longer provided in the code and it is understood that any new TDR square footage generated by the Roth building will not come with a parking exemption. The TDR program allows the City to sell the floor area bonus from the Roth Building at market rates. Funds from the sale are to be used to rehabilitate eligible City -owned historic buildings, and in this case PAHM is requesting that these funds ultimately be dedicated to the Roth Building itself. The TDR funds are contemplated in PAHM's business plan. PAHM is requesting that the City move forward with the sale of the TDRs as part of a plan to raise an estimated $8.2 million to fund the rehabilitation costs. The current real estate development market is showing signs of strength, supporting the release of an RFP for the Roth TDRs. The last RFP for TDRs on September 2011 set the minimum price at $90.00, and there was no response due to a slow real estate market. Staff will do additional research to set the value range based on the current real estate market demands and based upon these values, and assuming bids are responsive to the value within these ranges, staff will set a minimum bid price in a similar range. The staff will establish and maintain a special fund into which all proceeds from the sale of TDRs will be deposited and will be used toward the rehabilitation of the Roth Building. City of Palo Alto Page 4 Issuing the TDRs now would commit the City, as the legal owner of the Roth Building, to renovate the building in accordance with the Secretary of Interior Standards. The City does not have an estimate of the cost of such repairs, but they will likely be significantly more than the projected TDR revenues. For this reason, the typical practice for other City owned buildings is not to issue TDR's until a construction contract has been let for the rehabilitation work. Issuing TDR's at this early stage would be a departure from past practice. An alternative to issuing TDR's in advance of award of the construction contract is for the City to advance funds to the Roth Building in lieu of selling the TDRs (for example, up to $ 1 million). If the project does not move forward, the Museum would refund the pledge to the City, If the Museum moved forward with the construction, the City could sell the TDR's and reimburse the Infrastructure Fund for the $1,000,000 loan and apply any excess TDR proceeds to rehabilitation work for the Building. Budget PAHM continues its fund raising efforts to reach the goal of $9.1 million for the rehabilitation cost of the Building. During the next six month, the Museum must continue to refine its business plan, raise necessary funds for the renovation, and any other discretionary approvals that may be required for the project and provide evidence of sufficient financial security to complete, operate and maintain the project. The Museum reports the following information and potential financial resources regarding Capital Campaign for Phase one and two of the Roth Building. Total Required Funding for rehabilitation, set up of the museum based on exhibits and Program, plus operating cost is projected to be $20.00 million (see Attachment E). Phase One Budget Table: Phase One refers to rehabilitation cost of the Roth Building: Cost Item Other Funding Sources Identified & Projected Budget Building Project Total Rehabilitation Cost $9,100,000 Initial Capital project investment, architectural, arborist, City and Contractor Fees (already spent) ($600,000) TDRs $1,000,000 Library Impact Fees $3,00,000 Project Gifts in Hand $400,000 Pledges in Hand $2,500,000 Total (not including Initial Capital Investment) $4,200,000 $8,500,000 Phase One — Present Capital shortfall $4,300,000 City of Palo Alto Page 5 Phase Two refers to creation of the exhibits and programs for the Museum: Phase Two — Present Capital Shortfall Operating Cost: Operating cost through 2017 $9.0 M $1.9 M In summary, the Museum notes the challenge to fundraising but is confident that its fundraising goal for the rehabilitation of the Building is within reach by the end of the next calendar year, and that all remaining Option conditions will be met and permits granted to enable the Museum to sign the lease and begin construction on the rehabilitation of the building within the next twelve months. Alternatives Options for the Roth Building The following options may also be considered for the future use of the building if the current lease option is not renewed past June 30, 2015. 1. The City develops a joint project with PAHM and use a portion of the building for City use. 2. The City takes control of the building, completes the rehabilitation, and uses it for City office or other uses for which we are currently renting space. 3. The City cancels option agreement with PAHM, and issues a new RFP. TIMELINE Staff will return to Council in the future to report on new efforts to raise funds to complete the rehabilitation project of the Roth building. In the meantime, the Palo Alto Historical Museum will continue its fundraising efforts until it is ready to exercise its option to enter into a long term lease with City for the Roth Building. The entitlements expire in December 2014 and the Lease Option will expire on June 30, 2015. RESOURCE IMPACT The City continues to provide minor maintenance to the building such as repairing/replacement of broken windows, monitoring the condition of the roof as needed, and providing minimal heat/ventilation in the finished areas to try to prevent further deterioration of the finishes. The estimated annual cost to the City for this maintenance and periodic monitoring is approximately $5,000 annually. City staff will need to allocate time to process an RFP in order to market the TDRs. If the City Council approves PAHM for funding and matching funds a total of $2.65 million would need to be allocated from General Fund which would require reprioritizing infrastructure projects and/or reductions to reserves. POLICY IMPLICATIONS City of Palo Alto Page 6 The proposed requests by PAHM do not represent any changes to existing City policy. ENVIRONMENTAL REVIEW Designation of the Roth Building site as an eligible TDR "sender" site is Categorically Exempt from California Environmental Quality Act (CEQA) review under CEQA guidelines section 15305, Minor Alterations in Land Use Limitation. The rehabilitation project is Categorically Exempt from CEQA review pursuant to CEQA guidelines section 15331, Historical Resource Restoration/Rehabilitation, as a project limited to maintenance, repair, and rehabilitation in accordance with the secretary of interior standards for historic preservation. Attachments: • Attachment A - PAHM Cost Information Proposal Letter 2014 (PDF) • Attachment B -PAHM - Building Budget 2014 (PDF) • Attachment C- PAMC (DOCX) • Attachment D - PAMC(DOCX) • Attachment E - Projected Budget and Request by PAHM for the ROTH Building (PDF) City of Palo Alto Page 7 Attachment A December 10, 2014 Lalo Perez Director of Administrative Services City of Palo Alto Dear Mr. Perez, The Palo Alto History Museum looks forward to presenting information to the City Council pursuant to the rehabilitation of the Roth Building and its eventual use as a museum facility. Our presentation will include estimated costs for two phases so Council members may see the project's full scope, however we are only asking for financial support for the Phase 1 effort: rehabilitation of the city -owned building so that it can be occupied. Attached are two documents outlining our projected costs and our request to the City. 1) Projected Costs: - Phase 1. This is the total rehabilitation of the Roth Building including architectural fees, permits and other fees. The total estimate is $9.1M. Costs have gone up due to a reassessment of the construction budget from Vance Brown Construction and other items not included in the previous budget. Our numbers from VB are current, and include contingencies for construction unknowns. Phase 1 delivers a basic "warm shell" with no furnishings. - Phase 2. This is the actual build -out of the museum, including exhibits, programs, offices, and other facilities. The estimate is $9.0M. We have full detail on how this budget was constructed by our Executive Director, Myron Freedman, who will be at the Council meeting. He is experienced in museum design and construction. - Operating Costs. We are including an estimate of $1.9M for museum operating costs through 2017 in our Total Campaign budget. Our operating cost pro -forma through 2020 is nearly done and will be with us at the meeting. - Total Campaign. Our total estimate for a fully functioning museum is $20M, including Operating Costs through 2017. - TDRs. Our assumption is that the TDRs will be sold with a minimum value of $1M. It is very likely the value will be higher and this will affect or proposal to the City. Palo Alto History Museum, P.O. Box 676, Palo Alto, CA 94301 Page 1of2 Attachment A 2) Proposal to City: - Initiate TDR sale. - Cover cost of back wall repair, estimated at $1.0 M (including contingencies). - Offer a Challenge Grant of 50% of the remaining Phase 1 gap, to be matched by PAHM. This gap, currently estimated at $3.3M, will change depending on TDR value. Thank you for your time and attention. Please let me know what questions you may have that we can answer before the meeting. Many thanks, Rich Green Palo Alto History Museum Board President 650-799-1497 Palo Alto History Museum, P.O. Box 676, Palo Alto, CA 94301 Page 2 of 2 Attachment B VANCE BROWN BUILDERS 3197 PARK BLVD PALO ALTO CA 94306-2233 PHONE 650 849 9900 FAX 650 849 9908 LICENSE # 122847 Palo Alto History Museum 300 Homer Avenue, Palo Alto, CA 1/15/12 Set of Drawings CONTRACTOR Vance Brown, Inc ARCHITECT: Garavaglia Architecture, Inc DATE: 10/31/14 GROSS SQ. FT. 20,580 10/31/14 NO. ITEM DESCRIPTION Estimate $/SF 1 Construction Permit Fees/Utility Eng. Fees - 2 Construction Surveying 16,652 0.81 3 Hazmat/Remediation 80,003 3.89 4 Demolition 219,844 10.68 5 Grading, Earthwork & Paving 160,218 7.79 6 Site Utilities 106,090 5.15 7 Site Concrete 25,450 1.24 8 Signage/Site Specialites/Awnings 8,970 0.44 9 Parking Lot Striping 776 0.04 10 Landscaping 95,029 4.62 11 Reinforcing Steel 29,210 1.42 12 Concrete - Foundations, Slabs, Shotcrete 220,858 10.73 13 Structural Steel/Misc Metals/Railings 203,788 9.90 14 Masonry 91,023 4.42 15 Rough Carpentry 760,513 36.95 16 Millwork and Running Trim 247,301 12.02 17 Finish Carpentry Restoration Areas - - 18 Waterproofing 17,940 0.87 19 Insulation & Fire Safing 18,952 0.92 20 Roofing 168,234 8.17 21 Architectural Sheetmetal 137,506 6,68 22 Sealants 15,525 0.75 23 Doors, Frames & Hardware 236,457 11.49 24 Aluminum, Glass & Storefront Systems 313,167 15.22 25 Interior Drywall, Plaster, & Exterior Plaster 370,485 18.00 26 Ceramic Tile 122,533 5.95 27 Acoustical Ceilings 47,929 2.33 28 Floor Finishes 169,019 8.21 29 Painting 138,345 6.72 30 Toilet Partitions, Lockers & Accessories 50,002 2.43 31 Kitchen Equipment - - 32 Elevators 271,060 13.17 33 Fire Sprinklers 155,233 7.54 34 Plumbing 153,077 7.44 35 HVAC 515,948 25.07 36 HVAC - Upgrade to Museum Spec - 37 Electrical 673,166 32.71 38 Fire Alarm - - 39 Tele/Data Wiring 79,583 3.87 40 Security Systems 37,139 1 80 41 General Conditions 632,897 30 75 42 Janitorial Clean-up 46,741 2.27 SUBTOTAL 6,636,660 322.48 GENERAL CONTRACTOR'S FEE (5%) 331,833 16.12 PROPOSED CONTRACT AMOUNT 6,968,493 338.61 DESIGN & ESTIMATING CONTINGENCY CONSTRUCTION BUDGET W/EST. & DESIGN CONT. 418,110 20.32 CONSTRUCTION CONTINGENCY 7,386,603 358.92 221,598 10.77 CONSTRUCTION BUDGET ALL CONTINGENCIES 7,608,201 369.69 VANCE BROWN INC. PAHM - Estimate (10.31.14).xls Page 1 of 1 Attachment C PART 2 -- CONTRACT TYPES Q 2.30.100 Public works contract. A public works contract is a contract paid for in whole or in part out of public funds for the construction, alteration, repair, improvement, reconstruction or demolition of any public building, street, sidewalk, utility, park or open space improvement, or other public improvement. (Ord. 4827 § 1 (part), 2004) PART 4 -- COMPETITIVE SOLICITATION REQUIREMENTS 2.30.300 Public works contracts. Public works contracts not exempt from these competitive solicitation requirements under Section 2.30.360 or by resolution of the city council shall be solicited as follows: (a) Public works contracts providing for an estimated expenditure of $65,000.00 or less, and not otherwise required to be formally bid by the Charter, shall be solicited by informal bid in accordance with the provisions of Section 2.30.400. (b) Public works contracts providing for an estimated expenditure exceeding $65,000.00 shall be solicited by formal bid in accordance with the provisions of Section 2.30.420. (c) Article VII, Section 6 of the City Charter requires formal bidding only for public works contracts funded by bonded indebtedness of the city or by assessment against particular property in the city. However, the intent of this Section 2.30.300 is to require formal bidding for all public works contracts exceeding $65,000.00, unless exempt as provided in Section 2.30.360 or by resolution of the council as provided in this Section 2.30.300. The council may determine by resolution that a particular public works project may be solicited and contracted for using alternate project delivery methods, including but not limited to design build, construction manager at risk, or competitive negotiation. Any such resolution shall set forth the reasons supporting the use of the alternate project delivery method for the project and describe the solicitation method to be used and the criteria for determining the party to whom the contract should be awarded. (Ord. 4827 § 1 (part), 2004) Attachment D 18.18.080 Transfer of Development Rights (a) Purpose The purpose of this section is to implement the Comprehensive Plan by encouraging seismic rehabilitation of buildings in Seismic Categories I, II, and III, and encouraging historic rehabilitation of buildings or sites in Historic Category 1 and 2, and by establishing standards and procedures for the transfer of specified development rights from such sites to other eligible sites. Except as provided in subsection (e)(1) and for city -owned properties as provided in Chapter 18.28, this section is applicable only to properties located in the CD district, and is the exclusive procedure for transfer of development rights for properties so zoned. (b) Establishment of Forms The city may from time to time establish application forms, submittal requirements, fees and such other requirements and guidelines as will aid in the efficient implementation of this chapter. (c) Eligibility for Transfer of Development Rights Transferable development rights may be transferred to an eligible receiver site upon: (1) Certification by the city pursuant to Section 18A 8.070 of the floor area from the sender site which is eligible for transfer; and (2) Compliance with the transfer procedures set forth in subsection (h). (d) Availability of Receiver Sites The city does not guarantee that at all times in the future there will be sufficient eligible receiver sites to receive such transferable development rights. (e) Eligible Receiver Sites A site is eligible to be a receiver site only if it meets all of the following criteria: (1) It is located in the CD commercial downtown district, or is located in a planned community (PC) district if the property was formerly located in the CD commercial downtown district and the ordinance rezoning the property to planned community (PC) approves the use of transferable development rights on the site. (2) It is neither an historic site, nor a site containing a historic structure, as those terms are defined in Section 16.49.020(e) of Chapter 16.49 of this code; and (3) The site is either: (A) Located at least 150 feet from any property zoned for residential use, not including property in planned community zones or in commercial zones within the downtown boundaries where mixed use projects are. (B) Separated from residentially zoned property by a city street with a width of at least 50 feet, and separated from residentially zoned property by an intervening property zoned CD -C, CD -S, or CD -N, which intervening property has a width of not less than 50 feet. (f) Limitations On Usage of Transferable Development Rights No otherwise eligible receiver site shall be allowed to utilize transferable development rights under this chapter to the extent such transfer would: (1) Be outside the boundaries of the downtown parking assessment district, result in a maximum floor area ratio of 0.5 to 1 above what exists or would otherwise be permitted for that site under Section 18.18.060, whichever is greater, or result in total additional floor area of more than 10,000 square feet. (2) Be within the boundaries of the downtown parking assessment district, result in a maximum floor area ratio of 1.0 to 1 above what exists, or would otherwise be permitted for that site under Section 18.18.060, whichever is greater, or result in total additional floor area of more than 10,000 square feet. (3) Cause the development limitation or project size limitation set forth in Section 18.18.040 to be exceeded. (4) Cause the site to exceed 3.0 to 1 FAR in the CD -C subdistrict or 2.0 to 1 FAR in the CD -S or CD -N subdistricts. (g) Parking Requirements Any square footage allowed to be transferred to a receiver site pursuant to this chapter shall be subject to the parking regulations applicable to the district in which the receiver site is located. (h) Transfer Procedure Transferable development rights may be transferred from a sender site (or sites) to a receiver site only in accordance with all of the following requirements: (1) An application pursuant to Chapter 16.48 of this code for major ARB review of the project proposed for the receiver site must be filed. The application shall include: (A) A statement that the applicant intends to use transferable development rights for the project; (B) Identification of the sender site(s) and the amount of TDRs proposed to be transferred; and (C) Evidence that the applicant owns the transferable development rights or a signed statement from any other owner(s) of the TDRs that the specified amount of floor area is available for the proposed project and will be assigned for its use. (2) The application shall not be deemed complete unless and until the city determines that the TDRs proposed to be used for the project are available for that purpose. (3) In reviewing a project proposed for a receiver site pursuant to this section, the architectural review board shall review the project in accordance with Section 16.48.120 of this code; however, the project may not be required to be modified for the sole purpose of reducing square footage unless necessary in order to satisfy the criteria for approval under Chapter 16.48 or any specific requirement of the municipal code. (4) Following ARB approval of the project on the receiver site, and prior to issuance of building permits, the director of planning and community environment or the director's designee shall issue written confirmation of the transfer, which identifies both the sender and receiver sites and the amount of TDRs which have been transferred. This confuiation shall be recorded in the office of the county recorder prior to the issuance of building permits and shall include the written consent or assignment by the owner(s) of the TDRs where such owner(s) are other than the applicant. (i) Purchase or Conveyance of TDRs - Documentation (1) Transferable development rights may be sold or otherwise conveyed by their owner(s) to another party. However, no such sale or conveyance shall be effective unless evidenced by a recorded document, signed by the transferor and transferee and in a form designed to run with the land and satisfactory to the city attorney. The document shall clearly identify the sender site and the amount of floor area transferred and shall also be filed with the department of planning and community environment. (2) Where transfer of TDRs is made directly to a receiver site, the recorded confirmation of transfer described in subsection (h)(4) shall satisfy the requirements of this section. (Ord. 5214 § 3, 2013: Ord. 4923 § 4 (part), 2006) 18.28.060 Additional PF District Design Requirements The following additional regulations shall apply in the PF district: (a) Recycling Storage All new development, including approved modifications that add thirty percent or more floor area to existing uses, shall provide adequate and accessible interior areas or exterior enclosures for the storage of recyclable materials in appropriate containers. The design, construction and accessibility of recycling areas and enclosures shall be subject to approval by the architectural review board, in accordance with design guidelines adopted by that board and approved by the city council pursuant to Section 16.48.070.* * Editor's Note: Chapter 16.48, Architectural Review, was repealed in its entirety by Ordinance No. 4826, § 21, 2004. (b) Employee Shower Facilities Employee shower facilities shall be provided for any new building constructed or for any addition to or enlargement of any existing building as specified in Table 3. Table 3* Employee Showers Required Uses Gross Floor Area of New Construction(ft2) Showers Required 0-9,999 No requirement All government or special district facilities 10,000- 1 designed for employee occupancy, colleges and 19,999 universities, private educational facilities, business and trade schools and similar uses 20,000- 49,999 2 50,000 and up 4 * Editor's Note: Ordinance 5062 § 2, 2009, added a new Table 3 to § 18.28.050, thereby duplicating the numbering of this table. Future legislation will eliminate the redundancy when necessary. (c) Landscaping of Yards (1) All required interior yards (setbacks) abutting or opposite a residential district shall be planted and maintained as a landscaped screen. (2) For sites abutting a residential district, a solid wall or fence between 5 and 8 ft in height shall be shall be constructed and maintained along the common site line. (d) Transfer of Development Rights* (1) The city council by resolution may, from time to time, designate one or more city - owned buildings that are Category 1 or Category 2 on the city's historic inventory and/or Category I, II, or III on the city's seismic hazards identification list as eligible to participate as "sender sites" in the Transfer of Development Rights program as provided in Chapter 18.18. (2) Before any transferable development rights are offered for sale, the city manager shall establish, in writing, a public process using the city's formal bidding procedures to sell bonus floor area development rights from any sites so designated by the city council. (3) Before formally soliciting the participation of other organizations or agencies in the rehabilitation of a city -owned historic building, the city should have a historic structures report prepared by a qualified expert in accordance with the standards and guidelines of the California State Office of Historic Preservation. (4) Before concluding a sale of transferable development rights for any city building, the city shall comply with Section 18.18.080. (5) The city manager shall establish and maintain a special fund into which all proceeds of the sale of transferable rights, and any interest thereon, shall be deposited. Upon receipt and entry into the accounting records for the fund such monies shall be considered committed to the rehabilitation of the city -owned building from which the development rights were sold, or to the rehabilitation of other city -owned buildings in the Historic Category 1 or 2 or Seismic Hazard Categories I, II, or III. (Ord. 5062 § 3, 2009: Ord. 4964 §§ 4 (part), 16, 2007) * Editor's Note: Subsection (d) derives from former Section 18.32.090, as adopted by of Ordinance 4862, § 2, 2005. Attachment E December 9, 2014 PAHM Proposal to City Current Estimated Gap to Complete Rehabilitation Project [1] $4.3M Proposal to City 1) City to initiate TDR sale (Estimate of $1M included above) 2) City to pay for back -wall reconstruction costs, estimated at $1.0M 3) City to offer Challenge Grant to offset Roth Bldg rehab costs [2] $1.65M 4) PAHM meets Challenge Grant $1.65M [1] Estimated gap assumes $1M payment for TDR. TDR value will be determined at time of sale. The figure may be higher than $1M. [2] Challenge Grant will be 50% of remaining gap to complete Phase 1 Rehab. This amount could be reduced by a higher TDR value. Palo Alto History Museum, P.O. Box 676, Palo Alto, CA 94301 Page 1of2 Attachment E Palo Alto History Museum - Phase One Roth Building Rehabilitation 1) Roth Building Rehabilitation Total (including architecture and fees) $9.1M 2) Capital Expenditures To -Date $0.6M 3) Funding Sources TDR 1.OM [a] Library Impact Fee (Archives) 0.3M Gifts in Hand 0.4M Pledges in Hand 2.5M Total Available Funding $4.2M 4) Phase One Capital Needed $4.3M 5) Phase Two - Museum Exhibits and Programs $9.OM 6) Operating Costs Through 2017 $1.9M 7) Total Campaign $20.OM As of December 9, 2014 [a] TDR value will be determined at time of sale. The figure may be higher than $1M. Page 2 of 2 CITY OF PA O ALT CITY OF PALO ALTO MEMORANDUM TO: HONORABLE CITY COUNCIL FROM: CITY MANAGER AGENDA DATE: December 15, 2014 SUBJECT: Agenda Item No. 21 COUN MEETING la Is LI- Placed Before Meeting Received at Meeting DEPARTMENT: PLANNING AND COMMUNITY ENVIRONMENT ID#: 5387 Approval Of The Proposed Grocery Store Tenant (College Terrace Market) Within PC 5069 (College Terrace Centre) Based On The Finding That The Proposed Grocery Tenant Would Likely Be Comparable In Quality Of Products And Services As JJ&F As It Existed And Operated On December 7, 2009 At 2180 El Camino Real Attachment B of Agenda Item No. 21 which you had received in your packet of December 17th did not contain signatures from parties concerned. Please find attached the following signed Exhibit pages. • BSD Letter to City Manager — SIGNATURE PAGE • EXHIBIT 1— SIGNATURE PAGE — Manatt Letter to Cara Silver Outlining BSD's Role • EXHIBIT 4a — SIGNATURE PAGE - LOI • EXHIBIT 4b — SIGNATURE PAGES — Assignment and Assumption of Grocery Lease • EXHIBIT 8 — SIGNATURE PAGE — Restrictive Covenant These pages have been uploaded and posted online and hardcopies will be made available on the public table. AN Planning and Community Environment Attachment S KEENE Manager Signature Page of BSD Letter Brian Spiers Development applicable grocery store tenant is not replaced with another grocery store tenant that begins business operations within such 6 -month period, the City shall have the right, but not the obligation, to levy a penalty against Owner, or any successor owner of the Property, as the case may be, in the amount of Two Thousand Dollars and 00/100s ($2,000.00) (the "Penalty") for each day after each 6 -month period that a grocery store is not in operation within College Terrace Centre in accordance with the terms of the PC Ordinance." The Restrictive Covenant also allows for City enforcement and inspections: "Upon no less that two (2) business days' prior written notice, City shall have the right to inspect grocery store operations once per year for the sole purposes of confirming that (i) the Replacement Tenant, or any subsequent tenant, is providing products and services typical of a neighborhood serving store such that it shall not become a convenience mart facility and (ii) such products and services are comparable in quality to those of JJ&F as it existed and operated on December 7, 2009." This agreement meets the Council's requirements as set forth in the December 1, 2014 City Council meeting. V. Conclusion As we have shown above, the proposed owner/operator lease holder The Grocery Men 1, LLC dba College Terrace Market meets the requirements as set forth by the City Council. Additionally, the Restrictive Covenant will allow the City of Palo Alto a tool for enforcement of the PC Ordinance. We ask that the City Council provide approval of the proposed grocery tenant. Sincerely, Brian Spiers President, Brian Spiers Development, LLC Managing Member, College Terrace Centre, LLC cc: Harry Fox (attorney for College Terrace Centre, LLC) (00095686-iiPage 7 of 8 Exhibit manatt manatt J phelps I phillips Cara E. Silver, Esq. City of Palo Alto December 8, 2.0.14 Page 2 Should you or the Palo Alto City Council have any questions in ds to the substance of this letter, please let me know. MCP:ehs cc: Client (via email) City Council (via email) Ms. Hillary Gitelman (via email) Mr. James Keene (via email) ACKNOWLEDGED AND AGREED: CLARA E. CH: MC(3TE TRUST, an irrevocable trust created under California law BY: e: Jo eph E. Oeschger hie: Trustee q13594221.1 ae7 t:. Polentz Exhibit 4a Miki Werness, Addison Wright and Christopher Iversen Page 2 If these terms are acceptable, please indicate by signing and returning a copy of this letter. We will then proceed to drafting and execution of the legal documents, This Letter of Intent may be executed by facsimile or scanned .pdf (or similar electronic file format) and in any number of counterparts and when so executed, all of such counterparts shall constitute a single instrument. College Terrace Centre, LLC By: Brian : pie Development, LL , is „ anager By: Brian Spiers, its Manag r MiikkiWarnpss Addison Wright Christopher Iversen (00095Ge4.1) Exhibit 4b [Signature page to Assignment and Assumption of Lease.] IN WITNESS WHEREOF, the parties hereto have executed this Assignment effective the day and year first above written. Assignor: J&A FAMILY MARKETS, Cali %i a corporation ;00095656-4; Assignee: a THE GROCERY ME 1, X CC, an Arizona limited liabilit compa By iki Wetness, its Manager Approved by of other Members of Assignee: Christopher Iversen, Member Addison Wright, Member Exhibit 8 [Signature page to Assignment and Assumption of Lease.] IN WITNESS WHEREOF, the parties hereto have executed this Assignment effective the day and year first above written. Assignor: Assignee: J&A FAMILY MARKETS, INC., a THE GROCERY MEN 1, LLC, an Arizona California corporation limited liability company By By: Miki Werness, its Manager Name Title Approved by of other Members of Assignee: • Christopher Iversen, Member Addison Wright, Member {00095656-4} 3 [Signature page to Assignment and Assumption of Lease.] IN WITNESS WHEREOF, the parties hereto have executed this Assignment effective the day and year first above written. Assignor: Assignee: J&A FAMILY MARKETS, INC., a THE GROCERY MEN 1, LLC, an Arizona California corporation limited liability company By Name Title {00095656-4} 3 By: Miki Werness, its Manager Approved by of other Members of Assignee: Christopher Iversen, Member Addison Wright, Member LANDLORD'S CONSENT Landlord hereby consents to the Assignment to which this consent is attached and accepts Assignee as Assignor's successor under the Lease. From and after the Effective Date of the Assignment, Assignee shall be entitled to all rights and estates of the Tenant under the Lease. Landlord waives, for the benefit of Assignee only, any prior defaults of Tenant pursuant to the Lease. The foregoing waiver shall not apply to any future default or breach of obligations of any Tenant pursuant to the Lease and Landlord retains all rights and remedies pursuant to the Lease with respect to any future default or breach. Landlord waives any requirement that existing guarantors of the Lease consent to this Assignment. Landlord agrees that, upon timely satisfaction of each of the conditions set forth in Section 2 of the foregoing Assignment, Assignor's liability under the Lease shall terminate and be of no further force or effect, the persons who previously guarantied the Assignor's obligations pursuant to the Lease shall be released from their guaranty obligations. Within ten (10) business days after the timely satisfaction of such conditions Landlord shall return to Assignor the security deposit previously made by Assignor. Landlord: College Terrace Centre LLC, a California limited liability company By: Brian Spiers Development, LLC, a California limited liability company, its Ma an��aer By: (00095656-4} Brian Spiers, its Manager /t/Q;1,-- 4 IN WITNESS WHEREOF, the Parties have entered into this Restrictive Covenant as of the date first set forth above. OWNER COLLEGE TERRACE CENTRE LLC a California Limited Liability Company By: Brian Spiers Development, LLC a California Limited Liability Company Its Manager By: Its: Brian Spiers Manager 5 CITY CITY OF PALO ALTO; a California municipal corporation By: City Manager Approved as to Form By: City Attorney CITY OF PALO ALTO City of Palo Alto (ID # 5387) City Council Staff Report Report Type: Action Items Summary Title: College Terrace Market Meeting Date: 12/15/2014 Title: Approval of the Proposed Grocery Store Tenant (College Terrace Market) Within PC 5069 (College Terrace Centre) Based on the Finding that the Proposed Grocery Tenant Would Likely be Comparable in Quality of Products and Services as JJ&F as it Existed and Operated on December 7, 2009 at 2180 El Camino Real From: City Manager Lead Department: Planning and Community Environment Recommendation Staff recommends that the City Council: 1. Adopt a motion approving the grocery store tenant of the development at 2180 El Camino Real, finding that the proposed tenant is likely to be comparable in quality of products and service to the former JJ&F market as it existed and operated on December 7, 2009 and 2. Authorize the City Manager or designee to execute the Restrictive Covenant (Attachment C) to ensure the continued viability of the grocery store community benefit. Executive Summary Subsequent to the City Council's review of the proposed grocery store tenant for the College Terrace Centre on December 1, 2014, the owner of the property elected to modify the project development team. The new team has proposed an alternate grocery store tenant and is requesting the City Council's approval so that construction can commence at the site. Specifically, Brian Spiers, who is a co-owner of the property, has replaced Patrick Smailey as the primary developer and has proposed a new grocery tenant owned and managed by Mike Werness and two investors. The new grocery entity will assume the lease originally executed with J&A Family Market, will be the sole lease holder, and wholly independent of both the owner and the developer of the project. According to Mr. Spiers, the new grocery tenant will have over $2 million in capital which, when City of Palo Alto Page 1 combined with multiple capital incentives from the landlord, will provide long term grocery business viability. Also, as requested by the City Council on December 1, 2014, a restrictive covenant between the owner and the City is proposed for recordation against the property, and will allow the City to levy a penalty against the property owner in the amount of $2,000 per day in the event that the grocery store goes out of business and is not replaced within six months. Background information is attached, including information about the proposed grocery tenant, the original lease, a document that will assign that lease to the new grocery tenant, and the proposed covenant. Background On January 11, 2010, the City Council approved Planned Community (PC) Ordinance 5069 for a new mixed use development at 2180 El Camino Real. The approved development consists of 57,900 square feet of floor area to be developed within three new buildings over a two level below grade parking structure. The approval includes 8,000 square feet for a grocery store, 5,580 square feet of other ground floor retail space, and 38,980 square feet of office space. Eight below -market -rate residential apartment units were also approved. The provision of a neighborhood grocery store on the property is one of the primary public benefits of the project. At the time of the original project approval, it was understood that the grocery store that operated on the property at that time, JJ&F, would continue its operation in the new project once it was built. When John Garcia, the individual that represented JJ&F, declined to return as the grocery operator, the terms of the PC ordinance made the replacement grocery tenant subject to City approval, stating specifically: "The grocery tenant, if it is a party other than John Garcia (DBA JJ&F), shall be subject to the prior approval of the City of Palo Alto," and further stating that the City's approval: "shall not be withheld unless the City reasonably finds that such proposed grocery tenant is not likely to be comparable in qualify of products and service as JJ&F as it existed and operated on December 7, 2009." (The PC zoning ordinance is provided as Attachment A.) In August 2014, the project applicant proposed a grocery tenant, J&A Family Market, owned by James Smailey, a member of the development team. The City Council considered this tenant at a public meeting on August 11, 2014, and adopted a motion indicating that the applicant had not submitted sufficient information for the City to reasonably find that the proposed grocery tenant is likely to be comparable in quality of products and services as the former JJ&F Market as it existed and operated on December 7, 2009. City of Palo Alto Page 2 In November 2014, the project applicant proposed a modified arrangement, adding an experienced Grocery Operations Officer, Uriel Chavez, to the team that would operate the market under the name College Terrace Market. The City Council considered this arrangement at a public meeting on December 1, 2014 and adopted a motion rejecting the arrangement and requesting an alternate grocery tenant or team. Specifically, the Council's motion stated: MOTION: Council Member Klein moved, seconded by Vice Mayor Kniss to reject the tenant as not likely to be comparable in quality of products and services and direct staff to return on December 8, 2014 on the Consent Calendar with notice of an extension to the PC ordinance until March 31, 2015. AMENDMENT: Council Member Scharff moved, seconded by Council Member Burt approval of the following conditions of approval, which shall be included in a voluntary agreement to be executed by the City Manager and the property owner before issuance of any grading, excavation or building permit: 1. The Council finds that the current proposal does not meet the findings required by the PC Ordinance because it does not provide long term grocery business viability; 2. The Owner/Applicant shall modify its contractual arrangements so as to lease the grocery tenant space directly with an experienced grocery store owner operator team; 3. The operator shall be subject to approval by the City Council; 4. Daily penalties of $2,000 in the event the approved market goes out of business and is not replaced with another experienced grocery operator within six months; 5. Direct staff to return on December 8, 2014 on the Consent Calendar with notice of an extension to the PC ordinance until March 31, 2015. This motion articulated Council's direction regarding the grocery tenant and did not alter the uses or public benefits included in the PC Ordinance. On December 8, 2014, the City Council adopted a resolution extending the PC Ordinance until March 31, 2015. This action also did not alter the PC Ordinance, which references a development schedule effective "unless an extension is granted." Discussion On October 17, 2014, Brian Spiers Development, LLC, became a co-owner and the sole manager of the property located at 2100-80 El Camino (Attachment B). Patrick Smailey is no longer involved in the development of the project. The modified development team for the project at 2180 El Camino Real has proposed a grocery story tenant which will be solely owned and City of Palo Alto Page 3 managed by Miki Werness and two investors. Mr. Werness is a grocer known to the Palo Alto community. The new tenant will assume the lease with J&A Family Market, and pay monthly rent of $22,500 after the first six months of free or reduced rent, as well as expenses. The landlord has guaranteed the grocery store rent to the real estate lender for the term of the lease, and has agreed to pay a financial penalty of $2,000 per day if the grocery store goes out of business and is not replaced within six months.' Staff has met with Mr. Werness and Brian Spiers Development, and has reviewed the attached documents (Attachment B) regarding the proposed tenant and the proposed business arrangement between the property owner and the tenant.2 Staff believes the findings of comparability required by the PC Ordinance can be made based on Mr. Werness' experience and financial backing. In addition, staff believes that the new proposal addresses the key concerns about prior proposals articulated by the Council and community, which related to the experience of the lease holder and the market's long-term viability. Mr. Werness is clearly an experienced market operator and his business entity "The Grocery Men 1" will hold the lease and do business as "College Terrace Market." Mr. Spiers' request for approval of the grocery tenant directly addresses concerns that may be raised based on Mr. Werness' personal bankruptcy related to his earlier grocery business in Palo Alto. The materials note that: • Mr. Werness has partnered with two financial investors who have been independently vetted by Brian Spiers Development; • The closure of the Alma Village market was due to several factors outside the control of the owner/operator; • The conditions of the College Terrace Market will allow the grocery to flourish; • Mr. Werness has assembled more than $2,000,000 in new capital for the facility and grocery operating costs; • The property owner has contributed multiple financial incentives, including: (1) three months free rent; (2) three months % rent; (3) Lease guarantees and (4) below market rent. Also, Mr. Spiers and the ownership group have demonstrated their confidence in Mr. Werness by agreeing to a $2,000/day penalty, which shall be paid to the City in the event that the grocery goes out of business and is not replaced by a comparable tenant within six months. This financial penalty, which is essentially a voluntary condition of approval, is the subject of the proposed restrictive covenant. (Attachment C.) 1 This is four times the penalty in the City's current penalty schedule. The City's Municipal Code (Chapter 1.12 & 1.16) allows the City to establish a penalty schedule, which currently (effective May 12, 2014) specifies a $500 penalty for zoning violations. This has been interpreted as $500/day. 2 Signed copies of the documents will be provided "at places." City of Palo Alto Page 4 Timeline The project applicant has completed demolition and site preparation, and desires to pull a permit for excavation and grading immediately. Under the terms of the PC ordinance, the grocery tenant must be up and running before the balance of the project can be occupied. Policy Implications The College Terrace Center project was approved by PC Ordinance 5069 in January of 2010. Environmental Review The Council has heard a number of comments regarding changes in circumstances since the PC ordinance was originally adopted, and suggestions that additional review is required under the California Environmental Quality Act (CEQA). Staff does not agree that additional review is required because the College Terrace Center project was reviewed pursuant to CEQA prior to its approval, and the pending building permit applications are ministerial actions, which do not require review. Also, the only decision pending before the Council is whether to find a specific grocery tenant acceptable under the terms of the original PC ordinance and whether to enter into a restrictive covenant that would help to ensure that the public benefit in that original PC ordinance will endure. This decision — whether to approve one business entity or another — is not one that is germane to the physical impacts of the project analyzed under CEQA, and nothing in the Council's action would change any aspect of the approved project or require additional review. Attachments: • Attachment A: PC Ordinance 5069 (PDF) • Attachment B: Applicant Request and Supporting Information (PDF) • Attachment C: Restrictive Covenant (PDF) City of Palo Alto Page 5 Attachment A - Ordinance No. 5069 Ordinance of the Council of the. City of Palo Alto Amending Section 18.08.040 of the Palo Alto Municipal Code (The Zoning Map) to Change the Classification of Property Known as 2180 El Camino Real from Neighborhood Commercial (CN) District to PC Planned Community 5069 for a Mixed Use Project Having 57,900 Square Feet of Floor Area For A Grocery Store (intended for JJ&F Market), Other Retail Space, Office Space, and Eight Affordable Residential Units, With Two Levels Of Below -Grade Parking Facilities and Surface Parking Facilities For The College Terrace Centre, and Approval of Design Enhancement Exceptions to Allow a Sign Spire and Gazebo Roof to Exceed the 35 -Foot Height Limit, and to Allow Encroachment Into A Minimum Setback on Oxford Avenue. The Council of the City of Palo Alto does ORDAIN as follows: SECTION 1. (a) Carrasco and Associates c/o Linda Poncini ("the Applicant") on behalf of The Clara Chilcote Trust c/o Patrick Smailey ("property owner") formally applied on October 18, 2007 to the City for approval of a rezoning application (the "amendment") from CN `Neighborhood Commercial' to a Planned Community (PC) district for a site comprised of four parcels located at 2180 El Camino Real (the "Subject Property") to accommodate the uses set forth below. The City Council, after duly noticed public hearings held on July 13, 2009 and July 27, 2009 initiated the amendment process, and forwarded the project to the Planning and Transportation Commission (PTC) for review and recommendation, to be followed by Architectural Review Board (ARB) review and recommendation, and then final review and final action by the City Council. The PTC, after a duly noticed public hearing held on October 14, 2009, reviewed, considered, and recommended approval of the revised Initial Study draft Mitigated Negative Declaration and recommended that Section 18.08.040 (the Zoning Map) of the Palo Alto Municipal Code be amended to rezone the Subject Property to Planned Community to permit construction of the proposed project located as shown on `Exhibit A,' attached to this document and incorporated by reference. Draft conditions of project approval `Exhibit B' attached to this document and incorporated by reference were presented to the PTC for review and comments. (b) (c) 100114 syn 8261209 1 (d) The ARB, after a duly noticed public hearing held . on November 5, 2009, reviewed the project design and recommended that the City Council approve the project with associated draft conditions of approval `Exhibit B.' (e) The PTC, after a duly noticed public hearing held on December 2, 2009, confirmed their approval of the project and conditions of approval (Exhibit B). The City Council, after a duly noticed public hearings held on December 7, 2009, and after due consideration of the proposed project, the Mitigated Negative Declaration, the analysis of the project by City staff, and the modification of the proposed conditions recommended by the PTC and the ARB, finds that the proposed Ordinance is in the public interest and will promote the public health, safety and welfare, as hereinafter set forth. (I (g) The Council finds that (1) the Subject Property is so situated, and the use or uses proposed for the site are of such characteristics that the application of general districts or combining districts will not provide sufficient flexibility to allow for the Project; and (2) development of the Subject Property under the provisions of the PC Planned Community District will result in public benefits not otherwise attainable by application of the regulations of general districts or combining districts, as set forth in Section (4)(c) hereof; and (3) the use or uses permitted, and the site development regulations applicable within the proposed district are consistent with the Comprehensive Plan (Goals, Policies and proposed designation of Mixed Use for the Subject Property) and are compatible with existing and potential uses on adjoining sites or within the general vicinity. SECTION 2. Section 18.08.040 of the Palo Alto Municipal Code, the "Zoning Map," is hereby amended by changing the zoning of Subject Property from "CN Neighborhood Commercial" to "PC Planned Community 5069." SECTION 3. The City Council hereby finds with respect to the Subject Property that the project (the "Project") as depicted on Development Plans. dated October 22, 2009, incorporated by reference, comprises a mixed -use development that includes the following components: (a) The replacement of 18,028 square feet of existing commercial space with 57,900 square feet of new commercial and residential space. The commercial space would include 8,000 square feet for a grocery store, 5,580 square feet of other ground floor retail space, and 38,980 square feet of office space; (b) Eight (8) residential below -market -rate (BMR) units, comprising 5,340 square feet; (c) Underground parking garage containing 216 parking spaces on two levels; (d) Surface parking lot accommodating 11 parking spaces; 2 100114 sytt 8261209 (e) 24 on -street parking spaces around the site's perimeter; (f) A landscaped plaza at the corner of Staunton Court and Oxford Avenue; (g) Removal of street trees along Staunton Court, and Oxford and College Avenues and planting of new street trees within the sidewalk area; (h) Removal and replacement of some or all street trees along El Camino Real in tree wells; (i) Automobile driveways on El Camino Real, Oxford Avenue and Staunton Court providing access to parking lots and an area for loading and deliveries. Access to the below grade parking would be provided from the El Camino Real driveway. SECTION 4. The Development Plan dated October 22, 2009, and any approved supplemental materials, for the Subject Property, as submitted by the applicant pursuant to Palo Alto Municipal Code Section (PAMC) 18.38.090, shall be subject to the following permitted and conditional land uses and special limitations on land uses, development standards, parking and loading requirements, modifications to the development plans and provisions of public benefits outlined below, and conditions of project approval, attached and incorporated as "Exhibit B". (a) Permitted and Conditionally Permitted land uses shall be allowed and limited as follows: Permitted Uses (subject to the limitations below under Section 4(bl: Multifamily Residential Professional and General Business Offices (excluding medical offices) Retail Services (excluding liquor stores) Eating and Drinking Services (excluding drive-in and Take-out services) Personal Services Conditionally Permitted Uses: (1) Farmers Markets (2) Businesses that operate or have associated activities at any time between the hours of 10:00 p.m. and 6:00 a.m. (such businesses shall be operated in a mariner to protect residential properties from excessive noise, odors, lighting, or other nuisances from any source during those hours) The following conditionally permitted uses are only permitted within the areas designated as office space on the development plan: (1) Banks and Financial Services (2) Commercial recreation (3) Private clubs, Lodges, and Fraternal Organizations 3 100114syn 8261209 (b) Special limitations on land uses include the following: (1) A grocery store, with an area of at least 8,000 square feet, shall exist within the development for the useful life of the improvements; (2) The grocery store shall be a neighborhood serving grocery store that provides all the typical grocery store products and services of a neighborhood serving store such that it shall not become a convenience mart facility; (3) A signed lease for the grocery store, enforceable against the tenant and approved by the City Attorney, shall be submitted prior to issuance of any building permits on the site. (4) The grocery tenant shall occupy and begin operations prior to any office tenant occupancy. (5) The below -market rate housing shall be occupied not later than 120 days after the first occupancy of the office building. No more than 50% of the office space shall be occupied prior to occupancy of the housing. (6) The grocery tenant, if it is a party other than John Garcia (DBA JJ&F), shall be subject to the prior approval of the City of Palo Alto and shall not be withheld unless the City reasonably finds that such proposed grocery tenant is not likely to be comparable in quality of products and service as JJ&F as it existed and operated on December 7, 2009. (7) The grocery store space shall remain in continuous operation as a grocery store. "Continuous shall be defined to include brief closure for ordinary business purposes." (8) No medical office shall be permitted within the development; (9) The office uses within the project shall not exceed 38,980 square feet; (10) The 5,580 square feet of area designated as "Other Retail" on the development plan shall not be converted to ground floor office space; and (11) The "Other Retail" space may be occupied by retail uses, personal service use, or eating and drinking services only. (12) Use of the outdoor market area as shown on the project plans as being 2,447 square feet shall be limited to an open air market for grocery related uses only. (c) Development Standards: Development Standards for the site shall comply with the standards prescribed for the Planned Community (PC) zone district (Chapter 18.38), and as modified in Section 4(a) and (b) above. (d) Parkins and Loading Requirements: In addition to the parking and loading requirements specified in PAMC 18.52 and 18.54, a Transportation Demand Management (TDM) Program has been incorporated in the Development Plan to allow reductions in parking requirements. The TDM is shown in `Exhibit C' and is attached to this document 4 100114 syn 8261209 The design is compatible with the immediate environment of the site in that the proposed buildings are designed to meet the El Camino Real Design Guidelines and be sensitive to the lower scale residential neighborhood beyond; The design is appropriate to the function of the project in that the project has been designed to be pedestrian friendly, provide additional bike and vehicular parking, attract people to the project and provides unique amenity spaces; In areas considered by the board as having a unified design character or historical character, the design is compatible with such character. In this case, the building is not within an area of unified design character or historical character; The design promotes harmonious transitions in scale and character in areas between different designated land uses in that the project includes the proposal to locate the two story residential component across from the existing residential uses on Staunton Court to create a transitional buffer between the existing residential uses and the proposed commercial buildings; (f) The design is compatible with approved improvements both on and off the site in that the proposed buildings and other project improvements would blend well with the existing off site improvements by proposing to break up the proposal in to multiple buildings with varying heights to control the mass and scale; (g) (h) The planning and siting of the various functions and buildings on the site create an internal sense of order and provide a desirable environment for occupants, visitors and the general community in that the proposed design reduces neighborhood traffic by placing the garage entry on El Camino, improves the economic viability of the grocery market by placing it at the visible corner of El Camino, brings light into the below grade parking structure with a large open bamboo garden, locates the commercial buildings away from existing residential uses, and provides landscaped open spaces; The amount and arrangement of open space are appropriate to the design and the function of the structures in that several open spaces are provided to accommodate the various uses that may occur at the site. These spaces include the garden square at the corner of Staunton Court and Oxford Avenue, the roof top gazebo at the vegetated green roof and the arcade and open area at the corner of Staunton Court and College Avenue; Sufficient ancillary functions are provided to support the main functions of the project in that the proposal includes a large trash storage area, ample areas for bike parking, and an underground vehicle parking area; Access to the property and circulation thereon are safe and convenient for pedestrians, cyclists and vehicles in that the driveway to the underground garage 100114syn 8261209 6 (e) and incorporated by reference. The final TDM plan shall provide for implementation and monitoring as provided in the conditions of approval. Modifications to the Development Plan and Site Development Regulations: Once the project has been constructed consistent with the approved Development Plan, any modifications to the exterior design of the Development Plan or any new construction not specifically permitted by the Development Plan or the site development regulations contained in Section 4 (a) (c) above shall require an amendment to this Planned Community zone, unless the modification is a minor change as described in PAMC 18.76.050 (b) (3) (e), in which case the modification may be approved through the Minor Architectural Review process. Any use not specifically permitted by this ordinance shall require an amendment to the PC ordinance, except that conversion of designated office space to retail use shall not require amendment. (f) Public Benefits: (8) Development of the Subject Property under the provisions of the PC Planned Community District will result in public benefits not otherwise attainable by application of the regulations of general districts or combining districts. The Project includes the following public benefits that are inherent to the Project and in excess of those required by City zoning districts: (1) Provision of an 8,000 square foot neighborhood -serving grocery market. (2) 4 Below Market Rate housing units. (3) A contribution of $5,000 dollars for tree planting within the El Camino Real median. Development Schedule: The Project is required to include a Development Schedule pursuant to PAMC 18.38.100. The approved Development Schedule is set forth below: Construction of the Project shall commence on or before December 2012, unless extension(s) are granted. The total time for project construction and occupancy of spaces is three (3) years, or by December 2015. SECTION 5. Council approves the Architectural Review application, finding that: (a) The design is consistent and compatible with applicable elements of the city's Comprehensive Plan as set forth in Resolution No. 9012, Adopting an Amendment to the Comprehensive Plan Land Use Map by Changing the Land Use Designation for 2180 El Camino Real From Neighborhood Commercial to Mixed Use. The proposed mixed use development containing office, residential, retail and commercial uses is consistent with the Mixed Use land use designation; 5 1.00114 syn 8261209 has been designed such that vehicles existing the garage are level with the sidewalk such that the drivers view of pedestrians is not impeded, extra bike and vehicle parking spaces have been provided and there are pedestrian pathways provided to allow access through the project; (k) Natural features are appropriately preserved and integrated with the project. The site is already developed and contains some mature trees that would be removed to accommodate the proposed podium over the below grade parking. The trees to be removed will be replaced with new plantings including approximately 41 new street trees around the perimeter of the project, a bamboo garden that would grow up through the center of the parking structure, various potted plantings throughout the project , and trees and plantings within the proposed garden square. (1) (m) (n) The materials, textures, colors and details of construction and plant material are appropriate expression to the design and function in that the proposal includes many detail elements to ensure the proposed architectural style is appropriately expressed; The landscape design concept for the site, as shown by the relationship of plant masses, open space, scale, plant forms and foliage textures and colors create a desirable and functional environment in that landscape elements have been incorporated wherever they could over the concrete podium. There are planters at entry locations and the fronts of the buildings, there is a large bamboo garden growing up through the center of the project, a vegetated green roof over the grocery store, and a garden square; Plant material is suitable and adaptable to the site, capable of being properly maintained on the site, and is of a variety which would tend to be drought - resistant and to reduce consumption of water in its installation and maintenance in that the proposal includes many plant species that perform well within this environment; (o) The project exhibits green building and sustainable design that is energy efficient, water conserving, durable and nontoxic, with high -quality spaces and high recycled content materials. The following considerations should be utilized in determining sustainable site and building design: (1) Optimize building orientation for heat gain, shading, daylighting, and natural ventilation; ' (2) Design of landscaping to create comfortable micro -climates and reduce heat island effects; (3) Design for easy pedestrian, bicycle and transit access; (4) Maximize on site stormwater management through landscaping and permeable paving; (5) Use sustainable building materials; 7 100114syn 8261209 (6) Design lighting, plumbing and equipment for efficient energy and water use; (7) Create healthy indoor environments; and (8) Use creativity and innovation to build more sustainable environments. (p) The design incorporates many of the above mentioned green building measures including photovoltaic panels on the roof and a green roof. (see LEED and Build It Green checklists, Attachment G) The design is consistent and compatible with the purpose of architectural review, to: (1) Promote orderly and harmonious development in the city; (2) Enhance the desirability of residence or investment in the city; (3) Encourage the attainment of the most desirable use of land improvements; (4) Enhance the desirability of living conditions upon the immediate site or in adjacent areas; and Promote visual environments which are of high aesthetic quality and variety and which, at the same time, are considerate of each other. (5) and SECTION 6. Design Enhancement Exceptions (DEEs) are approved as follows: (a) Height Exceptions for the proposed roof top gazebo and the architectural signage spire above the grocery store, which would exceed the 35 foot limit by five feet and ten feet, respectively, with an additional seven feet of height for the metal pole atop the spire, rising to 52 feet. (b) Setback Exception to allow portions of the building along Oxford Avenue to encroach into a ten foot setback; specifically, to allow a 7'9" encroachment for the second floor of the grocery store building and parts of the first floor" and 3'6" encroachment for the recessed first floor areas as set forth in the project plans. (c) DEE Findings: (1) There are exceptional or extraordinary circumstances or conditions applicable to the property or site improvements involved that do not apply generally to property in the same zone district, in that, although the adjacent parcel on Oxford Avenue is not occupied by a residential use, its zoning is residential and forces the imposition of a more restrictive setback requirement upon a portion of the site. The intent of the more restrictive height and setback regulations is to ensure that the new commercial development is sensitive to the nearby residential uses. Being that the adjacent use is not residential the need for the sensitivity is diminished. 8 100114 syn 8261209 (2) The granting of these Exceptions will enhance the appearance of the site or structure, or improve the neighborhood character of the project and preserve an existing or proposed architectural style in a manner which would not otherwise be accomplished through strict application of the minimum requirements of Title 18 and the standards for review set forth in this Chapter, in that (a) the height exception for the gazebo would allow the construction of a shade structure that would provide an amenity space on the roof top and this space would provide views over the vegetated roof and would serve to help increase awareness of green roofs; (b) the height exception for the signage spire allows for the provision of a stronger element for the grocery store building to give the building more dominance at the comer, improving the significance of the building in this location; and (c) the setback encroachment improves the design of the streetscape in this location since the project faces the El Camino Real commercial strip and employing a similar urban setback and sidewalk along Oxford Avenue preserves the continuity of the design, such that implementation of a ten foot setback and landscaped yard at this corner would appear odd in relationship to the use of a hotel across the street, (3) The Exception is related to a site improvement that will not be detrimental or injurious to property or improvement in the site vicinity, and will not be detrimental to the public health, safety, general welfare or convenience, in that (a) the height exceptions are for minor architectural elements that improve the architecture, do not contribute to the bulk and mass of the structure, and are not in close proximity to residential uses such that they would have a negative impact upon them; and (b) the setback encroachment occurs opposite a residential zone but no residences would be impacted by encroachment since a hotel is located opposite the grocery store building and the encroaching wall of the grocery store building would be across the street from the back side of the hotel and even with the encroachment, a generous 14'-5" wide sidewalk would be provided. SECTION 7. Indemnification. To the extent permitted by law, the Applicant shall indemnify and hold harmless the City, its City Council, its officers, employees and agents (the "indemnified parties") from and against any claim, action, or proceeding brought by a third party against the indemnified parties and the applicant to attack, set aside, or void this ordinance or any permit or approval authorized hereby for the project, including (without limitation) reimbursing the City its actual attorneys fees and costs incurred in defense of the litigation. The City may, in its sole discretion, elect to defend any such action with attorneys of its choice. SECTION 8. Acceptance by the applicant. If the Applicant does not accept the Proposed ordinance in writing prior to second reading of the ordinance and within 30 days of the Council's adoption, the question of the appropriate zoning of the Subject Property shall be referred to the Nanning and Transportation Commission for their consideration and recommendation, which may include the CN zone, the CN zone plus various overlays, a newly 10 100114 syn 8261209 crafted zone applicable to Neighborhood Centers or such other zone as the Commission deems appropriate. SECTION 9. A mitigated negative declaration (MND) for this project was prepared in accordance with the California Environmental Quality Act and circulated for public review for a 30 -day period beginning on October 9, 2009. The City Council approved the MND at its meeting of on December 7, 2009. SECTION 10. This ordinance shall be effective on the thirty-first day after the date of its adoption. INTRODUCED: December 07, 2009 PASSED: January 11, 2010 AYES: BURT, ESPINOSA, HOLMAN, KLEIN, PRICE, SCHARFF, SCHMID, SHEPHERD, YEH NOES: ABSTENTIONS: ABSENT: APPROVED AS TO FORM: APPROVED: Assistant City A -41 Director of Planning and Community Environment 11 100114 syn 8261209 Exhibit A J,pO •• Q. ; JJ Jy� Legend y:rn aunt 1,„„..e 2180 El Camino Real (Project Site) Stanford Lands Zone Districts abc Zone District Labels 2180 El Camino Real Zoning Districts Area Map This map la a product of the City of Palo Alto GIS Thy aooumant4 • pophienpraaanaUon arlyat Wal acre JUi towns. The Chyot Pik Ma auwNirorMporafdlyfor any errors OMB to 7W(1CMya1 Pik, AN* 11411,2006411-3014!•14 Pteempadah+lideali 'vaan rrMnmdb) Exhibit B 2180 El Camino Real Conditions of Project Approval Planninz and Transportation Division Conditions 1. The project shall be constructed as depicted on plans dated October 22, 2009 and labeled as `Approved Plans' and the project, including uses, shall be implemented in accordance with Section 4 of the PC Ordinance (PC5 0 6 9), except as modified by these conditions of approval. 2. The applicant shall return to the Architectural Review on consent calendar to address the following: a) Provide clarified floor plans for the BMR units (with room names) b) Clarify the site circulation, making it more clear; c) Consider redesign of the exterior stair to the roof top garden, this shall include the elimination of the diagonal banding; d) Consider simplifying the pathway from the exterior stairs to the gazebo area on the roof; e) Review the banding of the grocery store building, consider one color with the two different finishes; f) Provide details of the transformer fencing; g) Reconsider the tile roofs at the office towers; h) Consider some modification to the grocery walls facing Oxford Avenue such as a mural, display windows etc.; i) Provide additional information about the private open spaces and the materiality of it; j) Provide additional information about the bridge, materials, underside, etc.; k) Consider redesign of the striped tower; 1) Reconsider the selection of the Ash tree species; m) Provide additional information about the proposed bamboo (species and height) related to the canted wall;, n) Provide detail to show how the headlights going into the below grade parking will or will not impact the BMR units; o) Consider redesign of the BMR units such that they are equally as striking as the other buildings in the project; p) Provide more information regarding the plant pallet and conceptual plan for the green roof; (1) Provide more information about all screening elements and locations; and r) Provide additional information about potted plata' and the planting at the open area at the center of the project as well as the planting for the trellises located at the at -grade parking area. 3. The ARB shall address making the vegetated roof maximally observable to owners, occupants, tenants and visitors during normal business hours of the office Exhibit B to PC Ordinance for 2180 El Camino Real 1 building, provided, however, that enjoyment of the vegetative roof shall not interfere with or derogate from the health of the growth thereon. 4. The owners/occupants of the BMR units shall have access to view and enjoy the vegetated roof from the gazebo during normal business hours of the office building. 5. The PC shall be inspected at least once every three years for compliance with the PC district regulations and the conditions of the ordinance under which the district was created. 6. The applicant shall comply with applicable provisions of Palo Alto's noise ordinance, both during construction and following construction, for the life of the project as per Chapter 9.10 of the Palo Alto Municipal Code and pursuant to PAMC Section 18.23.060, requiring an acoustical analysis at the time of building permit issuance, and demonstration and certification that it complies with the Noise Ordinance prior to final inspection. Any new noise producing equipment shall be placed as far away as is feasible from any existing residential sites and as close to El Camino Real as is possible. 7. The building permit for the building in which the grocery store is to be located shall be pulled concurrently with the building permit for the other non-residential building in the development. 8. The lease for the grocery store shall have, at minimum, a 20 year initial term. 9. Development Impact fees, totaling approximately $393,684.70, shall be paid prior to issuance of building permits. 10. The applicant shall file and receive approval of a Preliminary Parcel Map/Parcel Map to combine the four parcels into one. The Parcel Map shall be recorded with the County of Santa Clara prior to issuance of a demolition permit or building permit. 11. The commercial portions of the project shall be required to attain LEED Silver level of certification through the USGBC. The residential portion of the project shall be required to meet the Build It Green multifamily green building requirements. 12. The following mitigation measures from the adopted Mitigated Negative Declaration are included below as project conditions: a. Mitigation Measure #1: The project shall include automatic night shades or other system such as motion sensors and timers for the office windows at the rear of the building. b. Mitigation Measure #2: Prior to any excavation the applicant shall prepare a site specific Health and Safety Plan that conforms to the requirements of Title 29 of the Code of Federal Regulations (VFR) Section 1910.120, the California General Exhibit B to PC Ordinance for 2180 El Camino Real 2 Industry Safety Order (GISO) and Title 8, California Code of Regulation (CCR) Section 5192. c. Mitigation Measure #3: All employees and subcontractors involved in excavation of potentially contaminated material shall be 40 hour Hazardous Waste Operations and Emergency Response (HAZWOPER) trained and certified. d. Mitigation Measure #4: Soils shall be field screened, tested, and properly profiled during redevelopment to determine appropriate reuse or off site disposal. e. Mitigation Measure #5: The proposed mechanical equipment shall be evaluated to ensure compliance with City of Palo Alto noise limit regulations. Measures such as equipment selection, equipment placement (location), and or the addition of barriers or enclosures shall be employed to ensure that any new noise producing equipment is in compliance with the City's noise ordinance. f. Mitigation Measure # 6: Cal Trans must approve the proposed curb cut on the El Camino Real for the driveway to the underground parking garage. g. Mitigation Measure #7: A Transportation Demand Management (TDM) program must be submitted by the applicant and approved by the Transportation Department prior to submittal of a building permit application. The TDM program shall outline parking and/or traffic demand measures to be implemented to reduce parking need and trip generation. Measures may include, but are not limited to: parking cash -out programs, provision of EcoPass (VTA) or Go Pass (Caltrain) for office tenants, shared parking, enhanced shuttle service, car sharing, providing priority parking spaces for car pools/vanpools or green vehicles, vehicle charging stations, additional bicycle parking facilities, or other measures to encourage transit use or to reduce parking needs. The program shall be proposed to the satisfaction of the Director, shall include proposed performance targets for parking and /or trip reductions, and indicate the basis for such estimates, and shall designate a single entity to implement the proposed measures. State of California Department of Transportation (Cal Trans) Conditions 13. The design standard of the driveway on El Camino Real (SR 82) must comply with the Highway Design Manual. 14. Work that encroaches onto the State right of way (ROW) requires an encroachment permit that is issued by the Cal Trans. To apply, a completed encroachment permit application, environmental documentation, and five (5) sets of plans clearly indicating State ROW must be submitted to the address below. Office of Permits California DOT, District 4 P.O. Box 23660 Oakland, CA 94623-0660 15. Traffic -related mitigation measures shall be incorporated into the construction plans during the encroachment permit process. Transportation Division Conditions Exhibit B to PC Ordinance for 2180 El Camino Real 3 16. Do not include or add any monument signs, furniture, or other sight obstructions (except trees) in the sight triangle on the northern frontage on El Camino Real. This condition does not prevent the use of produce or flower stalls, or tables and chairs for grocery store patrons in the space designated as grocery store outdoor space, so long as the location of same is approved by the City's Transportation Department. 17. The TDM shall include at least two car share vehicles. The Final TDM plan monitoring and implementation shall be carried out in accordance with Palo Alto Municipal Code Section 18.52.050 (d) TDM requirements, items (3) and (4) with respect to monitoring, and item (2) with respect to implementation related to performance targets for parking and trip reduction, and single entity to implement the TDM measures. Vehicle Parking 18. Spaces adjacent to walls required to be 9' wide (spaces adjacent to mechanical and utility rooms). Spaces adjacent to poles/columns would be required to be 9.0' wide based on the location of the columns right at the entry to the parlcing spaces. 19. Northern most HC spaces can also be labeled as "van accessible" if the combined opening is 26.0' (9'-8'-9'). 20. Include wheel stops where appropriate (all spaces that are at grade with pedestrian paths, lobbies, or bike locker areas) Bicycle Parking 21. Illustrate on plans the location of Long Term (lockers) and Short Term bike racks, including total count similar to vehicular parking. Adequate aisles between lockers and racks must be shown. 22. Include details of types of racks to be used (must be approved by City Staff). Plan appears to include inverted -U racks (approved type). 23. All short term bicycle parking (racks) need to be located on the street level and be located within 50 feet and distributed near each of the main entrances to the various buildings. (Office racks not in appropriate location) 24. Long term bike lockers are allowed in the garage, but need to be located near employee elevators/stairs (locations appears to be okay, but all lockers should be on the first level of garage). Building Division Conditions 25. The plans submitted for the building permit shall include the full scope of the construction of the entire building, including all site development, utility installations, Exhibit B to PC Ordinance for 2180 El Camino Real 4 architectural, structural, electrical, plumbing and mechanical work associated with the proposed project. 26. The applicant shall be required to schedule and attend a pre -application meeting with Building Division staff to review the permit application process and to verify that the permit application will include all items required by these conditions. 27. Due to the scale of the overall project, the applicant shall be required to utilize a 3rd party plan check agency to conduct the building code plan review. A list of the agencies approved by the City of Palo Alto is available at the Development Center. The City Building plan check fees are reduced by 75% when a 3rd party plan check agency is utilized. 28. The plans submitted for the building permit shall include an allowable floor area calculation that relates the mixed occupancies and type of construction. 29. The plans submitted with the permit application shall include the complete design for disabled access and exiting for the entire site. Disable access features and exiting within the unimproved offices spaces may be deferred to future tenant improvement permits. 30. The design of building components that are not included in the plans submitted for building permit and are to be deferred shall be limited to as few items as possible. The list of deferred items shall be reviewed and approved prior to permit application. 31. The plans submitted with the building permit application for the shell building shall include the construction of stairs, exit enclosures and exit passageways extending to the exterior of the building. 32. All entrances and vertical clearances within the parking structures shall have a minimum vertical of 8 feet 2 inches where required for access to the accessible parking spaces per CBC Section 1130B. 33. The location of the building electrical service shall require prior approval by the Inspection Services Division and shall be located at an exterior location or in a room or enclosure accessible directly from the exterior. 34. A separate building permit shall be required for the construction of each building. 35. Plans submitted for plan review shall clearly indicate the proposed occupancy group(s) and type of construction of the building. 36. Plans for the residential units submitted for plan review shall comply with the latest requirements from the State of California [HCD 1/AC] Chapter 11B of the 2007 Edition of the CBC. Exhibit B to PC Ordinance for 2180 El Camino Real 5 37. Plans for the residential units shall include an acoustical analysis and the plans shall incorporate the report's recommendations needed to show the common walls and floor ceiling assemblies in compliance with the sound transmission control requirements in CBC Section 1207. 38. Normal and accessible parking stalls for the residential rental units must be separated from the stalls of the commercial building and their location must be identified on plans submitted for plan review. 39. Plans submitted for plan review shall indicate the required number of parking stalls for the residential units and commercial building. Plans shall also indicate number of accessible stalls is in compliance with HCD 1/AC Chapter 11A for residential units and with DSA/AC Chapter 11B for the commercial facilities. Parking stalls for each use shall be separated in accordance with recommendations of the Planning Division. Fire Department Conditions 40. The Fire Department requires that the developer have a contingency plan in place to handle any contamination or abandoned underground tanks discovered during excavation. 41. Emergency Contractor must have State HAZ license. 42. Fire Department shall be notified during normal business hours at the earliest opportunity in the event of such a discovery. 43. A permit from the Santa Clara County Department of Environmental Health is required for any underground tank removal. 44. 3 nearest Street Hydrants shall be upgraded to Clow Rich Model 76. 45. Aerial Fire Apparatus access shall be provided for the entire El Camino building Frontage. No overhead cable will be allowed on this side of the building. 46. Site address to be prominently posted on the building. (200ICFC901) Maximum vehicle weight bearing capacity for the podium deck shall be posted. 47. Please contact the Palo Alto Fire Department Training Office at 650-321-5617 if it is at all feasible to allow the Fire Department to use the structures to be demolished for training purposes. 48. A fire sprinkler system shall be provided which meets the requirements of NFPA Standard No. 13, 2002 Edition. (PAMC 15.04.160) Fire Sprinkler system installations or modifications require separate submittal to the Fire Prevention Bureau. (PAMC15.04.083) Exhibit B to PC Ordinance for 2180 El Camino Real 6 11 49. An exterior bell shall be provided, and an approved audible sprinkler flow alarm to alert the occupant shall be provided in the interior of the building in an approved location. (2001 CBC904.3.2) Fire Alarm system installations or modifications require separate submittal to the Fire Prevention Bureau. (PAMC15.04.083) 50. Underground fire supply system installations or modifications require separate submittal to the Fire Prevention Bureau as well as the Public Works Department and the Water/Gas/Wastewater Section of the Utilities Department. (PAMC15.04.083) 51. All sprinkler drains, including those for floor control valves and inspectoro test valves, as well as the main drain, shall not discharge within the building. Water discharged from these points shall be directed to an approved landscape location or to the sanitary sewer system. (99NFPA13, Sec. 5-14.2.4.3) NOTE: Please check with Roland Ekstrand in Utilities for maximum flow capacity of sanitary sewer in the area. Main Drain test discharge flow rate shall be impounded and attenuated to below sanitary sewer capacity before discharge. 52. Elevator car shall be sized for Fire Department gurney access requirements based on gurney dimensions of 24 in. x 84 in. plus a minimum of two emergency response personnel. (2007 Cal. Bldg. Code Sec. 3002.4a) 53. The maximum weight bearing capacity for the podium deck shall be posted. 54. A fire hydrant is required at the intersections of Oxford Ave./Staunton Ct. and College Ave./Staunton Ct. 55. Fire Department ground ladder access to the dwelling units bedroom egress windows shall be provided. 56. When the Main Electrical Shutoff is located in the interior of the building, an exterior shunt trip or other approved means of emergency shutoff shall be provided. Please contact the Building Div. for details. 57. An approved access walkway shall be provided to each bedroom egress/rescue window. 58. Provide Fire Department access across the roof of the 3 story building. 11. If the residential units have a different address than El Camino Real, provide a separate fire department connection at the housing building. Public Works Engineering 59. This project must meet the State Regional Water Quality Control Board's (SRWQCB) revised provision C.3. The applicant is required to satisfy all current storm water discharge regulations and shall provide calculations and documents to verify compliance. The project must also enter into a maintenance agreement with the City to Exhibit B to PC Ordinance for 2180 El Camino Real 7 guarantee the ongoing maintenance of the permanent C.3 storm water discharge compliance measures. The maintenance agreement shall be executed prior to the first building occupancy sign -off. Offsite property or ROW cannot be used to satisfy the C.3 requirements. Every effort should be made to use natural (non -mechanical) methods of stormwater treatment. The applicant is required to meet with Public Works Engineering (PWE) prior to final ARB to discuss and review the C.3 stormwater treatment plan. 60. The applicant shall meet with PWE prior to final ARB to discuss the shoring system to be used in the construction of the project. Shoring systems must be on private property, out of the right-of-way (ROW) and the use of tie -back systems has specific requirements which will be discussed at the meeting. 61. The applicant shall, at minimum, submit an application for a minor subdivision with the Planning division prior to issuance of building permits. 62. The street frontages of the development shall be resurfaced (grind and overlay, full width) and the curbs, gutters, and sidewalks shall be removed and replaced. This work shall be detailed in the offsite improvement plans required for the final map process and it is highly encouraged that the work takes place near the end of the construction process. 63. The applicant shall install LED streetlights along the frontages of the development. Type, style and location, etc. shall be determined at the time of offsite improvement construction and in coordination and consultation with Palo Alto Utilities Department. 64. Any special surface (i.e. sidewalk) treatments proposed within the ROW shall be reviewed by PWE. 65. The project must be constructed without the use of perimeter or subgrade drains outside the walls of the subgrade structure. In other words, the project shall be constructed "like a boat". 66. Provisions for a grease trap shall be made onsite. 67. The applicant is required to meet with Public Works Engineering (PWE) to verify the basic design parameters affecting grading, drainage and surface water infiltration. The applicant is required to submit a conceptual site grading and drainage plan that conveys site runoff to the nearest adequate municipal storm drainage system. In order to address potential storm water quality impacts, the plan shall identify the Best Management Practices (BMP's) to be incorporated into the Storm Water Pollution Prevention Plan (SWPPP) that will be required for the project. The SWPPP shall include permanent BMP's to be incorporated into the project to protect storm water quality. (Resources and handouts are available from Public Works — Engineering. Specific reference is made to Palo Alto's companion document to "Start at the Source", entitled Exhibit B to PC Ordinance for 2180 El Camino Real 8 "Planning Your Land Development Project"). The elements of the PWE-approved conceptual grading and drainage plan shall be incorporated into the building permit plans. PRIOR TO SUBMITTAL FOR BUILDING PERMIT 68. The applicant shall submit a final grading and drainage plan to Public Works Engineering. This plan shall show spot elevations or contours of the site and demonstrate the proper conveyance of storm water to the nearest adequate municipal storm drainage system. Existing drainage patterns, including accommodation of runoff from adjacent properties, shall be maintained. 69. The proposed development will result in a change in the impervious area of the property. The applicant shall provide calculations showing the adjusted impervious area with the building permit application. A Storm Drainage Fee adjustment on the applicant's monthly City utility bill will take place in the month following the final approval of the construction by the Building Inspection Division. The impervious area calculation sheets and instructions are available from Public Works Engineering. 70. A construction logistics plan shall be provided, addressing at minimum parking, truck routes and staging, materials storage, and the provision of pedestrian and vehicular traffic adjacent to the construction site. All truck routes shall conform with the City of Palo Alto's Trucks and Truck Route Ordinance, Chapter 10.48, and the route map which outlines truck routes available throughout the City of Palo Alto. A handout describing these and other requirements for a construction logistics plan is available from Public Works Engineering. PRIOR TO ISSUANCE OF BUILDING PERMIT 71. Prior to building permit issuance, a digital copy of the parcel map or final map, in AutoCAD format, shall be submitted to Public Works Engineering and shall conform to North American Datum 1983 State Plane Zone 3 for horizontal survey controls and NGVD 1929 for vertical survey controls. 72. A detailed site -specific soil report prepared by a licensed soils or geo-technical engineer must be submitted which includes information on water table and basement construction issues. Measures must be undertaken to render the basement waterproof and able to withstand all projected hydrostatic and soil pressures. No pumping of ground water is allowed. In general, Public Works Engineering recommends that structures be constructed in such a way that they do not penetrate existing or projected ground water levels. 73. The applicant is required to paint the "No Dumping/Flows to Matadero Creek" logo in blue color on a white background, adjacent to all storm drain inlets. Stencils of the logo are available from the Public Works Environmental Compliance Division, which may be contacted at (650) 329-2598. A deposit may be required to secure the return of the stencil. Include the instruction to paint the logos on the construction grading and Exhibit B to PC Ordinance for 2180 El Camino Real 9 drainage plan. Include maintenance of these logos' in the Hazardous Materials Management Plan, if such a plan is part of this project. 74, The project includes the construction of dumpster and recycling areas as part of a food service facility. Regulations require that the dumpster/recycling area be adequately roofed or covered. 75. The project includes the construction of dumpster and recycling areas. City guidelines require that this area be covered. 76. The project includes a loading dock. Design of the loading area shall comply with the Palo Alto Municipal Code (PAMC) Sec. 16.09.032(2). DURING CONSTRUCTION 77. The contractor must contact the CPA Public Works Inspector at (650) 496-6929 prior to any work performed in the public right-of-way. 78. No storage of construction materials is permitted in the street or on the sidewalk without prior approval of Public Works Engineering. 79. The developer shall require its contractor to incorporate best management practices (BMP's) for stormwater pollution prevention in all construction operations, in conformance with the Storm Water Pollution Prevention Plan prepared for ,the project. It is unlawful to discharge any construction debris (soil, asphalt, sawcut slurry, paint, chemicals, etc.) or other waste materials into gutters or storm drains. (PAMC Chapter 16.09). 80. All construction within the City right-of-way, easements or other property under City jurisdiction shall conform to Standard Specifications of the Public Works and Utility Departments. PRIOR TO FINALIZATION 81. All sidewalks and curb and gutters bordering the project shall be removed and replaced in compliance with Public Works approved standards. Sec. 12.08.010. 82. All unused driveways shall be removed and replaced with curb and gutter. Sec, 12.08.090. 83. All street surfaces along the frontages of the development shall be removed and replaced (grind and overlay, full -width). 84. The Public Works Inspector shall sign off the building permit prior to the finalization of this permit. All off -site improvements shall be finished prior to this sign - Exhibit B to PC Ordinance for 2180 El Camino Real 10 off. Similarly, all as-builts, on -site grading, drainage and post -developments BMP's shall be completed prior to sign -off. 85. A curb ramp for the disabled will be required at corners of the development. PRIOR TO SUBMITTAL OF PARCEL OR FINAL MAP 86. Subdivision Agreement is required to secure compliance with condition of approval and security of improvements onsite and offsite. No grading or building permits will be issued until Final or Parcel Map is recorded with County Recorder. 87. The applicant shall arrange a meeting with Public Works Engineering, Utilities Engineering, Planning, Fire, and Transportation Departments after approval of this map and prior to submitting the improvement plans. These improvement plans must be completed and approved by the City prior to submittal of a parcel or final map. 88. The project subdivision includes significant complexity involving, final map and coordination of infrastructure design and construction. Developer shall appoint a Project Manager to coordinate with City, Public Works and Utility, engineering staff. Public Works will conduct daily and longer term communication with appointed project manager in order to facilitate timely review and approval of design and construction matters. 89. All construction within the City right-of-way, easements or other property under City's jurisdiction shall conform to standard specifications of the Public Works and Utility Department. Sec. 12.08.060. PRIOR TO RECORDATION OF PARCEL/FINAL MAP 90. The subdivider shall post a bond prior to the recording of the final parcel or subdivision map to guarantee the completion of the "on" and "off' site condition(s) of approval. The amount of the bond shall be determined by the Planning, Utilities and Public Works Departments. Public Works Recycling 91. Recommend that enclosure doors open full width of enclosure, service aisle and curbs do not restrict access to enclosure. 92. Enclosure access must not conflict with loading dock. 93. PASCO services enclosure from street and distance from street to enclosures is beyond standard service. Additional charges apply for service beyond 25 feet from street. 94. PASCO will not drive into loading dock to provide service. 95. Tallow bins must be segregated from refuse/recycling area of enclosure to eliminate slip hazardous due to spills. Exhibit B to PC Ordinance for 2180 El Camino Real 11 Electric Utility Engineering Department Conditions 96. The applicant shall comply with all the Electric Utility Engineering Department service requirements noted during plan review. PRIOR TO ISSUANCE OF DEMOLITION PERMIT 97. The Permittee shall be responsible for identification and location of all utilities, both public and private, within the work area. Prior to any excavation work at the site, the Permittee shall contact Underground Service Alert (USA) at 1-800-227-2600, at least 48 hours prior to beginning work. 98. The Applicant shall submit a request to disconnect all existing utility services and/or meters including a signed affidavit of vacancy, on the form provided by the Building Inspection Division. Utilities will be disconnected or removed within 10 working days after receipt of request. The demolition permit will be issued after all utility services and/or meters have been disconnected and removed. THE FOLLOWING SHALL BE INCORPORATED IN SUBMITTALS FOR BUILDING PERMIT 99. A completed Electric Load Sheet and a full set of plans must be included with all building permit applications involving electrical work. The load sheet must be included with the preliminary submittal. 100. Industrial and large commercial customers must allow sufficient lead-time for Electric Utility Engineering and Operations (typically 8-12 weeks after advance engineering fees have been paid) to design and construct the electric service requested. 101. Only one electric service lateral is permitted per parcel. Utilities Rule & Regulation #18. 102. This project requires a padmount transformer. The location of the transformer shall be shown on the site plan and approved by the Utilities Department and the Architectural Review Board. Utilities Rule & Regulations #3 & #16. 103. The developer/owner shall provide space for installing padmount equipment (i.e. transformers, switches, and interrupters) and associated substructure as required by the City. In addition, the owner shall grant a Public Utilities Easement for facilities installed on private property as required by the City. Exhibit B to PC Ordinance for 2180 El Camino Real 12 104. The customer shall install all electrical substructures (conduits, boxes and pads) required from the service point to the customer's switchgear. The design and installation shall be according to the City standards and shown on plans. Utilities Rule & Regulations #16 & #18. 105. The customer shall maintain a minimum of six feet horizontal clearance between the nearest conductor at rest and any part of the new development. The customer shall meet all California General Order No. 95 clearance requirements. 106. Location of the electric panel/switchboard shall be shown on the site plan and approved by the Architectural Review Board and Utilities Department. 107. All utility meters, lines, transformers, backflow preventers, and any other required equipment shall be shown on the landscape and irrigation plans and shall show that no conflict will occur between the utilities and landscape materials. In addition, all aboveground equipment shall be screened in a manner that is consistent with the building design and setback requirements. 108. For services larger than 1600 amps, the customer will be required to provide a transition cabinet as the interconnection point between the utility's padmount transformer and the customer's main switchgear. The cabinet design drawings must be submitted to the Electric Utility Engineering Department for review and approval. 109. The customer is responsible for sizing the service conductors and other required equipment according to the National Electric Code requirements and the City standards. Utilities Rule & Regulation #18. 110. If the customer's total load exceeds 2500kVA, service shall be provided at the primary voltage of 12,470 volts and the customer shall provide the high voltage switchgear and transformers. Utilities Rule & Regulation #3. 111. Projects that require the extension of high voltage primary distribution lines or reinforcement of offsite electric facilities will be at the customer's expense and must be coordinated with the Electric Utility. . 112. Any additional facilities and services requested by the Applicant that are beyond what the utility deems standard facilities will be subject to Special Facilities charges. The Special Facilities charges include the cost of installing the additional facilities as well as the cost of ownership. Utilities Rule & Regulation #20. COMMENTS ON SUBMITTALS 113. Drawing A1.1 — First Floor & Site Plan Exhibit B to PC Ordinance for 2180 El Camino Real 13 • Transformer Pad size (and working spaces), boxes, conduit size and quantity will be determined after Electric Load Sheets are submitted. A 3'x5' primary box is required in front of each transformer pad. • Three feet clearance is required on each side of the transformer pad. There shall be eight feet of clearance in the front of the transformer. Transformer shall not be in an enclosed environment. 114. Drawing A2.2 — Elevations • Elevation drawings shall show that the project meets California General Order No. 95 clearance requirements. Regional Water Quality Control Plant Conditions 115. Drain plumbing for parking garage floor drains must be connected to an oil/water separator with a minimum capacity of 100 gallons, and to the sanitary sewer system (PAMC 16.09.032(B)(17). 116. Substances containing copper in excess of 2.0 mg/L, tributyl tin in excess of 0.1 mg/L, or chromium in excess of 2.0 mg/L may not be added to cooling systems in Palo Alto. These concentrations apply to the substances prior to dilution with cooling system water. (Note: The City of Palo Alto Municipal Code has proposed additions to this requirement which include substances that may not be added to cooling towers containing Zinc in excess of 2.0 mg/liter and Molybdenum in excess of 2.0 mg/liter.) (PAMC 16.09.115) 117. A flow meter shall be installed to measure the volume of blowdown water from the new cooling tower. Cooling systems discharging greater than 2,000 gallons per day are required to meet a copper discharge limit of 0.25 milligrams per liter. 118. Prior to draining any existing closed loop chilled water, the water in each of the existing loops shall be tested for copper, lead, nickel, and zinc. Test results shall be submitted to the Regional Water Quality Control Plant. Treatment of the chilled loop water prior to draining may be required if the pollutant concentrations exceed discharge limitations contained in the PAMC. 119. If thermometers will be installed on the chilled water supply and return piping. Non -mercury thermometers should be used for this application.(This is a recommendation and not required). 120. If the project is located in an area of known groundwater contamination with Volatile Organic Compounds (VOCs) then the plans must include the following procedure for construction dewatering pursuant to (PAMC 16.09.117, 16.09.110(h): 121. Prior to discharge of any water from construction dewatering, the water shall be tested for volatile organic compounds (VOCs) using EPA Method 601/602. The Exhibit B to PC Ordinance for 2180 El Camino Real 14 analytical results of the VOC testing shall be transmitted to the Regional Water Quality Control Plant (RWQCP). If the concentration of any VOC exceeds 5 ug/L (5 ppb), the water may not be discharged to the storm drain system and an Exceptional Discharge Permit for discharge to the sanitary sewer must be obtained from the RWQCP prior to discharge. If the VOC concentrations exceed the toxic organics discharge limits contained in the Palo Alto Municipal Code, a treatment system for removal of VOCs will also be required prior to discharge to the sanitary sewer. Additionally, any water discharged to the storm drain system must be free of sediment. 122. Connections to the storm drain shall not be permitted for loading docks where chemicals, hazardous materials, grease, oil, or waste products are handled (PAMC 16.09.032). 123. Loading dock drains may be connected to the sewer only if the area in which the drain is located is covered or protected from rainwater run-on by berms and/or grading, and appropriate wastewater treatment approved by the superintendent is provided. Any loading dock area with a sanitary sewer drain shall be equipped with a fail-safe valve, which shall be kept closed during periods of operation. 124. Condensate lines shall not be connected or allowed to drain to the storm drain system (PAMC 16.09.032(b)(8). 125. New dumpster areas shall be covered. The area shall be designed to prevent water run-on to the area and run-off from the area (PAMC 16.09.106(e) Dumpsters for New and Remodeled Facilities). Undesignated Retail Space 126. Newly constructed or improved buildings with all or a portion of the space with undesignated tenants or future use will need to meet all requirements that would have been applicable during design and construction. If such undesignated retail space becomes a food service facility the following requirements must be met pursuant to PAMC Section 16.09.103(a) Grease Control Devices for Food Service Facilities: • A grease control device (GCD) shall be installed with a minimum capacity of 750 gallons. The GCD must be sized in accordance with the 2007 California Plumbing Code. The sizing calculation must be submitted with the plans. All grease generating drainage fixtures shall be connected to the GCD. The connection of any dishwashers or pasta cookers to a GCD is prohibited. All large, in -ground interceptors shall have a minimum of three manholes to allow visibility of each inlet piping, baffle (divider) piping and outlet piping to ensure accessibility for inspection, cleaning and removal of all contents. The plans shall clearly indicate the number of manholes on the GCD and a list of all drainage fixtures connecting to the GCD. Two manholes may be allowed under certain conditions only granted by the Environmental Compliance Division of Public Works Department. Exhibit B to PC Ordinance for 2180 El Camino Real 15 • To ensure all food service establishment drainage fixtures are connected to the correct lines, each drainage fixture shall be clearly labeled on the plans. Also a list of all fixtures and their discharge connection, i.e. sanitary sewer or grease waste line, shall be included on the plans. • New buildings constructed to house food service facilities shall include a covered area for a dumpster. The area shall be designed to prevent water run-on to the area and runoff from the area, Drains that are installed within the enclosure for recycle and waste bins, dumpsters and tallow bins (used oil containers) serving food service facilities are optional. Any such drain installed shall be connected to a GCD and the sanitary sewer. If tallow is to be stored outside then an adequately sized, segregated space for a tallow bin shall be included in the covered area (PAMC 16.09.032b(16) `Covered Dumpsters for Food Service Facilities'). • The installation of a garbage grinder at any food service facility is prohibited after January 1, 2003. The kitchen cannot utilize a garbage grinder for food waste disposal to the sanitary sewer (PAMC 16.09.103(e) Prohibition Against Garbage Disposals). • Food service facilities shall have a sink or other area for cleaning floor mats, containers, and equipment, which is connected to a grease interceptor and the sanitary sewer (PAMC 16.09.032b(16) Large Item Cleaning Sink for Food Service Facilities.) Public Works Operations -Trees 127. Provide optimum public tree replacement for street trees. The plans shall show and provide a streetscape design with materials on the civil, landscape and irrigation drawings with the following information and direction: • El Camino Real and Oxford Avenue Frontage: Utilize city -approved Silva Cell soil planter (approx. 30 -inch depth) beneath the new sidewalk from corner to corner. Utilities shall be allowed to pass thru the planters. Provide automatic irrigation using a solar smart controller with two bubblers per tree. Utilize Public Works Planting Detail #604. Beneath each tree planting site, auger two 4-6" diameter drain holes 3ft deep below the bottom of the planter basin soil and backfill with medium sand (0.25 to 0.5 mm) or fine gravel. For El Camino Real, utilize Platanus a. `Columbia', Columbia Plane, #15 size, spaced 30 -feet on center, a minimum of 15 -feet from street lights and 10 -feet from utilities and driveways. For Oxford Avenue, utilize Fraxinus a. `Autumn Purple', Autumn Purple Ash (or other species as may be agreed upon by the Directors of Planning and Community Environment and Public Works ), #15 (ball and burlap) B&B or 15 gallon minimum size, spaced 25-30 feet on center, a minimum of 15 -feet from street lights and 10 -feet from utilities and driveways. • Staunton Court and College Avenue Frontage: Provide automatic irrigation using a solar smart controller with two bubblers per tree. Utilize Public Works Planting Detail #604. Beneath each tree planting site, auger two 4-6" diameter drain holes 3ft deep below the bottom of the planter basin soil and backfill with medium sand (0.25 Exhibit B to PC Ordinance for 21N El Camino Real 16 to 0.5 mm) or fine gravel. Automatic irrigation shall be provided to all street trees as required in landscape design conditions below. On College Avenue, utilize Fraxinus a. `Autumn Purple', Autumn Purple Ash (or other species as may be approved by the Directors of Planning and Community Environment and Public Works), #15 B&B or 15 gallon minimum size, spaced 25-30 feet on center, a minimum of 15 -feet from street lights and 10 -feet from utilities and driveways. On Staunton Court frontage, utilize Fraxinus pennsylvanica `Cimmzam', Red Ash (or other species as may be approved by the Directors of Planning and Community Environment and Public Works), #15 B&B or 15 gallon minimum size, spaced 25-30 feet on center, a minimum of 15 -feet from street lights and 10 -feet from utilities and driveways. Planning Department Arborist 128. LANDSCAPE PLANS. a. Provide a detailed landscape and irrigation plan encompassing on -and off - site plantable areas out to the curb shall be approved by the Architectural Review Board. A Landscape Water Use statement, water use calculations and a statement of design intent shall be submitted for the project. A licensed landscape architect and qualified irrigation consultant will prepare these plans, to include: i) All existing trees identified both to be retained and removed including street trees. ii) Complete plant list indicating tree and plant species, quantity, size, and locations. iii) Irrigation schedule and plan. iv) Fence locations. v) Lighting plan with photometric data. vi) Trees to be retained shall be irrigated, aerated and maintained as necessary to ensure survival. vii) All new trees planted within the public right-of-way shall be installed per Public Works (PW) Standard Planting Diagram #603 or 604 (include on plans), and shall have a tree pit dug at least twice the diameter of the root ball. viii) Landscape plan shall include planting preparation details for trees specifying digging the soil to at least 30 -inches deep, backfilled with a quality topsoil and dressing with 2 -inches of wood or bark mulch on top of the root ball keeping clear of the trunk by 1 -inch. • ix) Automatic irrigation shall be provided to all trees. For trees, PW Detail #513 shall be included on the irrigation plans and show two bubbler heads mounted on flexible tubing placed at the edge of the root ball. Bubblers shall not be mounted inside an aeration tube. The tree irrigation system shall be connected to a separate valve from other shrubbery and ground cover, pursuant to the City's Landscape Water Efficiency Standards. Irrigation in the right-of-way requires a street work permit per CPA Public Works standards. x) Landscape Plan shall ensure the backflow device is adequately obscured with the appropriate screening to minimize visibility (planted shrubbery is Exhibit B to PC Ordinance for 2180 El Camino Real 17 preferred, painted dark green, decorative boulder covering acceptable; wire cages are discouraged). b) Mandatory Landscape Architect (LA) Inspection Verification to the City. The LA of record shall verify the performance measurements are achieved with a separate letter of verification to City Planning staff, in addition to owner's representative for each of the following: i) Tree and Shrub Planting Specifications, including delivered stock, meets Standards in the CPA Tree Technical Manual, Section 3.30-3.50. Girdling roots and previously topped trees are subject to rejection. DURING CONSTRUCTION 129. TREE DAMAGE. Tree Damage, Injury Mitigation and Inspections apply to Contractor. Reporting, injury mitigation measures and arborist inspection schedule (1-5) apply pursuant to TTM, Section 2.20-2.30. Contractor shall be responsible for the repair or replacement of any publicly owned or protected trees that are damaged during the course of construction, pursuant to Title 8 of the Palo Alto Municipal Code, and city Tree Technical Manual, Section 2.25. 130. GENERAL. The following general tree preservation measures apply to all trees to be retained: No storage of material, topsoil, vehicles or equipment shall be permitted within the tree enclosure area. The ground under and around the tree canopy area shall not be altered. Trees to be retained shall be irrigated, aerated and maintained as necessary to ensure survival. PRIOR TO OCCUPANCY 131. LANDSCAPE INSPECTION. The Planning Department shall be in receipt of written verification that the Landscape Architect has inspected all trees, shrubs, planting and irrigation and that they are installed and functioning as specified in the approved plans. 132. PLANNING INSPECTION. Prior to final sign off, contractor or owner shall contact the city planner (650-329-2441) to inspect and verify Special Conditions relating to the conditions for structures, fixtures, colors and site plan accessories. POST CONSTRUCTION 133. MAINTENANCE. All landscape and trees shall be maintained, watered, fertilized, and pruned according to Best Management Practices -Pruning (ANSI A300- 2001 or current version). Any vegetation that dies shall be replaced or failed automatic irrigation repaired by the current property owner within 30 days of discovery. Exhibit B to PC Ordinance for 2180 El Camino Real 18 :b1 Mr. Brian Spiers President Brian Spiers Development, LLC 388 Market Street Suite 940 San Francisco, CA 94111 December 8, 2014 Mr. James Keene City Manager, City of Palo Alto City Hall 250 Hamilton Avenue Palo Alto, CA 94301 Dear Mr. Keene, Brian Spiers Development Attachment B - I write to you today to ask for City Council approval of the The Grocery Men 1 LLC dba College Terrace Market as owner/operator and lease holder for the grocery space at 2100 El Camino, to satisfy the conditions set forth in PC Ordinance 5069. Last week I had multiple conversations with both the Senior Assistant City Attorney Cara Silver, and the Planning Director Hillary Gitelman with respect to our request for approval of the grocery tenant. As we have not met, I would like to begin by outlining Brian Spiers Development's role in this project. College Terrace Centre LLC is the property owner of 2100 El Camino Real. On or about October 17, 2014, in conjunction with a recapitalization of College Terrace Centre LLC, Brian Spiers Development, LLC became a co-owner and the sole manager of College Terrace Centre LLC. Brian Spiers Development, LLC is solely authorized to act on behalf of and bind College Terrace Centre LLC. Please see Exhibit 1 for the letter from property owner's counsel outlining Brian Spiers Development's role. At the City Council hearing of December 1, 2014, City Council rejected approval of J&A Family Markets, Inc. as the proposed grocery store tenant within PC 5069 (College Terrace Centre). Instead, City Council adopted a resolution giving direction to the applicant with the following: DECEMBER 1, 2014 RE: PC 5069: Approval of the following conditions of approval, which shall be included in a voluntary agreement to be executed by the City Manager and the property owner (College Terrace Centre, LLC) before issuance of any grading, excavation or building permit: 1. The Council finds that the current proposal does not meet the findings required by the PC Ordinance because it does not provide long term grocery business viability; {00095686-11Page1 of 8 Brian Spiers Development 2. The Owner/Applicant shall modify its contractual arrangements so as to lease the grocery tenant space directly with an experienced grocery store owner operator team; 3. The operator shall be subject to approval by the City Council; 4. Daily penalties of $2,000 in the event the approved market goes out of business and is not replaced with another experienced grocery operator within six months; 5. Direct staff to return on December 8, 2014 on the Consent Calendar with notice of an extension to the PC ordinance until March 31, 2015 We believe we have met all requirements set forth by the Council and we will demonstrate the following: 1. The Grocery Men 1, LLC dba College Terrace Market, under the ownership and management of Miki Werness, will be comparable or better in quality of products and service as JJ&F Market as it existed and operated on December 7, 2009. 1 1. The Grocery Men 1, LLC dba College Terrace Market, under the ownership and management of Miki Werness and with multiple capital incentives from the property landlord, will provide long term grocery business viability. 111. The Grocery Men 1, LLC dba College Terrace Market is the sole lease holder and is wholly independent of College Terrace Centre LLC. IV. A Restrictive Covenant made between College Terrace Centre LLC and the City of Palo Alto, which will be recorded against the property, will be entered into to allow the City of Palo Alto to levy a penalty against the property owner in the amount of $2,000 for each day beyond six months that a grocery store is not in operation within College Terrace Centre in accordance with the terms of the PC Ordinance. I. Proposed Operator and Lease Holder Satisfies the Requirement for a Replacement Grocery Store Under PC 5069 A. Introduction Our primary goal is to provide compelling information that College Terrace Market will operate with superior floor planning, site planning, outdoor seating, adequate parking, much stronger capitalization for a grocery operation, superior marketing and operating plans, superior staffing and with fine products and services that will be comparable to and will exceed the grocery operation of JJ& F Market as of 2009. We hope Staff and Council find the material in this presentation compelling by answering questions and solving problems raised about the proposed grocery operator on August 11, 2104 and December 1, 2014, and that Council will withhold its own reasonableness standard for approving College Terrace Market to replace John Garcia and JJ&F Market. B. Historic JJ&F Background {00095686-1}Page 2 of 8 RIO Brian Spiers Development PC Ordinance 5069, in paragraph (b)(1) of Section 4, sets the standard that the grocery tenant at the College Terrace Centre project must be "likely to be comparable in quality of products and services as JJ&F as it existed and operated on December 7, 2009." JJ&F Market was operated by John Garcia and his family. They did not own the grocery store building but instead leased it from the landowners for over 60 years. The JJ&F Market had total retail space of less than 6,000 square feet, contained in a building located at the corner of Oxford Avenue and Staunton Court. This building did not front on El Camino Real, and it did not have any outdoor market space. The building was constructed over 60 years ago, and reflected design and construction standards that were prevalent at that time. When the owner of the property sought approval for the redevelopment that would result in PC Ordinance 5069, the owners of JJ&F Market indicated their desire to continue a grocery operation on the site, and the neighbors of the project also indicated a desire to keep a grocery store at the site. As a result, a new, modern grocery store space was designed into the project plans. While JJ&F operated under a lease for over 60 years and were granted the rights and opportunity to remain a tenant during the development process and beyond, in March 2010, JJ&F decided to close its operation and to sell its business. See Exhibit 2 for the JJ&F Lease Termination. The decision to sell the business and terminate the lease was made by the Garcias, independently of the property owner. A termination letter to neighbors by John Garcia was sent on November 1, 2010. See Exhibit 3 for the John Garcia Letter. The property owners had hoped to preserve JJ&F in business in the new project and were very disappointed when JJ&F chose to terminate its lease. C. Proposed property owner and Operation The lease for the grocery space in the College Terrace Centre project will be transferred from J&A Family Markets, Inc. to The Grocery Men 1, LLC. The Grocery Men 1, LLC, under the ownership and direction of Miki Werness, will now have the 20 year lease for the market. This is the same lease that was previously presented to and approved by the Palo Alto City Attorney as required by PC Ordinance 5069, with a change of the tenant to Miki Werness's company. The attached College Terrace Market Business Plan provides insight into Miki's vision, as well as the steps he plans to take to accomplish it. Please see Exhibit 4 for the Letter of Intent for the grocery lease assignment and Exhibit 5 for the College Terrace Market Business Plan, and Exhibit 6 for the Lease Guaranties. Brian Spiers Development has reviewed Miki's record as owner/operator. We are aware of his bankruptcy filing, and believe the closing of Miki's Market, located in the Alma Village, was due to several factors that were out of his control as owner/operator. Miki's bankruptcy affects the assets and liabilities he had at the time he filed his bankruptcy case. He can enter into new business ventures after the filing, which will not be affected by his bankruptcy. Miki faced several disadvantages at the Alma Village due to problems with the site including not having access to the El Camino frontage, a severe economic downturn, a larger footprint, and opening up his {00095686-11Page3 of 8 Brian Spiers Development store in a development that was still under construction. We believe the conditions of the College Terrace Market, including the location and the incentives built in to the lease, will allow Miki to flourish. Miki Werness has a long career of grocery successes. His new market is poised for success with more than $2,000,000 of new capital for facility and grocery operating costs. As explained below and detailed in the College Terrace Market Business Plan, this combination of an extraordinary new facility, with superior levels of products, operations, service and character make the College Terrace Market superior to JJ&F Market in 2009. D. Miki Werness as Owner/Operator Miki's work history encompasses a broad range of knowledge and experience in the grocery business, including design and development of supermarket formats, management store openings, inventory control, purchasing, pricing, merchandising and retail team building. Among Miki's most valuable skills for College Terrace Market is having developed a "Crossover Format" that blends organic, natural, upper -end gourmet and price -impact supermarkets. Miki provides only the best quality food and service for his many years of grocery management. Miki's career in the grocery business has been uninterrupted and improving every year since 1980 when he first entered the grocery business. E. Comparison of New Facilities vs. Old This portion of the memo compares the physical layout with respect to parking, site amenities, and interior floor display and marketing features for 2009 JJ&F and the proposed College Terrace Market. Interior and site plans and photographic display are set forth in Exhibit 5 College Terrace Market Business Plan, and Exhibit 6 for the College Terrace Market Parking Plan. Indoor sales floor area for College Terrace Market is 8,000 square feet while JJ&F was under 6,000 square feet. JJ&F had no outdoor market, while College Terrace will provide 2,000 square feet of outdoor food sales and service. JJ&F had, and College Terrace Market will have, some additional areas dedicated to storage and food preparation. College Terrace Market will provide 40 dedicated parking spaces compared with twenty-five shared spaces for JJ&F. There will be fifteen bicycle parking spaces on site for College Terrace Market, while JJ&F had no controlled bicycle parking spaces. A major improvement for College Terrace Market over JJ&F as influenced by the ARB, College Terrace Market provides a full El Camino frontage with highly visible and attractive signage, JJ&F was visible from El Camino only as an uninviting windowless wall. For College Terrace Market there will be elevator access from the garage areas to the ground floor store, and there will be contemporary, highly functioning entry retail doors on the ground floor. These positive attributes were not provided by JJ&F. {00095686-11Page4 of 8 5,000 SF Brian Spiers Development The new College Terrace Market facility provides a superior physical condition with respect to size, sales floor area, ADA, and garage access. The College Terrace Market physical features are greatly superior to those of JJ&F. We provide as Exhibit 7 an excerpt of the letter from Sutti Associates, specialist grocery designers, finding the new College Terrace Market to have far superior design and layout to JJ&F Market. MARKET Interior Sales Floor Outdoor Sales Area IDedicated Parking NONE NONE Full Parking 15 Shared Spaces Public Amenities El Camino Frontage F. Conclusion NONE 8,000 SF 2,400 SF 40 Dedicated Spaces 40 Dedicated Spaces, many more shared spaces Modern electronic doors, outdoor seating, garage access, dedicated elevator NONE At least 100 Linear ft We believe we have demonstrated that College Terrace Market, under the ownership and operation of Miki Werness, will meet and exceed the prescribed standard of the JJ&F Market as it existed and operated on December 7, 2009. II. College Terrace Market will provide long term grocery business viability Please see Exhibit 5 for the College Terrace Market business overview. With its commitment under PC 5069 to deliver a high quality grocery tenant to the community, the property owner believes the College Terrace Market, owned, operated, and leased directly to Miki Werness, most closely reflects the desires of the community and the condition of PC Zone 5069 to ensure the long term viability of the replacement grocery store. {00095686-11Page5 of 8 Brian Spiers Development To mitigate the risks posed by uncertain future economic conditions (short term or long term), the property owner has put in place multiple financial incentives: a) 3 months free rent (@ $22,500/month) b) 3 months %z rent (@ $11,250/month) c) Lease guarantees d) Low Rent In addition to the above, the property owner has agreed to allow the City of Palo Alto to levy a penalty against the property owner in the amount of $2,000 for each day a grocery store is not in operation within College Terrace Centre in accordance with the terms of the PC Ordinance. The possible penalty incentivizes the property owner to do all it can to keep the College Terrace Market in place and profitable. With the mitigation factors above we believe property owner has put in place multiple backstops to protect the College Terrace Market and foster its growth. Combining the risk mitigation factors with the business plan as laid out by the College Terrace Market, provides a strong case for long term grocery viability. III. The Grocery Men 1, LLC will be the lease holder and owner operator of the College Terrace Market On August 11, 2014, the City Council rejected J&A Family Market finding that the information about ownership and management of J&A Market was too incomplete to confirm its comparability to JJ&F, and because James Smailey was reported not to have adequate grocery operation background. On December 1, 2014, the City Council rejected J&A Family Markets, Inc. as the proposed operator, for the primary reason that the lease holder was not an experienced grocery owner operator. The message from the City Council was clear, and we believe we have met the requirements by agreeing to lease the grocery space to Miki Werness and his partners Addison Wright and Chris Iversen. Miki brings years of experience owning and operating successful grocery stores. Please see the Letter of Intent for the lease in Exhibit 4 Please note, The Grocery Men 1, LLC is the sole lease holder and is wholly independent of College Terrace Centre LLC. No members of the College Terrace Centre LLC, the Chicotle Trust, or the Smailey's, will be members and/or investors in the College Terrace Market or The Grocery Men 1, LLC. IV. Restrictive Covenant - $2,000/day Penalty Please see Exhibit 7 for the Restrictive Covenant between College Terrace Centre LLC and the City of Palo Alto. The Restrictive Covenant will provide the following penalty: "In the event that the Replacement Tenant, and any subsequent tenant thereafter, fully ceases business operations within College Terrace Centre and such cessation continues for a period of time in excess of six (6) consecutive months or the {00095686-11Page6 of 8 Brian Spiers Development applicable grocery store tenant is not replaced with another grocery store tenant that begins business operations within such 6 -month period, the City shall have the right, but not the obligation, to levy a penalty against Owner, or any successor owner of the Property, as the case may be, in the amount of Two Thousand Dollars and 00/100s ($2,000.00) (the "Penalty") for each day after each 6 -month period that a grocery store is not in operation within College Terrace Centre in accordance with the terms of the PC Ordinance." The Restrictive Covenant also allows for City enforcement and inspections: "Upon no less that two (2) business days' prior written notice, City shall have the right to inspect grocery store operations once per year for the sole purposes of confirming that (i) the Replacement Tenant, or any subsequent tenant, is providing products and services typical of a neighborhood serving store such that it shall not become a convenience mart facility and (ii) such products and services are comparable in quality to those of JJ&F as it existed and operated on December 7, 2009." This agreement meets the Council's requirements as set forth in the December 1, 2014 City Council meeting. V. Conclusion As we have shown above, the proposed owner/operator lease holder The Grocery Men 1, LLC dba College Terrace Market meets the requirements as set forth by the City Council. Additionally, the Restrictive Covenant will allow the City of Palo Alto a tool for enforcement of the PC Ordinance. We ask that the City Council provide approval of the proposed grocery tenant. Sincerely, Brian Spiers President, Brian Spiers Development, LLC Managing Member, College Terrace Centre, LLC cc: Harry Fox (attorney for College Terrace Centre, LLC) {00095686-11Page7 of 8 Brian Spiers Development ATTACHMENTS/EXHIBITS: EXHIBIT 1— Manatt Letter to Cara Silver Outlining BSD's Role EXHIBIT 2 — JJ&F Termination of Lease Agreement EXHIBIT 3 —John Garcia Letter EXHIBIT 4A — Letter of Intent for Lease with The Grocery Men 1, LLC EXHIBIT 4B — Assignment and Assumption of Grocery Lease EXHIBIT 5 — College Terrace Market Business Plan EXHIBIT 6 — College Terrace Market Parking Plan EXHIBIT 7 — Excerpt from Sutti Associates Report EXHIBIT 8 — Restrictive Covenant EXHIBIT 9 — Original Lease {00095686-11Page8 of 8 Brian Spiers Development EXHIBIT 1 Manatt Letter to Cara Silver Outlining BSD's Role manatt manatt 1 phelps 1 phillips December 8, 2014 Cara E. Silver, Esq. Senior Assistant City Attorney City of Palo Alto 250 Hamilton Avenue Palo Alto, California 94301 Michael C. Polentz Manatt, Phelps & Phillips, LLP Direct Dial: (650) 251-1440 E-mail: MPolentz@manatt.com Client -Matter: 40325-030 Re: 2100 El Camino Real, Palo Alto, California (College Terrace Centre LLC) City Council Consideration of Replacement Grocer Tenant December 8, 2014 City Council Meeting Dear Ms. Silver: As you know, this law firm represents the legal interests of College Terrace Centre LLC (the "Company"), the owner of that certain block in Palo Alto known for street address purposes as 2100 El Camino Real (the "Property"). The purpose of this letter is to provide you and the Palo Alto City Council with a brief introduction to a new co-owner of the Property. On or about October 17, 2014, in conjunction with a recapitalization of the Company, Brian Spiers Development, LLC, became a co-owner and the sole manager of the Company. Brian Spiers, individually, is the sole manager of Brian Spiers Development, LLC. Subject to the terms of the Company's second amended and restated operating agreement, Brian Spiers Development, LLC is solely authorized to act upon and bind the Company. 1841 Page Mill Road, Suite 200, Palo Alto, California 94304 Telephone: 650.812.1300 Fax: 650.213.0260 Albany 1 Los Angeles New York 1 Orange County Palo Alto Sacramento San Francisco 1 Washington, D.C. 313594221.1 manatt manatt 1 phelps 1 phillips Cara E. Silver, Esq. City of Palo Alto December 8, 2014 Page 2 Should you or the Palo Alto City Council have any questions in regards to the substance of this letter, please let me know. Sincerely, Michael C. Polentz MCP:ehs cc: Client (via email) City Council (via email) Ms. Hillary Gitelman (via email) Mr. James Keene (via email) ACKNOWLEDGED AND AGREED: CLARA E. CHILCOTE TRUST, an irrevocable trust created under California law By: Name: Joseph E. Oeschger Title: Trustee 313594221.1 Brian Spiers Development EXHIBIT 2 JJ&F Termination of Lease Agreement 08/23/20:13 56:43 650 ;67 M0LLIE STONES ET PAGE 02/02 TE 'tM1+lA ION 4.r ACRErAnal"CSf1J,EASE, 1. PARTIES t1,Ni) EFFECTIVE DATE, TItIS TE1L's41NATTON OF AGREEMENT TO LEASE ("Agreement") is dated as of Augest• .3 2013 (the "Effective Date"), and is made by and among SOSEPH E. QLSCHGER. ELDORA O. MILLER and PATRICK SMA1L :'Y, all as trustees of the t i,At�A C, CMS carp. TRUST ("Owner") and JOHN GARC'IA, an individual ("Gamin"), ), it. RECITALS. A. Garcia is a party to that certain Agreement to lease dated December 1, 2009 (the "Agreement to Lease") for that certain premises located cm the northwest corner of 2150 El Camino Rent, Palo Alto, State of California ("the Premises") and known as College Terrace Centro, consisting of approximately 8,000 square fact on the Premises, along with approximately 2,000 square feet of outdoor market and 600 square feet of dry storage. The capitalized terms used anti not otherwise defined herein shall have the saute definition as set forth in the Agrixtnomt to Lease. E. Pursuant to Section 4,3 of the Agreement to Lease, Garcia deslm to terminate the /torment to tease upon the terms and conditions contained in this Agreement frt. TERM)N1sTTON. A. pits, Owner and Garcin agree that, as of the Effective Date, the Agreement to Lease shall terminate antornetks0ly without. further nation by the parties ("Fortnination Date"), 1). Sur nder.ofl ertse, Subject to the terms of this Atg erncnt end effective as of the Termination Data, Gamin stu:eadeta. forfeits and quitclaims any and all interest in And to the Agreement to %arc and the Premises to Owner, including without limitation any and till option rights granted therein. C. kprrentier of i>:rr,. Urmn the Termination Date, Garcia shall surrender all rights or interests to possms the Premises to Owner. D. Accept/4nne. Subject to and conditioned upon the terms, ngrcement9, and representations herein contained, Owner accepts the lamination of the Agreement to Lease as of the Tcrnrioatien Date. IV. GENERAL. A. Mtdt'nee,lt FM. The provisions of the Agnomens to Lc2te r npecting attorney's fees shall apply to this AgYcernant. B. Governing Law. This Agreement and any enforcement of the agreements, acknowledgments and n..prescrrtations of Owner and Garcia set forth above shall be governed by and construed in accordance with the haws of the State of California. founteoggs,, If this Agreement in executed in counterparts, each counterpart shall be deemed tut original, This Ages;matt shall be deemed executed and delivered upon each party's delivery of executed signature pages of this Agreement which signature pages may be delivered by ties3mile or entail with the same effect as delivery of the originals. Sip:agora an the following love Plom r erg 11009077.1 P 08/23/2013 .15:18 PAX 208 73g.8600 The UPS Store 3386 08/23/2013 13:42 650 609 ADVENTERA Aug 23 13 02:OOp Oeschger 400-745-5145 00/22/2013. 08!44 6563232367 WILLIE STOME5 MARKET OWNER: mogoem 200.1/001 PAGE 02/02 p.1 f�J PAGE 01/01 Brian Spiers Development EXHIBIT 3 John Garcia Letter , 11/1/2010 DearJJ&F Customers, Friends, Family, Since 1948 JJ&F has been an institution in the College Terrace area of Palo Alto. We have been there through thick and thin, goad times and bad, births and deaths. 62 years of family and fun. If you add up all our years, Lloyd, Dennis a Rd John have been in this location for over 145 years. You, the Customer have been our family for those 145 years. ! really wish this was to be a happy letter to you, but we can't hide it any longer. It is with great sorrow that I have to tell you that JJ&F has been sold. Between this terrible economy, and the .new shopping habits, we can no longer compete. We are a union shop so our costs are much higher than non union. We don't have the buying power of our competition, so things cost rnore. We have tried, but we can't do this any longer. We have sold our assets to a very nice person that has the means and knowledge to make your neighborhood store much better. He also has the means to build the new market, and is planning to do so. We were lucky to find ]ssa Aho of Emerald Market in the Emerald Hills area of Redwood City, looking for another Ibcation. He has a very nice quality store, with a knowledgeable staff, something we think you deserve. If you like JJ&F, we think you will love Emerald Market. Please understand that they are here for YOU, because we can't be. REMEMBER TH1S..,ln order to have a neighborhood market in YOUR neighborhood, you MUST shop there. We also want you to know that JJ&F's leaving has nothing to do with the College Terrace Center, and or our landlords. They have been very forgiving to us this last year. They have tried to help us get through this, been very patient with our !ate or skipped rents. Since the last City Council meeting a lot has happened to us. Mostly, Trader Joes has opened. We didn't think that they would hit us as hard as they did. We have lived through many tough stores, comings and goings, why would this be any different. Well they are! JJ&F is not a business, it's a family business, a many family business. We have Joe, John & Frank, Lloyd, Dennis &John, Mike, Mike, Dan, Martin, Lupe,Juan, Gus, Elisa, Eimer, Efrain & Frank, Mostly though, we have you. Without you , JJ&F would have been gone a long time ago. We have had tears of joy, with your farnilies growth, and tears of sadness with loss. It is now our time. 62 beautiful years! Thank you! Lloyd, Dennis & John Garcia Brian Spiers Development EXHIBIT 4A Letter of Intent for Lease with The Grocery Men 1, LLC College Terrace Centre LLC c/o Brian Spiers Development, LLC 388 Market Street, Suite 940 San Francisco CA 94111 December 9, 2014 Miki Werness Addison Wright Christopher Iversen Re: Lease for grocery market at 2100 El Camino Real, Palo Alto Dear Miki, Addison and Christopher: This letter is to set out proposed terms under which your newly -formed LLC will become the tenant and grocery store operator at 2100 El Camino Real, Palo Alto. This letter is an expression of proposed terms but does not bind the parties. A binding agreement will require the execution of an assignment transferring the existing lease to your new LLC, as well as guaranties of the lease by Addison and Christopher. Landlord: College Terrace Centre, LLC. Tenant: A new LLC to be formed by Miki Werness, Addison Wright and Christopher Iversen. Lease Term: 20 years with one 10 -year option to renew. Premises: Approximately 8,000 square feet of indoor market space and 2,500 square feet of outdoor market space, plus storage and food prep space. Base Rent: $22,500 per month. Rent Increases: Each 5 years, based on CPI. Free or Reduced Rent: First 3 months free rent; next 3 months 1/2 rate rent ($11,250 per month). Guaranties: Addison Wright and Christopher Iversen to provide personal guaranties of lease obligation for first 5 years of lease term. Assignment: Landlord will arrange for assignment of existing lease from J&A Family Markets, Inc. to the new tenant LLC. {00095684-1} Miki Werness, Addison Wright and Christopher Iversen Page 2 If these terms are acceptable, please indicate by signing and returning a copy of this letter. We will then proceed to drafting and execution of the legal documents. This Letter of Intent may be executed by facsimile or scanned .pdf (or similar electronic file format) and in any number of counterparts and when so executed, all of such counterparts shall constitute a single instrument. College Terrace Centre, LLC By: Brian Spiers Development, LLC, its Manager By: Brian Spiers, its Manager Accepted: Miki Werness Addison Wright Christopher Iversen {00095684-1} Brian Spiers Development EXHIBIT 4B Assignment and Assumption of Grocery Lease ASSIGNMENT AND ASSUMPTION OF LEASE J&A FAMILY MARKETS, INC. to THE GROCERY MEN 1, LLC THIS ASSIGNMENT AND ASSUMPTION OF LEASE (this "Assignment") is made and given as of December _, 2014, from J&A FAMILY MARKETS, INC., a California corporation ("Assignor"), to THE GROCERY MEN 1, LLC, a limited liability company ("Assignee"), with reference to the following facts: A. Assignor is the Tenant and COLLEGE TERRACE CENTRE LLC, a California limited liability company ("Landlord"), is the landlord under that certain Commercial Lease dated November 20, 2013 including any existing addendum or amendment thereto (collectively, the "Lease"), concerning the premises to be located at the northwest corner of 2100 El Camino Real, City of Palo Alto, California, as the site for a grocery store containing approximately eight thousand (8,000) square feet of floor space, along with an outdoor market of approximately two thousand (2,000) square feet immediately adjacent thereto and approximately six hundred (600) square feet of dry storage in the basement garage (collectively, the "Premises"). B. Assignor now desires to assign all rights and obligations of Tenant under the Lease to Assignee, and Assignee desires to assume all such rights and obligations. C. All capitalized terms used in this Assignment and not defined herein shall have the meanings attributed to them in the Lease. NOW, THEREFORE, the parties hereto do hereby agree as follows: 1. Assignment. The assignment and assumption described in this Assignment shall be effective December , 2014 (hereafter referred to as the "Effective Date"). Subject to the foregoing: (a) Assignor hereby assigns its entire right, title and interest in and to the Lease (and the Premises) to Assignee. (b) Assignee hereby accepts the assignment described herein and, as consideration therefor, assumes and agrees to perform all the duties and obligations of Assignor as Tenant under the Lease. 2. Continuing Liability of Assignor. Notwithstanding this Assignment, Assignor shall remain fully liable to Landlord for the performance of the Tenant's obligations under the Lease during the initial Term, unless and until these conditions are satisfied: (i) this Assignment and Assumption is fully executed and delivered to Landlord by Assignee; (ii) guaranties of the Lease satisfactory to Landlord have been executed and delivered to Landlord by those principals of Assignee designated by Landlord; and (iii) Assignee has been approved by the City of Palo Alto as the grocery store operator for the Premises in accordance with the {00095656-2} 1 requirements of PC Ordinance No. 5069. Upon the satisfaction of such conditions, Assignor's liability under the Lease shall terminate and be of no further force or effect, the persons who previously guarantied the Assignor's obligations pursuant to the Lease shall be released from their guaranty obligations, and Landlord shall return to Assignor the security deposit previously made by Assignor. 3. General Provisions. (a) Attorneys' Fees. Should any suit be brought to enforce or interpret the terms of this Assignment or any obligation herein, the prevailing party, either by way of settlement or by final judgment, shall be entitled to recover its reasonable attorneys' fees, costs and expenses. (b) Entire Agreement. This Assignment contains all of the covenants, conditions and agreements between the parties and shall supersede all prior correspondence, agreements and understandings, both oral and written. (c) Construction. The headings used in this Assignment are for convenience and reference use only, and are not to be considered in the construction or interpretation of this Assignment. The parties agree that each party and its legal counsel has reviewed or has had the opportunity to review this Assignment and that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in any construction or interpretation of this Assignment. (d) Counterparts. This Assignment may be executed by facsimile or scanned .pdf (or similar electronic file format) and in any number of counterparts and when so executed, all of such counterparts shall constitute a single instrument binding upon all parties notwithstanding the fact that all parties are not signatory to the original or to the same counterpart. (e) Governing Law. This Assignment shall be construed and enforced in accordance with California law. (f) Successors and Assigns. Subject to the limitations in Section 11 of the Lease, this Assignment shall inure to the benefit of and be binding upon the successors and assigns of the parties hereto. [Signatures on next page.] {00095656-2} 2 [Signature page to Assignment and Assumption of Lease.] IN WITNESS WHEREOF, the parties hereto have executed this Assignment effective the day and year first above written. Assignor: Assignee: J&A FAMILY MARKETS, INC., a THE GROCERY MEN 1, LLC California corporation By Name Title By Name Title {00095656-2} 3 LANDLORD'S CONSENT Landlord hereby consents to the Assignment to which this consent is attached and accepts Assignee as Assignor's successor under the Lease. From and after the Effective Date of the Assignment, Assignee shall be entitled to all rights and estates of the Tenant under the Lease. Landlord waives, for the benefit of Assignee only, any prior defaults of Tenant pursuant to the Lease. The foregoing waiver shall not apply to any future default or breach of obligations of any Tenant pursuant to the Lease and Landlord retains all rights and remedies pursuant to the Lease with respect to any future default or breach. Landlord waives any requirement that existing guarantors of the Lease consent to this Assignment. Landlord agrees that, upon satisfaction of the conditions set forth in Section 2 of the foregoing Assignment, Assignor's liability under the Lease shall terminate and be of no further force or effect, the persons who previously guarantied the Assignor's obligations pursuant to the Lease shall be released from their guaranty obligations, and Landlord shall return to Assignor the security deposit previously made by Assignor. Landlord: College Terrace Centre LLC, a California limited liability company By: Brian Spiers Development, LLC, a California limited liability company, its Manager By: Brian Spiers, its Manager {00095656-2} 4 Brian Spiers Development EXHIBIT 5 College Terrace Market Business Plan A Neighborhood Market BUSINESS OVERVIEW DECEMBER 2014 Michael Werness 707-455-0259 707-685-1787 mikiwerness@comcast.net MARKET Table of Contents 1.0 Description of Business 3 1.1 Start-up Summary 3 1.2 Organizational Structure 3 1.3 Location and Facilities 4 2.0 Products and Services 5 2.1 Departments & Grocery Selection 5 3.0 Market Analysis 7 3.1 Competition 7 4.0 Strategy and Implementation 8 4.1 Marketing Strategy 9 4.2 Competitive Advantages 10 5.0 Mission and Purpose 10 5.1 Personnel & Staffing Plan 11 Appendix A: Vision Statement 12 Appendix B: Management Team Resumes 14 Appendix C: Key Staff Resumes 20 Appendix D: Renderings 26 Appendix E: Preliminary Floorplan 27 Appendix F: Competitive Map 28 Page 2 of 28 MARKET 1. Description of Business College Terrace Market is a return to basics — real food with real quality, selection, and price. Its format, conceived and developed by Miki Werness, breaks the rules of both conventional and natural foods grocery stores by lowering prices, supporting small-scale food manufacturers and local farmers, and creating the ambience of a relaxed, interesting shopping environment while operating as a well -organized business. The tenets are simple: Develop an attractive store model, an appealing design, a branded store name, an enhanced "esprit de corps" among employees, and improved product lines. The store will be an exceptional mix of local products made by small-scale businesses and farms with local flavor and local appeal on the shelves alongside name - brand products, all at low prices, in an eclectic atmosphere. It's a viable and extremely successful concept. Viewed as an open-air, European -style market, the proposed College Terrace Market at 2100 El Camino in Palo Alto, California, is located in an attractive area, and meets the demographic guidelines: a collegiate community located in a medium-sized, prosperous Bay -area suburb with an educated population, including lower economic areas, where value is recognized and patronized. 1.1 Start-up Summary The capitalization of College Terrace Market will be in excess of $2,000,000. 1.2 Organizational Structure The business will be incorporated as an Arizona LLC, with Miki Werness, Chris Iversen, and Addison Wright as managing members. Chris Iversen and Addison Wright are excited to be a part of a dynamic retail food business with Miki Werness providing the day-to-day management, and will assist in the marketing, growth strategy, construction and financial analysis. Page 3 of 28 MARKET 1.3 Locations and Facilities Space The store will comprise approximately 8,000 SF. Date of Opening College Terrace Market anticipates opening the store in Spring 2016. Hours of Operation At a minimum, the store will operate as follows: Monday through Saturday from 7A -9P, and Sunday from 9A -7P. The store will close in observance of certain national holidays. MARKET Interior sales floor 8,000 sf Outdoor sales area 2,447 sf Dedicated parking 40 dedicated spaces Full parking 40 dedicated and many more shared spaces Public amenities Modern electronic doors, the park area, outdoor seating and garage access with elevator El Camino frontage Not less than 100 linear feet Page 4 of 28 MARKET 2.0 Products and Services With fresh, local produce making up one-third of the sales floor, the store will offer a wide variety and choice of sustainable, organic foods (grown without chemicals), natural foods (minimally processed), and health foods (highly beneficial to health) that are uniquely integrated with conventional, name -brand products. Also featured will be an assortment of bulk foods, international cheeses, olive oils, vinegars, spices, and coffees, meals -to -go, an "A" -list deli, homemade soups, service meat and fish, range -free, grass-fed angus USDA prime and choice cuts of beef, smoked meats, and cage -free chicken. There will also be dairy products, frozen foods, dry groceries, beer, an outstanding selection of wines, and sundries — all affordably priced and available for everyone. Creating "destination" shopping is key; the store will be a "complete shop." The essential role of College Terrace Market is to act as purchasing agent for the consumer, offering excellent products and services to customers while improving shopping options to local residents. Further, the store will conduct its business in a manner that encourages community participation for the benefit of Palo Alto, College Terrace Market, its principals and employees, and the environment. College Terrace Market will provide new job opportunities and financial rewards for its employees who will be well -trained and well -versed in customer service, and recognizes that their contribution will be the cornerstone of the store's ultimate success. 2.1 Departments & Grocery Selection College Terrace Market will be comprised of multiple departments, including the following: • Bakery • Butcher/Meats • Fish • Produce • Beer & Wine • Prepared Meals • Dairy • Frozen Foods • Spices/Oils/Teas/Coffees Page 5 of 28 MARKET College Terrace Market will offer a wide variety of grocery options, including both conventional and organic. A sampling of the products offered: Baby Food Cookies Floral Mayonnaise Rice Baby Supplies Corn Meal Flour/Baking Meats Salad Dressings Baking Needs Corn Starch Foil and Wraps Milk Salt Batteries Cosmetics Frozen Foods Mixers Sauces and Marinades BBQ Sauce Crackers Garlic Spread Mushrooms Shaving Supplies Beans Creamers Gelatin Mustard Snack Mixes Bread Croutons Gourmet Spices & Sauces Napkins Soap, Bar Breakfast Foods Dairy Granola Nuts, Baking Soda Butter Delicatessen / Full Service Hair Care Nuts, Mixed Soda, Baking Cake Mix Delicatessen / Packaged Ice Cream Oils Soup, Can Candies Deodorants Instant Potatoes Olives Sports Drinks Canned Fruits Detergents Jam Jelly & Peanut Butter Paper Plates, Cups Sugar Cereal Diapers Juices, Can & Bottled Paper Towels Tea Cheese Diet Foods Juices, Chilled Pasta Tissue Chips Disinfectants Kitchen Gadgets Pasta Sauce Tomatoes, Can Chocolate Dried Fruits Kosher Foods Pastries Toothpaste Cleaning Supplies Eggs Laundry Detergents Pet Food Trash Bags Club Soda Energy Drinks Light Bulbs Pickles Tuna Cocoa Fabric Softeners Lunch Meats Picnic Supplies Vinegar Coffee Facial Tissues Magazines Popcorn Vitamins Condiments Feminine Hygiene Marshmallows Prepared Foods Water Cones / Ice Cream Floor Care Matches Produce Wine Page 6 of 28 MARKET 3.0 Market Analysis The viability of the new store and the prospects for success were clearly identified during the entitlement process for the development of the project which will house the grocery. Within walking distance to the College Terrace neighborhood, Stanford University housing for Professors, Graduate Students, and the work force adjacent to the Stanford Research Park. Total customer base adjacent to, or within walking distance to the store, is in excess of 12,000 individuals. The store intends to capitalize on market trends and growth. Shoppers are migrating away from the conventional, chain, and mega -grocery stores because of high prices and gimmicks, and disenchantment with the corporate image. Research demonstrates that the new movement is toward the natural, organic, and healthy life-style foods. This concept is viable and extremely successful. College Terrace Market has expanded upon that movement by developing the concept of a local, community -oriented store. Since the El Camino location is under -stored, College Terrace Market is in a unique position to capture the marketplace in this area. It's also a price -driven format, which obtains a more highly successful image through innovative merchandising and aggressive buying, and always passing the savings on to the customer. In other words, it's buying "right" while understanding the customer base. The store will serve as an exceptional, one -of -a -kind alternative to the chain and conventional supermarkets. 3.1 Competition Palo Alto is made up of distinct neighborhoods and geographically separate areas. For example, CalTrain has tracks running from San Francisco to San Jose that dissect the community, thereby creating distinct shopping areas to the west and east of that divide. In a similar manner El Camino Real is a state highway that also runs north to south and presents the same impression of separation. With this separation in place, it is noted that there are no competing grocery stores west of El Camino Real servicing the client base referenced above. Neither are there competing grocery stores within 2 miles to the north or 4 miles to the south. It is also noteworthy that Big Box retailers do not exist within the city limits of Palo Alto. Therefore, immediate/proximate competition from retailers such as Costco does not exist. However, College Terrace Market does not plan to compete with outlets such as Costco, but rather it will focus on providing a local and convenient shopping experience with a full array of products requested by its client base. It is also worth noting that as a local enterprise with an attentive staff, College Terrace Market will be aware of the needs of its clients through surveys and questionnaires, personal interactions and requests for feedback and evaluation. Based on the results of this feedback College Terrace Market will have the flexibility to select Page 7 of 28 MARKET products in keeping with client needs and demands. To capture and retain customers, on-site/on-line ordering for the 300 +/-office employees plus neighborhood residents and other customers will allow for orders to be prepared and ready for pick up, Leapset is an app that people can download and use to order items ahead of time and allows for frequent shopper programs to be tracked and used, thereby reducing the time needed to shop. Lastly, an Open Account will be reinstated for frequent shoppers and neighborhood residents with monthly billing. 4.0 Strategy and Implementation The months leading to the opening of College Terrace Market will be used for oversight of the tenant improvements and permitting phase, establishing a social network presence to update and build neighborhood awareness, working with the majority of vendors for product placements and promotions, and training of middle management on system and store policies. After years of nurturing thousands of vendor relationships, and helping develop, introduce, and promote new, unique, organic and natural products, and fresh, local produce to the marketplace, the vendor support for College Terrace Market and this store is unparalleled. Using low and aggressive pricing, utilizing specials offered by vendors and wholesalers, offering the convenience of discovering a wide range of unique grocery items, and making a commitment to healthy living is key to attracting and keeping a wide spectrum of customers — from hip to conventional, from the affluent to the working class to the low- or fixed income families, from professionals and the trades to students and retirees. Equally important, College Terrace Market will provide small-scale organic, natural, and healthy food manufacturers and local farmers and growers sufficient shelf space without the exorbitant real estate prices demanded by larger chains and corporate stores. As a result, customers will have a greater choice while supporting their local community of manufacturers and farmers. In addition, College Terrace Market will also develop high -quality, organic, private -label products. For the store and its vendors, it is providing the customer real food with real quality, selection, and price. Vendor coordination and negotiation for product placement and promotions are planned during the construction phase. Certain vendors offer additional equipment units and racks for specific products, as well as a marketing coordination of seasonal products and time events. These promotional activities can and will be coordinated with a Grand Opening event. Other larger vendors that provide a majority of the grocery items like Pitco and Unified Grocers design product merchandising layouts, row by row, item by item, with our Management team that best suits the clientele of the College Terrace Market. Other Page 8 of 28 MARKET vendors like Harris Ranch Meat and Boars Head Deli provide promotional products to be prepared and sampled on an ongoing basis during the opening period to ensure product recognition and awareness is established. All vendors provide database information and support for Point of Sale systems and inventory tracking which is coordinated during the training of middle management and department supervisors for both system understanding and product awareness. Reaching out to the community to let them know that their demand for a full service grocery store in the College Terrace Centre project has been met will not only act as marketing for the store but overall mutually beneficial goodwill toward the project. Through our cultivation of relationships with the local papers, networking with the community neighborhood groups, and outreach to the Stanford community reiterating that College Terrace Market is an independently owned and operated neighborhood store, we will get high valued marketing and gain potential customers. 4.1 Marketing Strategy Marketing and advertising will not be conventional in nature. Instead, it will be comprised of word of mouth, in-store flyers, radio, strategically located billboards, and a strong internet/website presence. Its campaign will be dynamic and combine both brand image and a sense of merchandising urgency. Customers will shop the store because College Terrace Market will provide a legitimate incentive to shop — providing national brands and organic, natural, and healthy products at low prices. Proximity to businesses creates an ease of shopping experience for employees traveling home after work. Additionally, with parking available for small buses, local retirement homes have expressed interest in busing their clientele to the site for shopping and the Stanford Margarite (the free Stanford University shuttle) has agreed to add the project to its daily schedule. Outreach to returning and new customers will be done through social media, newspapers and local publications with announcements and traditional advertised specials and sales. A strong focus will be placed on joint advertising with suppliers and supplier specials/loss leaders will be utilized. There will also be an ongoing outreach program to local neighborhood associations (College Terrace, Evergreen Park, Green Acres, Old Palo Alto, Professorville, Research Park, Southgate, and Ventura). Page 9 of 28 MARKET 4.2 Competitive Advantages College Terrace Market will enjoy several competitive advantages: • Low Rent • Landlords dedication, and requirement, to keeping a grocery operational on -site • Small footprint • Proximity to College Ave., Stanford, Yelp, and the College Terrace neighbors • New building & Facilities • High barriers to entry in Palo Alto. Prohibition of the construction of new grocery stores larger than 20,000 Sf • Facing El Camino, exposure to 60,000 daily vehicle trips • 2,000 SF of outdoor space 5.0 Mission and Purpose Influenced by culinary visionaries, such as Alice Waters, COLLEGE TERRACE MARKET is a return to basics — real food with real quality, selection, and price. It is an upper -end, price -impact format that breaks the rules of both conventional and natural foods grocery stores by lowering prices, supporting small-scale food manufacturers and local farmers, and creating the ambience of a relaxed, interesting shopping environment while operating as a well -organized business. COLLEGE TERRACE MARKET WILL • Create, operate, and develop a sustainable basis for the Store, Its employees and investors, the community, and the environment. • Sell a wide variety of organic, natural, and healthy groceries and other real food and conventional items that fit the Store's profile while continually developing resources and better ways to offer the best possible prices. • Champion the cause for delicious, fresh, local, and seasonal meals and foods • Provide jobs to local employees, offer excellent products and services to customers, and improve shopping options for local residents. • Operate on a sound financial basis of profitable growth and increased value while creating career opportunities and financial rewards for the Store's employees. • Conduct its business in a consistent manner with honesty and integrity in all matters with its employees, customers, suppliers, and the community in which we live and work. • Identify the importance of people as individuals, and recognize that the contribution of our employees is the cornerstone of the Store's success. Page 10 of 28 MARKET 5.1 Personnel and Staffing Plan The College Terrace Market will be managed by highly experienced individuals. In addition to the years of know-how Miki brings, he is hiring knowledgeable and passionate members of the team to manage key departments. Any good neighborhood market will have a butcher that knows the neighbors as well as they know the meats. Ed Costa is that man. Ed will bring 39 years of experience as a meat cutter and butcher to the College Terrace Market. He is highly skilled in processing and cutting all kinds of meats, including fish and poultry. He has extensive customer service skills, and will bring a warm and friendly demeanor to his craft. Managing the bakery will be Isabella Costa. Her 30 years of experience in the industry include running the bakery and delis for Cosentino's Market, Delizioso Bakery, and Miki's Farm Fresh Market in Palo Alto. Isabella will bring a wide range of recipes and consumer conscious products, integrating the feedback from the local community in her menus. Miki will also be bringing on board a Wine expert. This personnel is TBD. Page 11 of 28 MARKET APPENDIX A Vision Statement for the Market COLLEGE TERRACE MARKET avows that good food should be a right, not a privilege. COLLEGE TERRACE MARKET will create a large, joyous gathering attracting thousands of cooks and eaters, producers and purveyors, grangers and growers, farmers and ranchers, cheese makers and winemakers, bakers and beekeepers, fishermen and foragers — all united by a passion for food and for a sustainable future. COLLEGE TERRACE MARKET is helping foster a new food nation. The whole process of thinking about food, deciding what to eat, shopping for the ingredients, and cooking and eating a meal is the purest pleasure. It is too much fun to be reserved exclusively for "foodies." Indeed, cooking and shopping for food brings rhythm and meaning to our lives. Daily cooking improves the economy of the kitchen. A garden brings life and beauty to the table. There is enormous pleasure in cooking good food simply, and in sharing the cooking and the eating with friends and family. Cooking creates a sense of well being for yourself and the people you love, and brings beauty and meaning to everyday life. COLLEGE TERRACE MARKET will provide regular shopping routines that are pleasing, efficient, and economical. COLLEGE TERRACE MARKET is a price -driven, upper -end format, obtaining image through merchandising and buying "right." COLLEGE TERRACE MARKET will encourage local and community participation for the benefit of the Company, its employees and investors, the city of Palo Alto, and the environment. The Company believes in the importance of economic growth and profits in order for it to remain competitive, provide jobs, and preserve its financial strength. COLLEGE TERRACE MARKET will be a leader in the marketplace — never a follower. COLLEGE TERRACE MARKET will quickly capitalize on market trends and growth, offer innovative and dynamic merchandising, implement aggressive buying techniques, and understand and faithfully serve its customer base. COLLEGE TERRACE MARKET believes in astute management and well -trained employees. Page 12 of 28 MARKET COLLEGE TERRACE MARKET plays an essential role — acting as purchasing agent for the consumer. By creating and operating a price -impact, upper -end grocery store, this format will offer delicious, affordable, wholesome food that is organic, local, and seasonal. Freshness is key. There is great pleasure in the beauty, smell, taste, and feel of the ingredients. Touch conveys so much about freshness, ripeness, condition, and texture. Vegetables and fruit just harvested have a vitality that one can see and taste and smell. That is one of the arguments for buying locally produced food: the closer you are to the source, the fresher the food is likely to be. That the food is organic is also critical. It will taste the best because it will have been grown in healthy soil. The food we eat is simply not wholesome if it contains harmful chemical residues. And by choosing to buy food from farmers and ranchers who produce food organically, together we support the people who are taking care of the environment and nurturing the soil. COLLEGE TERRACE MARKET — real food with real quality, selection, and price. Page 13 of 28 APPENDIX B Management Team Biographies/Resumes 1. Miki Werness 2. Addison Wright 3. Christopher Iversen Page 14 of 28 MARKET BIOGRAPHY OF MICHAEL S. WERNESS For more than 50 years, Michael ("Miki") Werness has been involved in and successful at every aspect of the grocery business — from bagger to owner — and in every format — from Conventional, Price Impact, and Warehouse to Crossover and Price-Impact/Upper-End stores. Highly regarded by his peers as one of the best, most highly sought after and knowledgeable grocers on the West Coast, he has been a consultant and advisor to several independent and small -chain grocers. Over the years, Miki managed and trained thousands of employees ranging from department heads, supervisors, buyers, head clerks, cashiers, produce, bulk foods, and night crew to countless store directors, managers, and assistant managers. Highlights Developed and implemented the "Crossover Format" — a blend of organic, natural, upper - end gourmet groceries in a conventional grocery/price-impact supermarket — for the Berkeley Bowl Marketplace. Sales more than doubled, from $650,000 to more than $1.4MM weekly. Using that format, he reinvigorated the Monterey Market, increasing grocery sales alone by more than 60%, from $11,000,000 to more than $18,000,000 annually. He then reformatted and retooled Farmer Joe's, where sales doubled in less than a year. Opened the first Price -Impact supermarket in Phoenix, Arizona. While Director of Operations at Cooke's Warehouse Foods, the standard bearer of Price -Impact stores in Arizona, Miki was in charge of the day-to-day operations and more than 100 employees. Sales soared from $650,000 to $1.2MM weekly. Served as a District Manager of Brentwood Market's Pac 'N' Save Warehouse Foods, California's first "Price -Impact" stores, where he developed, designed, opened, managed, directed, supervised, and was responsible for two 83,000 square foot stores and one 57,000 square foot store, 600 -plus employees, and which had combined gross sales in excess of $2.2 -million weekly. Further, he managed three store directors, three grocery managers, and the meat, deli, bakery, and produce supervisors. Of note, he managed his first grocery store for Brentwood Markets at the age of 27. Experience Mr. Werness has been responsible for the management, supervision, day-to-day operations, sales, buying, merchandising, inventory control, payrolls, controls, accounting, quality, pricing, store and product presentation, cleanliness, signage, implementing health requirements, and employee hiring and training while designing and implementing numerous special projects, negotiating with vendors and wholesale companies, and serving as the liaison between community and store. His passion for the business is unparalleled. Miki's skills and understanding in effectively accommodating and working with corporate -and family -owned stores, with federal, state, county, and local taxing authorities, negotiating with labor unions, dealing with various state and local licensing boards, and city departments and officials is uncommon in the grocery industry. Page 15 of 28 MARKET Michael S. Werness 406 Stanford Street Vacaville, CA 95687 707-685-1787 mikiwerness@conncast.net BACKGROUND: Work history encompasses a broad range of knowledge and experience including: design and development of supermarket formats, management, store openings, inventory control, purchasing, pricing, merchandising and retail team building. HIGHLIGHTS: • Developed and implemented the "Crossover Format" — opened a blend of organic, natural, upper -end gourmet and conventional grocery price -impact supermarkets for the Berkeley Bowl Marketplace, the Monterey Market, Farmer Joe's and Miki's Farm Fresh Market. • Developed, opened and operated the first warehouse grocery stores in Northern California. • Opened the first price -impact supermarket in Phoenix, AZ. • Owned and operated a price -impact supermarket in Oroville, CA. EXPERIENCE: • Present — MIKI'S FARM FRESH MARKET, Palo Alto, CA Owned and operated market Closed store due to lack of volume to support the store • 2001-2009 — MONTEREY MARKET, Berkeley, CA Responsible for all buying pricing, and merchandising of the store Successfully converted store from conventional (with heavy emphasis on produce) to Crossover Format. Increased sales from $11M to more than $18M annually. Page 16 of 28 MARKET • 1999-2002 — BERKELEY BOWL MARKETPLACE, Berkeley, CA Head Grocery Buyer for 43,000 sq. ft. store Increased sales from $650K to more than $1.4M per week. Responsible for all buying, pricing and merchandising of the store. Designed and implemented special projects including a line of private label products. 1998-1999 — SAV-MAX, Vallejo, CA • Store Director. c; Hired to resolve operational problems at store level. • 1992-1996 - FOOD OUTLET— Oroville, CA Owner, 53,000 sq. ft. Price -Impact store Developed the layout and design, oversaw construction and opened the new price -impact supermarket. Increased store sales to more than $600K weekly. • 1988-1992 — COST LESS FOODS, Chico, CA Director of Store Operations for 50,000 sq. ft. Price Impact store Responsible for all store operations Sales averaged $600K weekly • 1986-1988 — COOKE'S WAREHOUSE FOODS, Phoenix, AZ c Director of Store Operations for 70,000 sq. ft. Price Impact store O Increased sales from $650K to $1.2M weekly. • Negotiated with all vendors. • 1980-1986 — PAK N SAVE WAREHOUSE FOODS, Northern California District Coordinator, Sacramento Store Director, San Jose Page 17 of 28 MARKET BIOGRAPHY OF ADDISON WRIGHT Addison Wright is a multiple, international award -winning Writer/Producer/Director. He has more than three decades of hands-on experience that spans a wide range of projects — from motion pictures, documentaries, and short films to direct -to -video and television programming, internet/web content, music videos, commercials, PSAs, and theater. His diverse and extensive career is highlighted by: 1. The proven ability to successfully complete unfinished or distressed productions — delivering sixty-six (66) multi -million dollar motion picture and documentary films during a ten-year period 2. Adding more than 800 commercials, PSAs, and high -end music videos to his resume in the last 18 years 3. 20 short films that have received critical acclaim and various awards, including two ("Pirates" and "Whatever We Do") receiving top -ten nominations for the 2002 Academy Awards 4. The multiple international award -winning Los Angeles County Metropolitan Transportation Authority ("Metro") rail safety campaign ("Hey Look, Listen Up, Stay Alive") — spearheaded by nine bilingual PSAs — that has saved countless lives, heightened public awareness, and educated millions 5. Creating groundbreaking content and programming for Humana/RightSourceRx during the last four years of which some has saved the company millions of dollars in engineering and operating costs. His keen perception, commanding knowledge, and fundamental skills help balance the "show" (the intellectual, philosophical, and artistic progress) with the "biz" (fiscal responsibility) — creating harmony between art and commerce. He is the calming force in any production, or on any set. He's attached to three major motion pictures currently in development: "McFreedom" (starring William Moseley, Avril Lavigne, Richard Dreyfuss, and Gary Oldman), "Untitled Mary Baker Eddy" (with Ed Elbert and Sarah Ryan Black producing) and "Rastaman" (with "RZA" directing); and, a second $15 -million "Masters Of Horror" television series. Further, Addison is Head of Production for Mental Entertainment, which is a Los Angeles -based commercial production company. Mr. Wright is a free-lance Writer/Producer/Director, and a member of the Directors Guild of America, Screen Actors Guild, and FIND. Page 18 of 28 MARKET BIOGRAPHY OF CHRISTOPHER IVERSEN Christopher ("Chris") Iversen brings a tremendous wealth of business experience, from running a more than $1 -billion in annual revenue operation for Medco (now Express Scripts) to becoming a highly sought after consultant in the Prescription Benefit Management arena, to now serving as CEO for a healthcare startup, Enscion Corporation. As the General Partner in Eagle Consulting Group, clients include healthcare giant Humana and up-and-comer WelldyneRx. While consulting for Silverlink Communications, he developed successful sales strategies for their Pharmacy Benefit Manager clients, numerous in-house training programs at all levels, and created and established multiple advancements and policies with the company's marketing department and operations. With Lakewood Health Plan, Mr. Iversen secured venture capital funding for the startup of operations. At Express Scripts, he helped identify more than $23MM in annual payroll savings at their Call Centers through productivity gains and automation of calls implementation. For US BioServices, he redesigned and built a new dispensing process. Chris also developed a unique workflow process model. At ScriptPharmacy, while serving as Vice President of Operations, he cut $2MM-plus in operating and labor expenses by improving production efficiencies, workflow planning, and implementing policy changes. Further, Chris added over $20MM in revenue in 2004 through Refill Reminder initiative developed in partnership with Silverlink. Previously, he worked for Mercedes Benz of North America and the FW Woolworth Company. Mr. Iversen has extensive experience in both existing and startup operations, and has deep roots in both venture capital and bank financing. Page 19 of 28 APPENDIX C Key Staff Resumes 1. BUTCHER - Edmund J. Costa Jr. 2. BAKER — Isabella Costa 3. WINE—TBD 4. OTHERS —TBD Page 20 of 28 Edmund J. Costa Jr. 15035 Carter Ave. San Jose, Ca. 95118 Cell # 408-680.9803 OBJECTIVE Seeking a Meat Cutter/Butcher position with a Supermarket utilizing strong knife skiFls, customer service abilities and extensive experience in meat cutting. KEY QUALIFICATIONS • 39 years' experience as a meat cutter and butcher • Highly sidlled in processing and cutting all kinds of meat also Including fish and poultry items, • Hands-on experience in operating knife, band saws and meat processing equipment • Working knowledge of mixing, tenderizing, preparing, weighing, and packaging meat products • Able to maintain dean and sanitary work area • Demonstrated ability to maintain high standards of sanitation and personal cleanliness • Extensive Managerial experience WORK EXPERIENCE 1967-1973 Family, Foods Market -Saratoga, Ca. Worked at my family's Market learning the following: • Breaking Beef • Processing Meat, Poultry and Wild Game • Ins and Outs of Produce and Grocery Dept i left the Family Business to pursue opportunity at Fry's Supermarket 1974-1975 Fry's Supermarket #`16 -San Jose, ca. I. Page 21 of 28 MARKET Meat Apprentice Program • Trained In cutting treat, fish and poultry • Trained in all area's of the meat industry(such as cuts of meat, temperature control, knife and cutting skills, sanitation, etc. Left for a Pull -Time position at Cosentino's Market 1975.2011 Cosentino's Market Store #1/South Bascom Ave. San Jose, Ca. Store #2/ Homestead Rd. Santa Clara, Ca. Store #3/Silver Creek Valley Rd. San Jose, Ca. Meat Critter & Meat/Seafood/Poultry General Manager i worked as a Meat Cutter at Cosentino's Market from 1975-1977 then 1 was promoted t( Meat/Seafood/Poultry Manager of stores #1&2. While my duties expanded I also continued my previous duties as a Meat Cutter. In 1999 a new Cosentino's Market opened in Silver Creek where my duties expanded once again as I was made General Manager of Meat/Seafood/Poultry for all 3 stores all the while continuing my previous duties. 1 designed and set up the Meat/Seafood/and Poultry Department this new store. My duties were as follows: • Buying in large quanity • Scheduling • Portion beef, Iamb, veal and pork • Cu;. bone and trim meat • Serve customers at the counter • Prepare product displays • Received deliver;es and check their content and hygiene • Buy, order and control stock - • Move meat stock to cold storage areas • Assist in maintaining clean and sanitary vrurk Lui.idit1ons • Bones, tied and grinded meats • Prepared special cuts of specific meat orders • Ordered and prepped all holiday orders (such as Prime Ribs, Turkeys and Hams) • Prepared special cuts of specific meat orders • Shaped, laved and tied roasts, by means of boning Imife, skewer and twine • Wrapped, weighed and labels and priced pieces of meat • Maintained and stocked product in display • Prepared the Meat/Seafood/Poultry Weekly Store Ads • Broke down, filet'd and portioned whole fish • Prepared fresh ice packed fish case daily 2 Page 22 of 28 MARKS` • Made all of the sausage for the meat case Cosentino's Market sod in 2011 Feb.2011-Aug.2012 t aunardlrs Market -Bascom Ave. San Jose, Ca. Meat Cutter Launardi`s took over Cosentino's previous space and brought in manager and remained on as a meat cutter. Putting to use all of my previous meat cutting experience. Aug. 2012 -March 2014 Thug's Market- Baldwin Ave. San Mateo, Ca. Meat/Seafood/Poultry Manager At Trag's l utilized all a the same manager duties that [ used at Cosentino's Market and also prepared their Meat/Seafood and Poultry Store Ads. As I was very happy at this company my wife and I decided to move to Valley Springs, Ca. to be near our daughter and grandchild. April 2014 -Nov. 2014 Young's Payless Market-Lockeford, Ca. Meat Cutter Although f enjoyed my time with this company my wife and 1 decided to move hack to the Bay Area. 3 Page 23 of 28 Isabella Costa 15035 Carter Ave. San Jose, ca.95118 Cell # 408-480-2348 isa bellacsta5@maii.corn PROFILE I have been in the bakery/deli/grocery industry for 30 years. I have experience in both the retail end of the business with Cosentino's Market, as well as wholesale with Gourmet Express. I have also had the experience of owning my own business. EXPERIENCE COSENTINO: '1' MARKET 8nker i/Floral Manager -1971-2011 I started working at our family business in 1971 and have worked my way up to bakery mananger. I took time off and had an opportunity to run my own business. Then I returned to Cosentitno's when we had three stores, as well as doing the buying and advertising for the department. Part of my job is always staying current in the industry. I have attended food shows, seminars, and lam always staying ahead of what the consumer is looking for. l listen to what my customers want and seek out sources to fufill these needs. Bakery/Deli is always about taste and presentation. Value comes next. DELOOSO ILIAAERYVal C4F1'' Owner -1991-1996 I opened my own bakery/deli in the heart of Los Gatos. 1 featured custom wedding cakes and catering_ I also serviced a wholesale line of pastries for six restaurants for their dessert menu. I also had a line of gourmet grocery products in my shop. It was a learning experieince and it allowed me to Page 24 of 28 MARKET Page 25 of 28 MARKET APPENDIX E Preliminary Floorplan Page 27 of 28 UV TEE 1r= MARKET APPENDIX F Competitive Map California Avenue GaloeeF T . Mobile. s Cltl o Ymk8nrtlYbe TdooriOtm 11.Qur FateitBdc a.ewbp i+�oeMu�n Page 28 of 28 1 D TI D Z I Pg, 3 Brian Spiers Development EXHIBIT 6 College Terrace Market Parking Plan —., waral 3.A.=909 SO. F, OCC. S2 SHOWER ROOM ti ;tiP'.F.N;ATM LONG-TERM BIKE PARKIN (191 - GROCERY -6SPSCES GROORY - 8 SPACE BASEMENT I.LEVa F GA.= SQ. FT. OCC. OCC. B 81,0651 200= 205 LEV POTENTIAL SPACES (10) CARPOOL SPACES (6) COLLEGE TERRACE CENTRE BASEMENT LEVEL A PARKING ASSIGNED TO GROCERY STORE (40 SPACES) AND PUBLIC (65 SPACES) CARSHARE SPACES CARPOOL (2) SPACES EV (2) SPACES (2) POTENTIAL CARPOOL SPACES (6) MC SPACES' (2) ,R� • ^ G.A7E.243 SO. OCC. S2 Brian Spiers Development EXHIBIT 7 Excerpt From Sutti Associates Report 700 Airport Blvd., #260 Burlingame, CA 94010 v Tel. 650-343-4244 Fax 650-343-4944 Y www.suttiassoc.com EXHIBIT 15 COMPARISON OF JJ&F WITH SUPERIOR PHYSICAL LAYOUT OF COLLEGE TERRACE MARKET This memo compares the physical layout with respect to parking, site amenities, interior floor display and marketing features for the JJ&F market and the proposed College CTM. Interior images, site plans and photographic displays are set forth in Exhibits 8,9,10, & 11. The CTM grocery area at 13,500 square feet is substantially greater than that of JJ&F, which was only at 11,500 square feet. Indoor sales floor area for CTM is 8,000 square feet while JJ&F was less than 6,000 square feet. JJ&F did not have an outdoor market while CTM will provide 2,400 square feet for attractive, inviting, outdoor food sales and service. Both JJ&F and CTM have some areas dedicated to storage and food preparation. CTM will provide 40 dedicated parking spaces compared with twenty-five shared spaces for JJ&F. There will be fifteen bicycle parking spaces on site for CTM compared to JJ&F, which had no controlled bicycle parking spaces. A major change for CTM and an important ARB influence on the PC Zone, CTM provides a full El Camino frontage with highly visible and attractive signage, JJ&F had no visible appearance to El Camino with a windowless wall that was uninviting. A California Corporation o License No. 338908 For CTM there will be elevator access from the garage areas, to the ground floor store, and there will be contemporary, highly functioning entry retail doors on the ground floor. These positive attributes were not provided by JJ&F. Simply stated: The CTM project provides a superior physical condition with respect to size, sales floor area, ADA access, garage access and predominance along El Camino as compared to JJ&F. These improved features alone would allow CTM to proceed with a building permit since it will have met or exceeded the conditions of JJ&F. A California Corporation License No. 338908 700 A poL t Blvd., 060 Burlingame, ame, CA 94010 TeL 650-343-4244 Fax 650-343-4944 ': :d W.Su?t.a53oc.Com City Consultant, Sutti Associates: After reviewing the information provided to the City's Consultant it is the opinion of the Consultant "that the proposed store layout, marketing, strategy, management team and advisors will create a store that will be a benefit to the community of Palo Alto and will be comparable, if not superior, in quality of products and services to IMF". Brian Spiers Development EXHIBIT 8 Restrictive Covenant RECORDING REQUESTED BY, AND WHEN RECORDED, MAIL TO: CITY OF PALO ALTO City Hall, 8th Floor 250 Hamilton Avenue Palo Alto, CA 94301 Attn: City Attorney (Above Space For Recorder's Use) The undersigned declares that this document is recorded at the request of and for the benefit of the City of Palo Alto and therefore is exempt from the payment of the recording fee pursuant to Government Code §6103 and 27383 and from the payment of the Documentary Transfer Tax pursuant to Revenue and Taxation Code §11922. RESTRICTIVE COVENANT (PC ORDINANCE 5069) This Restrictive Covenant ("Restrictive Covenant") is made as of December _, 2014, between COLLEGE TERRACE CENTRE LLC, a California limited liability company ("Owner"), and the CITY OF PALO ALTO, a California municipal corporation ("City"). Owner and City are collectively referred to herein as the "Parties," and individually as a "Party." RECITALS A. Owner is the fee owner of certain real property located at 2100 El Camino Real in the City of Palo Alto, County of Santa Clara, more particularly described on Exhibit A attached hereto and incorporated herein ("Property"). B. On December 2, 2009, the City, acting by and through the City Council, approved Ordinance No. 5069 (the "PC Ordinance"), amending Section 18.08.040 of the Palo Alto Municipal Code to rezone the property to PC Planned Community 5069 and allow the development of the Property as a mixed use project comprised of commercial, residential and office, and related parking facilities ("College Terrace Centre"). C. In approving the PC Ordinance, City made the requisite finding that development of the Property under the provisions of the PC Planned Community District would result in public benefits not otherwise attainable by application of the regulations of general districts or combining districts. Section 4(f)(1) identifies as a public benefit inherent to the development project, provision of an 8,000 square foot neighborhood -serving grocery market. D. Section 4(b) of the PC Ordinance imposes, in relevant part, special limitations on land uses including the following limitations with regard to the grocery store: (i) A grocery store, with an area of at least 8,000 square feet, shall exist within the development for the useful life of the improvement; (ii) The grocery store shall be a neighborhood service grocery store that provides all the typical grocery store products and services of a neighborhood serving store such 313598535.4 1 that it shall not become a convenience mart facility; (iii) The grocery tenant shall occupy and begin operations prior to any office tenant occupancy; (iv) The grocery tenant, if it is a party other than John Garcia (DBA JJ&F), shall be subject to the prior approval of the City and shall not be withheld unless the City reasonably finds that such proposed grocery tenant is not likely to be comparable in quality of products and service as JJ&F as it existed and operated on December 7, 2009; and (v) The grocery store space shall remain in continuous operation as a grocery store. Section 4(b)(7) defines "continuous" to include "brief closure for ordinary business purposes." E. On August 11, 2014, the City Council conducted a hearing to determine whether the proposed replacement grocer met the PC Ordinance requirements. At that hearing the Council continued the item and directed the Owner to provide further information on the tenant. Subsequently, Owner modified its proposal and on December 1, 2014, the City Council conducted a second hearing to consider whether the PC condition had been satisfied. At that hearing, the Council rejected applicant's replacement tenant but directed staff to come back with a permit extension. F. As a condition precedent to the City's approval of a replacement grocer tenant other than John Garcia (the "Replacement Tenant"), City is requiring that Owner record this Restrictive Covenant to ensure that a grocery store is located and continues to operate within College Terrace Centre as expressly set forth in the PC Ordinance. Owner wishes to record this Restrictive Covenant, subject to the terms and conditions set forth below. COVENANT NOW, THEREFORE, in consideration of the above recitals and the mutual covenants, terms, conditions, and restrictions contained herein, Owner hereby declares as follows: 1. Operation of a Grocery Store. During the term of this Restrictive Covenant, a grocery store with an area of at least 8,000 square feet shall be in continuous operation within College Terrace Centre for the useful life of the improvements specified in the PC Ordinance. The grocery store shall be a neighborhood service grocery store that provides all the typical grocery store products and services of a neighborhood serving store such that it shall not become a convenience mart facility. For purposes of this Restrictive Covenant, and consistent with the PC Ordinance, "continuous" operation includes any brief closure for ordinary business purposes. 2. Penalty. In the event that the Replacement Tenant, and any subsequent tenant thereafter, fully ceases business operations within College Terrace Centre and such cessation continues for a period of time in excess of six (6) consecutive months or the applicable grocery store tenant is not replaced with another grocery store tenant that begins business operations within such 6 -month period, the City shall have the right, but not the obligation, to levy a penalty against Owner, or any successor owner of the Property, as the case may be, in the amount of Two Thousand Dollars and 00/100s ($2,000.00) (the "Penalty") for each day after each 6 -month period that a grocery store is not in operation within College Terrace Centre in accordance with the terms of the PC Ordinance Notwithstanding the foregoing or anything to the contrary set forth in this Restrictive Covenant, the Penalty shall not be imposed and shall not become payable if City or any other third party (not including Owner) challenges the legality of the PC Ordinance or otherwise seeks to preclude, halt or interrupt the operation of a grocery store and 2 successfully obtains or secures a court order temporarily or permanently enjoining or otherwise prohibiting the operation of a grocery store within College Terrace Centre. 3. City Enforcement and Right to Inspect. Upon no less than two (2) business days' prior written notice, City shall have the right to inspect grocery store operations once per year for the sole purposes of confirming that (i) the Replacement Tenant, or any subsequent tenant, is providing products and services typical of a neighborhood serving store such that it shall not become a convenience mart facility and (ii) such products and services are comparable in quality to those of JJ&F as it existed and operated on December 7, 2009. This provision shall not preclude the City from conducting additional inspections based on a code enforcement complaints. 4. Reserved Rights. Owner reserves to itself, and to its members, managers, personal representatives, heirs, successors, and assigns, all rights accruing from its ownership of the Property, including the right to engage in all uses of the Property that are not expressly prohibited or limited by, and are consistent with, the PC Ordinance and this Restrictive Covenant, including the right to seek from the City modifications to, amendments to or termination of the PC Ordinance. 5. Term. This Restrictive Covenant shall be effective on the date on which it is recorded and shall continue in full force until the earlier to occur of (i) termination of this Restrictive Covenant by written agreement of Owner (or its successor or assign, as applicable) and City or (ii) the operative provisions of the PC Ordinance are no longer in full force or effect. 6. Notices. All notices required or permitted under this Restrictive Covenant shall be in writing and shall be deemed to have been duly given if personally delivered or sent by prepaid first class mail, addressed as follows: If to Owner: If to City: College Terrace Centre, LLC 388 Market Street, Suite 940 San Francisco, CA 94111 Attn: Brian Spiers City of Palo Alto City Hall, 8th Floor 250 Hamilton Avenue Palo Alto, CA 94301 Attn: City Attorney 7. Applicable Law. This Restrictive Covenant shall be construed and enforced in accordance with the laws of the State of California. 8. Governing Law. This Restrictive Covenant shall be governed by the laws of the State of California. 9. Successors and Assigns. The provisions of this Restrictive Covenant shall be binding upon and inure to the benefit of the successors and assigns of Owner and City, respectively. 3 10. Amendment. This Restrictive Covenant may only be amended pursuant to a written amendment, executed by Owner (or its successor or assign), consented to by City, and recorded in the Office of the Recorder of Santa Clara County, California. 11. Counterparts. This Restrictive Covenant may be executed in counterparts, each of which shall be deemed an original and all of which, taken together, shall be deemed one and the same instrument. [SIGNATURES ON FOLLOWING PAGE] 4 IN WITNESS WHEREOF, the Parties have entered into this Restrictive Covenant as of the date first set forth above. OWNER COLLEGE TERRACE CENTRE LLC a California Limited Liability Company By: Brian Spiers Development, LLC a California Limited Liability Company Its Manager By: Brian Spiers Its: Manager 5 CITY CITY OF PALO ALTO, a California municipal corporation By: City Manager Approved as to Form By: City Attorney STATE OF CALIFORNIA ) ) ss. COUNTY OF SANTA CLARA) On , before me, , a Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (SEAL) 6 EXHIBIT A LEGAL DESCRIPTION OF THE PROPERTY 7 Brian Spiers Development EXHIBIT 9 Original Lease COMMERCIAL LEASE THIS COMMERCIAL LEASE (this "Lease") is made as of AD1d$04f 2-'2013, by and between COLLEGE TERRACE CENTRE LLC, a California limited liability company (collectively, "Landlord"), and J & A FAMILY MARKETS, INC., a California corporation ("Tenant"). Landlord and Tenant are collectively referred to herein as the "Parties," and each individually a "Party." RECITALS WHEREAS, Landlord owns the city block on which the Premises is to be located (the "City Block"); and WHEREAS, a portion of the City Block was previously leased and operated as a grocery store for more than sixty (60) years; and WHEREAS, Landlord has submitted an application to the City of Palo Alto for a PC Zone for the City Block for the purposes of redeveloping the entire City Block (the "Application"); and WHEREAS, the Council of the City of Palo Alto granted the Application and on January 11, 2010 passed Ordinance No. 5069 creating the PC Zone for the City Block (the "Ordinance"); and WHEREAS, the name of the new development of the City Block is College Terrace Centre (the "Project"); and WHEREAS, the Application and the Ordinance include a plan to locate a grocery store (the "Grocery Store") with eight thousand (8,000) square feet of floor space on the Northwest corner of 2180 El Camino Real, Palo Alto, CA, in a building (the "Building") located on a portion of the City Block, along with an outdoor market of approximately two thousand (2,000) square feet immediately adjacent thereto and approximately six hundred (600) square feet of dry storage in the basement garage (collectively, the "Premises"); and WHEREAS, Tenant desires to lease the Premises from Landlord for the purpose of operating the Grocery Store upon completion of construction of the portion of the Project in which the Premises will be located; and WHEREAS, on the terms and conditions set forth in this Lease, Tenant hereby leases the Premises from Landlord upon the terms and conditions stated herein. AGREEMENT 1. AGREEMENT. Landlord hereby leases the Premises to Tenant, and Tenant hereby leases the Premises from Landlord, according to the terms of this Lease. 2. PREMISES. The Premises shall comprise eight thousand (8,000) square feet of interior space ("Interior Space"), approximately two thousand (2,000) square feet of outdoor 310492820.2 1 20 space ("Outdoor Space") immediately adjacent thereto and approximately six hundred (600) square feet of dry storage ("Storage Space") in the basement garage. 3. TERM. (a) Term. The "Term" of this Lease shall be for a period of 20 years commencing on the first day of the month following issuance of a Certificate of Occupancy by the City of Palo Alto for the building in which the Premises are located (the "Commencement Date") and expiring on the date that is 20 years later (the "Expiration Date"). (b) Tenant shall have the right to extend the Term for 10 years by delivery of written notice ("Extension Notice") to Landlord no less than six (6) months and no more than twelve (12) months before the existing Expiration Date. If Tenant timely delivers the Extension Notice, and provided that no default exists, or shall occur with the giving of notice or the passage of time or both, the Expiration Date shall so be extended and the Expiration Date shall be the Expiration Date as extended by the Extension Notice. (c) Possession. If Landlord fails to deliver possession of the Premises by the Commencement Date, Landlord shall not be liable for any damages resulting from that failure, nor shall that failure cause a termination of this Lease or Tenant's obligations under this Lease or extend the Term of this Lease except as otherwise provided in this Lease or agreed to in writing between Landlord and Tenant. 4. RENT. (a) Base Monthly Rent. Commencing on the first day of the first full calendar month following the Commencement Date (or on the Commencement Date if it is the first day of a calendar month) and continuing throughout the Term on the first day of each succeeding calendar month, Tenant shall pay Landlord base monthly rent in the amount as set forth below in this Subparagraph (the "Base Monthly Rent"). Base Monthly Rent shall be paid in advance in lawful money of the United States at the address specified for Landlord in Paragraph 27(0, below (or such other place as Landlord designates) without demand, abatement, counterclaim, deduction or offset. If the Commencement Date occurs on a day other than the first day of a calendar month, or if this Lease expires or sooner terminates on a day other than the last day of a calendar month, then the Base Monthly Rent for the fractional month shall be prorated on a daily basis. The Base Monthly Rent shall be increased during the Extension Term as set forth above. (i) The Base Monthly Rental shall be as set forth in Attachment A-2, attached hereto and incorporated herein by this reference. (ii) "Triple net" means that Tenant will be responsible for payment of property taxes, insurance and utilities with respect to the Premises. Utilities (with the possible exception of water, which Landlord may not be able to separately meter) will be separately metered. Tenant will maintain all of its equipment, including but not limited to the heating, ventilating, air conditioning ("HVAC") systems. (iii) Notwithstanding the provisions in Section (i), during the first, second and third months of the Term, Base Monthly Rent will be waived completely and, during 310492820.2 2 the fourth, fifth and sixth months of the Term, Base Monthly Rent will be reduced by fifty percent (50%). (iv) During the Term, the Base Monthly for each respective element of the Premises (i.e., the Indoor Space, the Outdoor Space and the Storage Space) will increase, every five (5) years, by the amount of increase, if any, in the San Francisco -San Jose -Oakland CPI Index over the previous five (5) -year period. (b) Prepaid Rent. Tenant shall, upon execution of this Lease, pay to Landlord the first month's rent as prepayment of rent for credit against the first payment of Base Monthly Rent due hereunder. (c) Additional Rent. In addition to all Base Monthly Rent, Tenant agrees to pay all Additional Rent as and when provided in this Lease. "Additional Rent" shall mean any and all monetary obligations of Tenant under this Lease other than the obligation to pay Base Monthly Rent. As Additional Rent hereunder, Tenant shall pay to Landlord and/or those third parties designated in this Lease to receive Additional Rent from Tenant, all charges and other amounts due under this Lease including, without limitation, Tenant's obligation to pay (1) certain costs and expenses as provided in Paragraphs 6(b), 8(a) and 24(f), below; (2) the cost of all utilities and services as provided in Paragraph 7, below; (3) all late charges and interest due Landlord under this Lease; and (4) any and all other charges due Landlord under this Lease. (d) Late Charges. Tenant hereby acknowledges that late payment to Landlord of any installment of Base Monthly Rent or any item of Additional Rent shall cause Landlord to incur costs not contemplated by this Lease, the exact amount of which will be extremely difficult to ascertain. Such costs include, but are not limited to, processing and accounting charges, and late charges which may be imposed on Landlord by the terms of any ground lease, underlying lease, mortgage or trust deed affecting the premises. Accordingly, if during the Term hereof any installment of Base Monthly Rent or item of Additional Rent is not received by Landlord within three (3) days of its due date, Tenant shall pay Landlord a late charge equal to five percent (5%) of such overdue amount. The parties agree that such late charge represents a fair and reasonable estimate of the costs Landlord will incur by reason of a late payment by Tenant. Acceptance of such late charge by Landlord shall in no event constitute a waiver by Landlord of Tenant's default with respect to such overdue amount, nor prevent Landlord from exercising any of its rights or remedies granted under this Lease or otherwise available to Landlord. (e) Interest on Past -Due Obligations. Any monetary payment due Landlord hereunder, other than late charges, not received by Landlord within ten (10) days following the date when due, shall bear interest from the date due at the lesser of (i) the "prime rate" (also know as the "reference rate") being charged by Bank of America at that time plus four percent (4%) per annum or (ii) the maximum, non -usurious rate allowed by law. (f) Guaranty. The obligations of Tenant under this Lease shall be guaranteed by JAMES SMAILEY, an individual ("Guarantor"), pursuant to a Guaranty in the form of Exhibit C (the "Guaranty"). 310492820.2 3 5. ACCEPTANCE OF THE PREMISES. (a) Acceptance; "AS IS"; Waivers. (i) Tenant acknowledges that it is familiar with the condition of the Premises and the Common Area and that it has had the opportunity to inspect the Premises and the Common Area to its complete satisfaction (including, but not limited to, the electrical systems, if any, security, applicable environmental conditions and requirements, applicable seismic and earthquake conditions and requirements, and compliance with applicable zoning and other Applicable Laws, defined below in Paragraph 10), and has either done so, or has voluntarily elected not to do so, thereby voluntarily and knowingly assuming the risk of adverse conditions or other defects in or about the Premises, the Common Area, and other portions of the Project. Subject to Landlord's obligations under Subparagraph (d) below, Tenant hereby accepts the Premises and Common Area in their "AS -IS" condition and "AS -IS" state of repair, inclusive of all faults and defects, whether known or unknown, latent or patent, or foreseeable or unforeseeable. Tenant hereby fully and forever waives, and Landlord hereby fully and forever disclaims, all warranties of whatever type or kind with respect to the Premises and the Common Area, whether express, implied or otherwise including, without limitation, those of fitness for a particular purpose, tenantability, habitability or use. (ii) Tenant hereby waives, releases and relinquishes any and all rights, claims and causes of action which Tenant may now have or may hereafter be entitled to assert against Landlord, whether known or unknown, (a) with respect to the environmental condition of the Premises and the soil, air and groundwater thereof, including, without limitation, any and all rights, claims and causes of action arising under or with respect to the California Health and Safety Code, Title 42 of the United States Code Section 9601 et, seq., the federal and state Occupational Health & Safety Acts, and common law tort theories, and/or (b) arising out of the use, generation, handling, exposure of others to, disposal or release of Hazardous Materials by Tenant or any Tenant Party (defined below) on, in, or about the Premises. With respect to the foregoing releases and waivers, Tenant expressly waives the benefits of Civil Code Section 1542, which reads as follows:: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor" and any similar statute or common law that would render a waiver of unknown claims unenforceable. 6. PROPERTY TAXES. (a) Definitions. (1) As used herein, the term "Real Property Taxes" shall include any form of real estate tax or assessment, general, special, ordinary or extraordinary, and any license fee, commercial rental tax, improvement bond or bonds, levy or tax (other than inheritance, personal income or estate taxes) imposed upon the Project or any part thereof by any authority having the direct or indirect power to tax, including any city, state or federal 310492820.2 4 lf� government, or any school, agricultural, sanitary, fire, street, drainage, or other improvement district thereof, levied against any legal or equitable interest of Landlord in the Project or any part thereof, Landlord's right to rent or other income therefrom, and/or Landlord's business of leasing the Premises. Real Property Taxes shall also include any tax, fee, levy, assessment or charge, or any increase therein, imposed by reason of events occurring, or changes in Applicable Laws taking effect, during the Term of this Lease, including but not limited to a change in the ownership of the Project or any part thereof, the execution of this Lease, or any modification, amendment or transfer thereof, and whether or not contemplated by the parties. (b) Payment of Real Property Taxes. Tenant shall pay the Real Property Taxes applicable to the Project. Notwithstanding the foregoing, Tenant shall pay, within fifteen (15) days after demand from Landlord, any part of the Real Property Taxes assessed against the Project by reason of Alterations or Trade Fixtures placed in or on the Premises by Tenant or at Tenant's request. (c) Joint Assessment. If the Project is not separately assessed, Real Property Taxes allocated to the Project shall be an equitable proportion of the Real Property Taxes for all of the land and improvements included within the tax parcel(s) assessed, such proportion to be determined by Landlord from the respective valuations assigned in the assessor's work sheets or such other information as may be reasonably available. Landlord's reasonable determination thereof, in good faith shall be conclusive. (d) Tenant's Property Taxes. Tenant shall pay prior to delinquency all taxes, charges and assessments assessed against or levied upon: all furniture and other personal property of Tenant within the Premises, all Alterations, and all Trade Fixtures. When possible, Tenant shall cause all such items to be assessed and billed separately from the real property of the Landlord. If any of such items shall be assessed with Landlord's real property, Tenant shall pay Landlord the taxes attributable to Tenant's property within ten (10) days after receipt of a written statement setting forth the taxes applicable to Tenant's property. 7. UTILITIES. Tenant shall pay, prior to delinquency, all charges for water, gas, electricity, light, heat, telephone, power, waste pickup, sewer services, and other utilities and communications services furnished to or otherwise used by Tenant on or about the Premises, whether or not the services are billed directly to Tenant, including, without limitation, any connection or hook-up fees and any penalties for discontinued or interrupted service. Tenant shall also procure, or cause to be procured, without cost to Landlord, any and all necessary permits, licenses, or other authorizations required for the lawful and proper installation and maintenance upon the Premises of wires, pipes, conduits, tubes, and other equipment and appliances for use in supplying any utilities or communications services to and upon the Premises. Landlord, upon request of Tenant, and at the sole expense and liability of Tenant, shall join with Tenant in any application reasonably required for obtaining or continuing any of the services. 8. INSURANCE. (a) Payment of Premium Increases. As used herein, the term "Landlord's Insurance Cost" is defined as the actual cost of the insurance required to be carried by Landlord 3104928202 5 pursuant to Subparagraphs (b) and (e), below, calculated on an annual basis. Tenant shall be responsible for all costs associated with such insurance obtained by Landlord hereunder; provided, however, in the event that Tenant's particular use of the Premises, or Alterations or Trade Fixtures causes such premiums to be increased, Tenant shall pay such increase of the premiums. (b) Property Insurance - Building. Landlord shall obtain and keep in force during the Term of this Lease a policy of policies in the name of Landlord, with loss payable to Landlord and to any Lender(s) (defined below) insuring against physical loss or damage to the Building. Such insurance shall be the amount required by any Lender(s), but in no event more than the commercially reasonable and available insurable value thereof if by reason of the unique nature or age of the Building such latter amount is less than full replacement cost. If the coverage is available and commercially appropriate, Landlord's policy or policies of casualty insurance shall insure against all risks of direct physical loss or damage (except the perils of flood and/or earthquake, unless required by Lender(s) or Landlord), including coverage for any additional costs resulting from debris removal and reasonable amounts of coverage for the enforcement of any ordinance or law regulating the reconstruction or replacement of any undamaged sections or the Building required to be demolished or removed by reason of the enforcement of any building zoning or safety or land use laws as the result of a covered loss, but not including plate glass insurance. Said policy or policies of casualty insurance shall also contain an agreed valuation provision in lieu of any co-insurance clause and inflation guard protection causing an increase in the annual property insurance coverage amount by a factor of not less than the adjusted U.S. Department of Labor Consumer Price Index for all Urban Consumers for the city nearest to where the Premises are located. All of Tenant's furniture and other personal property, all Alterations, and all Trade Fixtures shall be insured by Tenant pursuant to Subparagraph (c), below. (c) Property Insurance - Tenant. Subject to the requirements of Subparagraph (f), below, Tenant at its sole cost shall either by separate policy or, at Landlord's option, by endorsement to a policy already carried, maintain insurance coverage on all of Tenant's furniture and other personal property, Trade Fixtures and Alterations in or on the Premises similar in coverage to that carried by Landlord as the insuring party under Subparagraph (b), above. Such insurance shall be full replacement cost coverage with a deductible not to exceed One Thousand Dollars ($1,000) per occurrence. The proceeds from any such insurance shall be used by Tenant solely for the replacement of furniture and other personal property located on the Premises and for the repair and restoration of Trade Fixtures and Alterations. Upon request from Landlord, Tenant shall provide Landlord with written evidence that such insurance is in full force and effect. (d) Liability Insurance - Tenant. Tenant shall obtain and keep in force during the Term of this Lease a commercial general liability policy of insurance protecting Tenant, Landlord and any Lender(s) whose names have been provided to Tenant in writing (as additional insureds) from claims or damages for bodily injury (including death), personal injury, and property damage based upon, involving or arising out of (a) any occurrence on the Premises, (b) any act or omission of Tenant, any subtenant of Tenant, or any of their respective invitees, agents, servants, contractors, or employees anywhere on the Premises, the Common Area, or Project, (c) the business operated by Tenant and by any subtenant of Tenant on the Premises, or 310492820.2 6 (d) the contractual liability of Tenant to Landlord pursuant to the indemnification provisions of Paragraphs 10(d)(7) and 20(a), below (including deletion of the contractual liability exclusion for personal injury). Such insurance shall be on an occurrence basis providing single limit coverage in an amount not less than Three Million Dollars ($3,000,000) per occurrence with an "Additional Insured -Mangers or Landlords of Premises" endorsement and contain the "Amendment of the Pollution Exclusion" endorsement for damage caused by heat, smoke or fumes from a hostile fire. The policy shall not contain any intra-insured exclusions as between insured persons or organizations, but shall include coverage for liability assumed under this Lease as an "insured contract" for the performance of Tenant's indemnity obligations under this Lease. The limits of said insurance required by this Lease or as carried by Tenant shall not, however, limit the liability of Tenant nor relieve Tenant of any obligation under this Lease. All insurance to be carried by Tenant shall be primary to and not contributory with any similar insurance carried by Landlord, whose insurance shall be considered excess insurance only. The liability policy shall contain an endorsement (ISO Form 20-26) naming Landlord, its members, and shareholders (as applicable) and any Lender(s) as additional insureds, and shall provide that the insurance carrier shall have the duty to defend and/or settle any legal proceeding filed against Landlord seeking damages based upon personal injury, bodily injury or property damage liability even if any of the allegations of such legal proceedings are groundless, false or fraudulent. In addition, Tenant's liability insurance policies shall be endorsed as needed to provide cross liability coverage for Tenant, Landlord and any lender of Landlord and shall provide for severability of interest. (e) Liability Insurance - Landlord. Landlord shall also maintain liability insurance similar to the liability insurance described in Subparagraph (d), above, in addition to and not in lieu of, the insurance required to be maintained by Tenant. Tenant shall not be named as an additional insured therein. (f) Worker's Compensation - Tenant. Tenant shall carry and maintain during the entire Term hereof, at Tenant's sole cost and expense, a policy or policies of worker's compensation insurance as required by Applicable Laws. Such policy or policies shall contain waivers of subrogation in favor of Landlord. (g) Business Income and Extra Expense Coverage. Tenant shall carry and maintain during the entire Term hereof, at Tenant's sole cost and expense, keep in full force and effect, a policy or policies of business income/business interruption insurance and extra expense coverage (collectively, "Business Income Insurance") with coverage that will reimburse Tenant for all direct and indirect loss of income and changes and costs incurred arising out of all named perils insured against by Tenant's policies of property insurance, including prevention of, or denial of use of or access to, all or part of the Premises or Building as a result of those named perils. The Business Income Insurance coverage must provide coverage for no less than twelve (12) months of the loss of income, charges and costs contemplated under this Lease. (h) Other Matters. All insurance required of Tenant under this Paragraph 8 and all renewals of it shall be issued by companies authorized to transact business in the State of California, and rated at least A, VIII, or such other rating as may be required by Lender(s), as set forth in the most current issue of Best's Insurance Guide. All insurance policies shall be subject 310492820.2 7 to approval by Landlord and any Lender(s) as to form and substance; shall expressly provide that the policies will not be canceled or altered without thirty (30) days' prior written notice to Landlord and any Lender(s), in the case of "all-risk" coverage insurance, and to Landlord, in the case of general liability insurance; and shall, to the extent obtainable, provide that no act or omission of Tenant which would otherwise result in forfeiture or reduction of the insurance will affect or limit the obligation of the insurance company to pay the amount of any loss sustained. (i) Additional Insureds. All policies of liability insurance that Tenant is obligated to maintain according to this Lease (other than any policy of workmen's compensation insurance) shall name Landlord and such other persons as Landlord specifies from time to time as additional insureds (including any Lender(s))_ Original or copies of original policies (together with copies of the endorsements naming Landlord, and any others specified by Landlord, as additional insureds) and evidence of the payment of all premiums of such policies shall be delivered to Landlord prior to Tenant's occupancy of the Premises and from time to time at least thirty (30) days prior to the expiration of the term of each policy. All public liability, property damage liability, and casualty policies maintained by Tenant shall be written as primary policies, not contributing with and not in excess of coverage that Landlord may carry. No insurance required to be maintained by Tenant under this Paragraph 8 shall be subject to any deductible without Landlord's prior written consent. (j) Waiver of Subrogation. In addition to the waiver of subrogation contained in Paragraph 8(f), above, Tenant hereby waives its rights and the subrogation rights of its insurer against Landlord and any other tenants of the Project, as well as their respective members, officers, employees, agents, authorized representatives and invitees, with respect to any claims including, but not limited to, claims for injury to any persons, and/or damage to the Premises and/or any furniture, personal property, Trade Fixtures, and/or Alterations in or to the Premises, which are caused by or result from (a) risks or damages required to be insured against by Tenant under a policy of property insurance under this Lease, or (b) risks and damages which are in fact insured against by one or more property insurance policies maintained by Tenant from time to time. It is the intent of Landlord that with respect to any loss from a named peril required to be covered under a policy of property insurance, Tenant will look solely to its insurance companies for recovery. Tenant shall obtain for Landlord from Tenant's insurers under each policy required of Tenant under this Lease a waiver of all rights of subrogation which such insurers of Tenant might otherwise have against Landlord (and such waiver may be included in a certificate of insurance from the insurer). (k) Adequacy of Insurance. Landlord makes no representation or warranty to Tenant that the amount of insurance to be carried by Tenant under the terms of this Lease is adequate to fully protect Tenant's interests. Tenant acknowledges that Landlord shall not, by the fact of approving, disapproving, waiving, accepting, or obtaining any insurance, insure any liability for or with respect to the amount of insurance carried, the form or legal sufficiency of such insurance, the solvency of any insurance companies or the payment or defense of any lawsuit in connection with such insurance coverage, and Tenant hereby expressly assumes full responsibility therefor and all liability, if any, with respect thereto. 310492820.2 8 9. USE. (a) Permitted Use. The Premises shall be used for a full service grocery store, storage areas and office and administrative purposes and for no other use or purpose. (b) Restrictions on Use. Tenant shall not do or permit any act that could: (1) cause any structural damage to the Premises or any other part of the Project; (2) cause any other damage to any part of the Premises, except to the extent reasonably necessary for the installation of trade fixtures, equipment, machinery, or the construction of Alterations approved in writing in advance by Landlord, provided such damage is promptly repaired by Tenant; (3) materially damage the Premises or any other part of the Project; (4) impair the efficient operation of the Premises' or Building's heating, ventilation, or air conditioning systems, if any; (5) overload or otherwise place an undue strain on the Premises' or Building's electrical and mechanical systems; or (6) damage, overload, or corrode the Premises' or Building's sanitary sewer system. (c) Further Restrictions. (1) Tenant shall not install or attach anything in the Premises in excess of the load limits established by Landlord for the Premises. Tenant shall contain and dispose of all dust, fumes, or waste products generated by Tenant's use of the Premises so as to avoid: (i) fire or health hazards, (ii) damage to the Project, or (iii) any violation of Applicable Laws. (2) Except as may be approved by Landlord in advance in writing, Tenant shall not change the exterior of the Building or install any equipment, machinery, or antennas on or make any penetrations of, the exterior or roof of the Building. Tenant shall not commit, or suffer to be committed, any waste or nuisance in or about the Premises and shall keep the Premises or Common Area in a neat, clean, attractive and orderly condition, free of any waste or nuisances. Tenant shall not conduct on any part of the Premises or Project, any sale of any kind, including but not limited to any public or private auction, going out -of -business sale, distress sale, or other liquidation sale. 10. USE RESTRICTIONS; COMPLIANCE; ENVIRONMENTAL MATTERS. (a) Restrictions on Use. Tenant shall not use or occupy, or permit any part of the Premises to be used or occupied: (1) in violation of any federal, state or local law, ordinance, order, rule, regulation, permit, license, certificate of occupancy, or other governmental requirement now or hereafter in effect (collectively, "Applicable Laws") or any covenants, conditions, or restrictions affecting the Project or any part thereof (collectively, "CC&Rs"); (2) for any disreputable business or purpose; or (3) in any manner or for any business or purpose that creates risks of fire or other hazards, or that would in any way violate, suspend, void, or increase the rate of fire or liability or any other insurance of any kind at any time carried by Landlord upon all or any part of the Premises, the Building, or its contents. (b) Compliance. Tenant shall comply with all CC&Rs and all Applicable Laws relating to the use, condition, or occupancy of the Premises or the conduct of Tenant's business (including workplace safety and the employment of Tenant's employers), and all rules, 310492820.2 9 orders, regulations, and requirements of the board of fire underwriters or insurance service office, or any other similar body, having jurisdiction over the Project or any part thereof. (c) Legally Required Alterations. Tenant shall pay the entire expense of any and all alterations as may be needed to conform the Premises to all Applicable Laws (including without limitation the Americans with Disabilities Act and Title 24 of the Code of California Regulations) governing the use or occupancy of the Premises including, without limitation, any and all alterations to the Premises that may be required under any Applicable Laws relating to accessibility or usability of, to, or within the Premises by disabled persons. (d) Tenant's Obligations with Respect to Environmental Requirements. (1) Without limiting Tenant's obligations under Subparagraphs (a) and (b), above, Tenant shall comply with and shall cause the Premises to comply with, all Applicable Laws relating to (i) human health or safety, (ii) workplace safety, (iii) industrial hygiene, or (iv) the use, generation, handling, manufacture, installation, maintenance, disposal, transportation, storage, spill, or release of Hazardous Materials by Tenant or any Tenant Party, all as amended and modified from time to time (collectively, "Environmental Requirements"). The foregoing obligation shall not negate Landlord's obligation under Paragraph 10(e), below. Tenant shall cause all governmental permits and other approvals relating to the use or operation of the Premises by Tenant required by applicable Environmental Requirements or any other Applicable Laws to at all times remain in effect, and Tenant shall at all times comply with such permits and other approvals. "Reportable Use" shall mean (i) the installation or use of any above or below ground storage tank, (ii) the release, generation, possession, storage, handling, use, transportation, or disposal of any Hazardous Materials that requires a permit from, or with respect to which a report, notice, registration or business plan is required to be filed with, any governmental authority, or (iii) the presence in, on or about the Premises of any Hazardous Materials with respect to which any Environmental Requirements or other Applicable Laws require that a notice be given to persons entering or occupying the Premises, the Project, or neighboring properties. (2) Tenant shall not, nor allow any Tenant Party to, release, use, generate, manufacture, store, transport, or dispose of any Hazardous Materials on, under, or about the Premises. Notwithstanding the foregoing, Tenant may use on the Premises, without Landlord's prior consent, but only upon written notice to Landlord and in compliance with all Environmental Requirements and other Applicable Laws, any ordinary and customary materials reasonably required for use by Tenant in the normal course of the permitted use described in Paragraph 9(a), above, and further, only so long as such use is not a Reportable Use and does not expose the Premises or any other portion of the Project or neighboring properties to any meaningful risk of contamination or damage or expose Landlord to any liability therefor. In addition, Landlord may (but without any obligation to do so) condition its consent to any Reportable Use of any Hazardous Materials by Tenant upon Tenant's giving Landlord such additional assurances as Landlord deems necessary to protect itself, the public, the Premises, the Project, and the environment against damage, contamination or injury and/or liability therefor, including but not limited to the installation (and, at Landlord's option, removal on or before Lease expiration or earlier termination) of reasonably necessary protective modifications to the Premises (such as concrete encasement) and/or the deposit of an additional security deposit. 310492820.2 10 (3) If Tenant knows, or has reasonable cause to believe, that any Hazardous Materials have been introduced upon the Premises or any other portion of the Project by Tenant or a Tenant Party (other than as may have been previously consented to by Landlord), Tenant shall immediately give Landlord written notice thereof, together with a copy of any statement, report, notice, registration, application, permit, business plan, license, claim, action, or proceeding, given to, or received from, any governmental authority or private party concerning such Hazardous Materials including, but not limited to, all such documents as may be involved in any Reportable Use involving the Premises. Landlord's receipt of any notice, documents or other information from Tenant as provided above in this Subparagraph shall not create any obligation on the part of Landlord to respond in any way to such notice, documents or information or the conditions described therein. (4) Tenant shall immediately notify Landlord and provide copies upon receipt of all written complaints, claims, citations, demands, inquiries, reports, or notices relating to the condition of the Premises or compliance with Environmental Requirements (provided, however, that Landlord's receipt of any of the foregoing shall in no way create or impose any duty or obligation upon Landlord to respond thereto). Tenant shall promptly cure and have dismissed with prejudice any of those actions and proceedings to the satisfaction of Landlord. (5) Landlord, its agents, employees, contractors and designated representatives, and the holders of any mortgages, deeds of trust or ground leases on the Premises ("Lender(s)") shall have the right, but not the obligation, to enter the Premises at any time in the case of an emergency, and otherwise at reasonable times, for the purpose of inspecting the condition of the Premises and for verifying compliance by Tenant with this Lease (including compliance with Environmental Requirements) and Landlord shall be entitled to employ experts and/or consultants in connection therewith to advise Landlord with respect to Tenant's activities, including but not limited to Tenant's installation, operation, use, monitoring, maintenance, or removal of any Hazardous Materials on or from the Premises. The costs and expenses of any such inspections shall be paid by the party requesting same, unless a default or breach of this Lease by Tenant or a violation of Environmental Requirements or a contamination, caused or materially contributed to by Tenant or a Tenant Party, is found to exist or to be imminent, or unless the inspection is requested or ordered by a governmental authority as the result of any such existing or imminent violation or contamination, and in each such case, Tenant shall upon demand reimburse Landlord, or Landlord's Lender(s), as the case may be, for the costs and expenses of such inspections. (6) If Tenant breaches any of its warranties, representations, and covenants under this Paragraph 10, Landlord may cause the removal from the Premises (or other cleanup acceptable to Landlord) of any Hazardous Materials which relate to or are the subject of such breach. The costs of Hazardous Materials removal, remediation, and other response (including, without limitation, transportation and storage costs) shall be deemed covered by the indemnity in Subparagraph (d)(7), below, whether or not a court has ordered the cleanup, and those costs shall become due and payable on demand by Landlord. Tenant shall give Landlord, its agents, contractors, and employees access to the Premises to remove or otherwise clean up any Hazardous Materials. Landlord, however, has no obligation whatsoever 3104928202 1 1. to remove, clean up, or otherwise respond to any Hazardous Materials, and this Lease shall not be construed as creating any such obligation. (7) Tenant agrees to indemnify, defend (with counsel reasonably acceptable to Landlord and at Tenant's sole cost), and hold Landlord and Landlord's members, affiliates, employees, agents, successors and assigns free and harmless from and against all losses, liabilities, obligations, penalties, claims, litigation, orders, demands, defenses, costs, judgments, suits, proceedings, damages (including consequential damages), disbursements, losses, or expenses of any kind (including attorneys' and experts' fees and expenses and fees and expenses incurred in investigating, defending, or prosecuting any litigation, claim, or proceeding) that may at any time be imposed upon, incurred by, or asserted or awarded against Landlord or any of them in connection with or arising from or out of a. any Hazardous Materials (whether or not the use thereof has been consented to by Landlord) in, under, or affecting all or any part of the Premises or Project, the presence of which is attributable, in whole or in part, to any act or omission of Tenant or any of its officers, directors, members, employees, agents, contractors, visitors, customers, shippers, suppliers, invitees, licensees, subtenants, or other persons entering the Premises under the express or implied invitation of Tenant (collectively, "Tenant Parties"); b. any misrepresentation, inaccuracy, or breach of any warranty, covenant, or agreement contained or referred to in this Paragraph 10; c. any violation or claim of violation by Tenant or any Tenant Party of any Environmental Requirement; or d. the imposition of any lien for the recovery of any costs for environmental cleanup or other response costs relating to the release or threatened release of Hazardous Materials by Tenant or any Tenant Party. This indemnification is the personal obligation of Tenant and shall survive the expiration or sooner termination of this Lease. Tenant, its successors, and assigns waive, release, and agree not to make any claim or bring any cost recovery action against Landlord under the Comprehensive Environmental Response, Compensation and Liability Act, as amended and reauthorized to date (42 U.S.C. § 9601 et seq.), or any state equivalent or any similar law now existing or enacted after this date. To the extent that Landlord is strictly liable under any such law, regulation, ordinance, or requirement, Tenant's obligation to Landlord under this indemnity shall also be without regard to fault on the part of Tenant with respect to the violation or condition that results in liability to Landlord. (8) "Hazardous Materials" means any product, substance, chemical, material or waste whose presence, nature, quantity and/or intensity or existence, use, manufacture, disposal, transportation, spill, release, or effect, either by itself or in combination with other materials, is either (i) potentially injurious or harmful to the public health, safety or welfare, the Premises, any other portion of the Project, or the environment (including, without limitation, any soil, air, or groundwater on, in, under, above or about the Project); (ii) regulated or monitored by any governmental authority; or (iii) a basis for potential liability of Landlord to 310492820.2 12 any governmental agency, private party, or other third party under any applicable statute, regulation, code, ordinance or common law theory. Without limiting the scope or generality of the forgoing, Hazardous Materials shall include, but not be limited to, petroleum hydrocarbons, gasoline, crude oil or any products or by products thereof. 11. ASSIGNMENT AND SUBLETTING (a) Restrictions on Transfer. The terms and conditions in this Lease were offered solely to Tenant as an inducement to lease the Premises. Landlord would not necessarily lease the Premises to another Tenant on such favorable terms and conditions, it being understood that Landlord is specifically relying on the identity of Tenant in agreeing to the terms and conditions in this Lease. Tenant acknowledges that the lease terms and conditions are for Tenant's benefit only so long as Tenant operates the business allowed by this Lease, and that Tenant is not entering into this Lease for any other purpose, such as the recognition of a leasehold value that it could later sell. It is understood and agreed that any value, upon the early termination of Tenant's occupancy of the Premises, shall revert to Landlord, either by termination of this Lease or as a condition of assignment or subletting, as provided in this Paragraph 11. But for the previously stated reasons, Landlord would not enter into this Lease. Therefore, without the express prior written consent of Landlord, which may withheld for any reason whatsoever, Tenant shall not voluntarily, involuntarily, or by operation of law: (I) sublet all or any part of the Premises or allow it to be sublet, occupied, or used by any person or entity other than Tenant; (2) assign Tenant's interest in this Lease; (3) mortgage or encumber this Lease, or otherwise use this Lease as a security device in any manner; or (4) amend or modify an assignment, sublease, or other transfer that has not been previously approved by Landlord. Any action taken or proposed to be taken pursuant to clauses (1) through (4) in the preceding paragraph shall be collectively referred to herein as an "Assignment", and any third party succeeding to all or a portion of Tenant's interest under this Lease or proposed to succeed to all or a portion of Tenant's interest under this Lease shall be referred to as an "assignee". If Tenant is a partnership, any withdrawal or substitution, whether voluntary, involuntary, or by operation of law, and whether occurring at one time or over a period of time, of any partner owning twenty-five percent (25%) or more, cumulatively, of any interest in the capital or profits of the partnership or the dissolution of the partnership, shall be deemed an assignment. If Tenant is a corporation, any dissolution, merger, consolidation, or other reorganization of Tenant, any sale or transfer or cumulative sales or transfers of the capital stock of Tenant in excess of twenty- five percent (25%) or any sale or cumulative sales of fifty-one percent (51%) or more of the value of Tenant's assets shall be deemed an assignment. However, the previous provisions shall not apply to corporations, the capital stock of which is publicly traded. (b) Payment of Landlord's Costs. Tenant shall pay to Landlord, as Additional Rent, all reasonable costs and attorney fees incurred by Landlord in connection with the evaluation, processing, or documentation of any requested assignment, whether or not Landlord's consent is granted. Landlord's reasonable costs shall include the cost of any review or investigation performed by Landlord or consultant acting on behalf of Landlord of: (1) any Hazardous Materials used, stored, released, or disposed of by the proposed assignee, or (2) violations of any environmental law by Tenant or the proposed assignee. 3104)2820.2 13 (c) Effectiveness of Assignment. Any Assignment approved by Landlord shall not be effective until Tenant has delivered to Landlord an executed counterpart of the document evidencing the Assignment that: (1) is in form and substance reasonably satisfactory to Landlord, and (2) contains the same terms and conditions as stated in Tenant's notice given to Landlord pursuant to Subparagraph (e), below. (d) Assignment Voidable. Any attempted Assignment without Landlord's express prior written consent shall constitute an event of default hereunder and shall be voidable at Landlord's sole option. Landlord's consent to any one assignment shall not constitute a waiver of the provision of this Paragraph 11 as to any subsequent assignment or a consent to any subsequent assignment. No Assignment, even with the consent of Landlord, shall relieve Tenant of the obligation to pay the rent and to perform all of the other obligations to be performed by Tenant. The acceptance of rent by Landlord from any person shall not be deemed to be a waiver by Landlord of any provision of this Lease, nor to be a consent to any Assignment. (e) Notice. of Proposed Assignment. At least sixty (60) days before a proposed Assignment is to become effective, Tenant shall give Landlord written notice of the proposed terms of the Assignment and request Landlord's approval, which notice shall include the following: (1) the name and legal composition of the assignee; (2) a current financial statement of the assignee, financial statements of the assignee covering the preceding three (3) years, if they exist, and, if available, an audited financial statement of the assignee for a period ending not more than one (1) year prior to the proposed effective date of the assignment, all of which are to be prepared in accordance with generally accepted accounting principles; (3) the nature of the assignee's business to be carried on in the Premises;(4) a statement of all consideration to be given on account of the assignment; and (5) any other information that Landlord reasonably requests. (f) Withholding of Consent. Landlord's consent to any requested Assignment may be withheld for any reason whatsoever. (g) Guarantor's Consent. If Tenant's obligations under this Lease have been guaranteed by third parties, any assignment of Tenant's interest under this Lease and Landlord's consent shall not be effective unless those guarantors give written consent to the assignment. (h) Order. If an event of default occurs and is continuing, Landlord may proceed directly against Tenant, any assignee, any guarantors, or any other party responsible for the performance of this Lease, without first exhausting Landlord's remedies against any other party responsible to Landlord, or resorting to any security held by Landlord. (i) Attornment. If an event of default occurs and is continuing, Landlord may require any subtenant to attorn to Landlord, in which event Landlord shall undertake the obligations of Tenant under any sublease, provided, however, that Landlord shall not be liable for any amounts paid by the subtenant to Tenant or for any defaults by Tenant or prior obligations of Tenant under the sublease. (j) Binding. Every provision of this Paragraph 11 shall be binding on any assignee as if that assignee were the Tenant under this Lease. 310492820.2 14 (k) No Further Assignment or Subletting. No assignee shall further assign or sublet the Premises without Landlord's prior written consent. 12. SIGNS. Landlord reserves the exclusive right to control the architectural and aesthetic appearance of the exterior side -walls and roof of the PremisesandBuilding. Tenant will not place or permit to be placed in or upon the exterior side walls, windows or roof of the Building or within the Common Area any signs, advertisements or notices, or alter its architecture or appearance without first obtaining the express prior written consent of Landlord. Landlord shall have the right to post or place such signs, notices or displays as Landlord reasonably deems necessary or appropriate upon the roof, the exterior of the Building, and/or within the Common Area. Landlord shall have the right to remove any of Tenant's signs, advertisements or notices to which Landlord objects, at Tenant's sole expense. Landlord shall be entitled to all revenues from such advertising signs. 13. REPAIRS AND MAINTENANCE. (a) By Tenant. Except as otherwise provided in Paragraphs 13(b), 16, 17 and 24(f) hereof, Tenant shall, at its sole expense, maintain the Premises and make repairs, restorations, and replacements to the Premises, including, without limitation, the heating, ventilating, air conditioning, mechanical, electrical, sewage, and plumbing systems, interior walls, floors, carpets, window coverings, ceilings, roof, windows, plate glass, and doors, and the fixtures and appurtenances to the Premises, as and when needed to preserve them in good working order and condition and regardless of whether the repairs, restorations, and replacements are structural or non-structural, ordinary or extraordinary, foreseeable or unforeseeable, capital or noncapital, or the fault or not the fault of Tenant or any Tenant Party. Without limitation of the scope or generality of the foregoing, at all times during the Term Tenant shall maintain a contract for the regular maintenance and servicing of the HVAC syestems serving the Premises, and such contract shall be with a duly licensed HVAC service and repair specialist acceptable to Landlord. All repairs, restorations, and replacements shall be in quality and class equal to the original work or installations. If Tenant fails to make repairs, restorations, or replacements within fifteen (15) days after written demand by Landlord, Landlord may make them at the expense of Tenant and the expense shall be collectible as Additional Rent to be paid by Tenant within fifteen (15) days after delivery of a statement for the expense. (b) By Landlord. Subject to the other provisions of this Lease, Landlord shall keep in good order and repair the exterior walls of the Building. Notwithstanding the foregoing, Landlord shall not be obligated to paint the exterior or interior surfaces of exterior walls or doors (including any roll up doors), nor shall Landlord be obligated to maintain, repair or replace any windows, doors (including any roll up doors), or plate glass of the Premises. Notwithstanding anything to the contrary herein, Landlord shall not be obligated to perform any maintenance, repairs or replacements in response to or arising out of damage caused by the act or omission of Tenant or any Tenant Party, which repairs or replacements shall be the sole obligation of Tenant. Tenant expressly waives the benefit of any statute now or hereafter in effect which would otherwise afford Tenant the right to make repairs at Landlord's failure to keep the Building, Common Area, or any other portion of the Project in good order, condition and repair. 3 U)492820.2 15 14. ALTERATIONS. (a) Alterations. Tenant shall not make, or suffer to be made, any alterations, additions, renovations or improvements (collectively "Alterations") to the Premises without Landlord's prior written consent; however, Landlord's prior written consent shall not be necessary for any Alteration which: (1) costs less than one thousand dollars ($1,000.00) including labor and materials; (2) does not change the general character of the Premises, or reduce the fair market value of the Premises below its fair market value prior to the alteration, addition, or improvement; (3) is made with due diligence, in a good and workmanlike manner, and in compliance with the laws, ordinances, orders, rules, regulations, certificates of occupancy, or other governmental requirements described in Paragraph 9, and above; (4) is promptly and fully paid for by Tenant. (b) Architect's Supervision; Compliance with Laws; Ownership; Removal. All Alterations (other than those costing less than One Thousand Dollars ($1,000.00)) shall be made by Tenant under the supervision of an architect and/or engineer hired by Tenant and reasonably satisfactory to Landlord and in accordance with plans and specifications and cost estimates approved by Landlord. In addition, Landlord may designate a supervising architect and/or engineer to assure compliance with the provisions of this paragraph, and if it does, Tenant shall pay as Additional Rent the supervising architect's and/or engineer's charges. All Alterations shall be performed solely at Tenant's expense, in compliance with all Applicable Laws, and shall be performed only by properly licensed contractors or workers. Subject to Tenant's rights under Paragraph 15, below, all Alterations and Trade Fixtures, whether temporary or permanent in character, made in or on the Premises by Tenant shall immediately become Landlord's property, and upon the expiration or sooner termination of this Lease shall remain on the Premises without compensation to Tenant; provided, however, that by written notice given to Tenant at any time prior to the expiration or sooner termination of this Lease, Landlord may require that any Alterations and/or Trade Fixtures made in or on the Premises be removed by Tenant. In such event, Tenant shall remove the designated Alterations and/or Trade fixtures at Tenant's sole cost and shall restore the Premises to the condition in which it was in before the Alterations and Trade fixtures were installed, reasonable wear and tear excepted. (c) Mechanic's Liens. Tenant shall also pay and discharge any and all mechanics' liens placed against the Premises and/or the Project resulting from the actions of Tenant or any of Tenant's employees or agents (including, without limitation, any work performed at the request of Tenant or any of its employees or agents). If Tenant wishes in good faith to contest the validity of any mechanic's lien claim placed against the Premises and/or project for any reason whatsoever, Tenant shall forth -with either pay the disputed amount or shall, at Tenant's sole cost and expense and with the prior written consent of the Landlord, obtain a bond conforming with the requirements of California Civil Code Section 3143 so as to release the lien against the Premises and/or any other portion of the Project. 15. END OF TERM. Upon the expiration or sooner termination of this Lease, Tenant shall surrender the Premises clean and free of debris and in good operating order and condition, ordinary wear and tear excepted. If Tenant is not then in default, Tenant may remove from the Premises any trade fixtures, machinery and equipment owned by Tenant which can be removed without doing material damage to the Premises (herein collectively called "Trade Fixtures") 31049282(2 16 and any movable furniture owned by and placed in the Premises by Tenant, whether or not such Trade Fixtures are fastened to the Premises. Tenant shall not remove any Trade Fixtures without Landlord's prior written consent if the Trade Fixtures are used in the operation of the Premises or if the removal of the Trade Fixtures will impair the structure of the Premises. Whether or not Tenant is then in default, Tenant shall remove all Alterations, Trade Fixtures, and furniture that Landlord has requested be removed in accordance with Paragraph 14, above, and shall, under all circumstances, fully repair any damage occasioned by the removal of any Alterations, Trade Fixtures, or furniture. Any Alterations, Trade Fixtures, or furniture not so removed shall be conclusively deemed to have been abandoned by Tenant and may be appropriated, sold, stored, destroyed, or otherwise disposed of by Landlord without notice to Tenant or any other person and without obligation to account for them. Tenant shall pay Landlord all expenses incurred in connection with Landlord's disposition of such property, including without limitation the cost of repairing any damage to Premises caused by removal of such property. Tenant's obligation to observe and perform covenants set forth in this Paragraph 15 shall survive the expiration or sooner termination of this Lease. 16. DAMAGE AND DESTRUCTION. (a) Definitions. (1) "Premises Partial Damage" means damage or destruction to the Premises, other than any furniture, inventory, Alterations, Trade Fixtures or other items owned, installed, leased or paid for by Tenant (collectively, "Excluded Items"), the repair cost of which damage or destruction is less than fifty percent (50%) of the then Replacement Cost (as defined below) of the Premises, excluding all Excluded Items, immediately prior to such damage or destruction. (2) "Premises Total Destruction" means damage or destruction to the Premises, other than Excluded Items, the repair cost of which damage or destruction is fifty percent (50%) or more of the then Replacement Cost of the Premises (excluding any Excluded Items) immediately prior to such damage or destruction. In addition, damage or destruction to the Building, other than Excluded Items of any tenants of the Building, the cost of which damage or destruction is fifty percent (50%) or more of the then Replacement Cost (excluding Excluded Items of any tenants of the Building) of the Building shall, at the option of Landlord, be deemed to be Premises Total Destruction. (3) "Insured Loss" shall mean damage or destruction to the Premises, other than Excluded Items, which was caused by an event required to be covered by the casualty insurance described in Paragraph 8(b), above, irrespective of any deductible amounts or coverage limits involved. (4) "Replacement Cost" shall mean the cost to repair or rebuild the improvements owned by Landlord at the time of the occurrence to their condition existing immediately prior thereto, including demolition, debris removal and upgrading required by the operation of applicable building codes, ordinances or laws, and without deduction for depreciation. 310492820.2 17 (5) Premises Partial Damage - Insured Loss. If Premises Partial Damage that is an Insured Loss occurs, then Landlord shall, at Landlord's expense, repair such damage (but not Excluded Items) as soon as reasonably possible and this Lease shall continue in full force and effect. In the event, however, that there is a shortage of insurance proceeds and such shortage is due to the fact that, by reason of the unique nature of the improvements in the Premises, full replacement cost insurance coverage was not commercially reasonable and available, Landlord shall have no obligation to pay for the shortage in insurance proceeds or to fully restore the unique aspects of the Premises unless Tenant provides Landlord with the funds to cover same or adequate assurance thereof, within ten (10) days following receipt of written notice of such shortage and request therefor. If Landlord receives said funds or adequate assurance thereof within said ten (10) day period, Landlord shall complete them as soon as reasonably possible and this Lease shall remain in full force an effect. If Landlord does not receive such funds or assurance within said period, Landlord may nevertheless elect by written notice to Tenant within ten (10) days thereafter to make such restoration and repair as is commercially reasonable with Landlord paying any shortage in proceeds, in which case this Lease shall remain in full force and effect. If Landlord does not receive such funds or assurance within such ten (10) day period, and if Landlord does not so elect to restore and repair, then this Lease shall terminate sixty (60) days following the occurrence of the damage or destruction. Unless otherwise agreed, Tenant shall in no event have any right to reimbursement from Landlord for any funds contributed by Tenant to repair any such damage or destruction. Premises Partial Damage due to flood or earthquake shall be subject to Paragraph 16(c) rather than this Paragraph 16(b), notwithstanding that there may be some insurance coverage, but the net proceeds of any such insurance shall be made available for the repairs if made by either party. (b) Partial Damage - Uninsured Loss. If Premises Partial Damage that is not an Insured Loss occurs, unless caused by a negligent or willful act of Tenant (in which event Tenant shall make the repairs at Tenant's expense and this Lease shall continue in full force and effect), Landlord may at Landlord's option, either (i) repair such damage as soon as reasonably possible at Landlord's expense, in which event this Lease shall continue in full force and effect, or (ii) give written notice to Tenant within thirty (30) days after receipt by Landlord of knowledge of the occurrence of such damage of Landlord's desire to terminate this Lease as of the date sixty (60) days following the date of such notice. In the event Landlord elects to give such notice of Landlord's intention to terminate this Lease, Tenant shall have the right within ten (10) days after receipt of such notice to give written notice to Landlord of Tenant's commitment to pay for the repair of such damage totally at Tenant's expense and without reimbursement from Landlord. Tenant shall provide Landlord with the required funds or satisfactory assurance thereof within thirty (30) days following such commitment from Tenant. In such event this Lease shall continue in full force and effect, and Landlord shall proceed to make such repair as soon. as reasonably possible after the required funds are available. If Tenant does not give such notice and provide the funds or assurance thereof within the time specified above, this Lease shall terminate as of the date specified in Landlord's notice of termination. (c) Total Destruction. Notwithstanding any other provision hereof, if Premises Total Destruction occurs (including any destruction required by any authorized public authority) this Lease shall terminate sixty (60) days following the date of such Premises Total Destruction, whether or not the damage or destruction is an Insured Loss or was caused by a 310492820.2 18 negligent or willful act of Tenant. In the event, however, that the damage or destruction was caused by Tenant, Landlord shall have the right to recover all of Landlord's damages and losses from Tenant. (d) Damage Near End of Term. If at any time during the last six (6) months of the term of this Lease there is damage for which the cost to repair exceeds one month's Base Monthly Rent, whether or not an Insured Loss, Landlord may, at Landlord's option, terminate this Lease effective sixty (60) days following the date of occurrence of such damage by giving written notice to Tenant of Landlord's election to do so within thirty (30) days after the date of occurrence of such damage. (e) Abatement of Rent; Tenant's Remedies. (1) In the event of Premises Partial Damage for which Tenant is not legally responsible, the Base Monthly Rent and the Additional Rent payable by Tenant hereunder for the period during which such damage or condition, its repair, or restoration continues, shall be abated in proportion to the degree to which Tenant's use of the Premises is impaired, but not in excess of the amount of Base Monthly Rent for a 12 -month period. Except for abatement of Base Monthly Rent and Additional Rent as aforesaid, all other obligations of Tenant hereunder shall be performed by Tenant, and Tenant shall have no claim against Landlord for any damage suffered by reason of any such damage, destruction, or repair. (2) If Landlord shall be obligated to repair or restore the Premises under this Paragraph 16 and shall not commence, in a substantial and meaningful way, the repair or restoration of the Premises within ninety (90) days after such obligation shall accrue, Tenant may, at any time prior to the commencement of such repair or restoration, give written notice to Landlord and to any Lender(s) of which Tenant has actual notice of Tenant's election to terminate this Lease on a date not less than sixty (60) days following the giving of such notice. If Tenant gives such notice to Landlord and such Lender(s) and such repair or restoration is not commenced within thirty (30) days after receipt of such notice, this Lease shall terminate as of the date specified in said notice. If Landlord or a Lender(s) commences the repair or restoration of the Premises within thirty (30) days after the receipt of such notice, this Lease shall continue in full force and effect. "Commence" as used in this paragraph shall mean either the unconditional authorization of the preparation of the required plans, or the beginning of actual work on the Premises, whichever occurs first. (f) Waiver. Except as expressly provided in this Lease, damage to or destruction of the Premises shall not terminate this Lease or result in any abatement of Base Monthly Rent, Additional Rent or any other charge hereunder. Tenant waives any right of offset against Tenant's rental obligations that may be provided by any statute or rule of law in connection with Landlord's duties of repair and restoration under the provisions of this Lease. (g) Landlord Not Responsible. Landlord shall not be responsible for any loss, damage, or destruction to any Alterations, Trade Fixtures, or to other of Tenant's leasehold improvements or to any furniture, inventory, or other Tenant -owned improvements or property. 310492520.2 19 17. CONDEMNATION. (a) Total Taking. If, by exercise of the right of eminent domain or by conveyance made in response to the threat of the exercise of such right (in either case a "Taking"), all of the Premises are Taken, or if so much of the Premises are Taken that the Premises (even if the restorations described in Subparagraph (b), below, were to be made) cannot be used by Tenant for the purposes for which they were used immediately before the Taking, this Lease shall end on the earlier of the vesting of title to the Premises in the condemning authority or the taking of possession of the Premises by the condemning authority (in either case the "Ending Date"). If this Lease ends according to this Subparagraph (a), prepaid rent shall be appropriately prorated to the Ending Date. The award in a taking subject to this Subparagraph (a) shall be allocated according to Subparagraph (d), below. (b) Partial Taking. If, after a Taking, in Landlord's reasonable discretion, so much of the Premises remains that the Premises can be used for substantially the same purposes for which they were used immediately before the taking: (1) this Lease shall end on the Ending Date as to the part of the Premises which is Taken; (2) prepaid rent shall be appropriately allocated to the part of the Premises which is Taken and prorated to the Ending Date; (3) beginning on the day after the Ending Date, rent for so much of the Premises as remains shall be reduced in the proportion of the floor area of the Premises remaining after the Taking to the floor area of the Premises before the Taking; (4) at its sole expense, Tenant shall restore so much of the Premises as remains to a sound architectural unit substantially suitable for the purposes for which it was used immediately before the Taking, using good workmanship and new first class materials, all according to Paragraph 14, above; (5) upon the completion of restoration according to Subparagraph (4), above, Landlord will pay Tenant the lesser of (A) the net award made to Landlord on account of the taking (after deducting from the total award attorneys', appraisers', and other costs incurred in connection with obtaining the award, and amounts paid to the holders of mortgages affecting the Premises), or (B) Tenant's actual out-of-pocket cost of restoring the Premises; and (6) Landlord shall keep the balance of the net award. (c) Tenant's Award. In connection with any Taking subject to Subparagraph (b), above, Tenant may prosecute its own claim by separate proceedings against the condemning authority for damages legally due to it (such as the loss of fixtures which Tenant was entitled to remove and moving expenses) only so long as Tenant's award does not diminish or otherwise adversely affect Landlord's award in any manner. 310492820.2 20 (d) Allocation of an Award for a Total Taking. If this Lease ends according to Subparagraph (a), above, Landlord shall receive the entirety of any award that may be paid in connection with the Taking, including severance and consequential damages and any award for the value of this Lease, and Tenant shall have no claim or interest in any award, whether or not the award or any part of it is attributable to the value of the unexpired Term of this Lease. Tenant hereby irrevocably assigns and transfers to Landlord any right to compensation or damages to which Tenant may become entitled during the Term hereof by reason of any taking. (e) Waiver. Each party hereby waives the provisions of California Code of Civil Procedure Section 1265.130 allowing either party to petition the Superior Court to terminate this Lease in the event of a partial Taking of the Premises. 18. SUBORDINATION. (a) General. This Lease and Tenant's rights under this Lease are subject and subordinate to any ground lease or underlying lease, first mortgage, first deed of trust, or other first lien encumbrance or indenture, together with any renewals, extensions, modifications, consolidations, and replacements of them, which now or at any subsequent time affect the Premises, any interest of Landlord in the Premises, or Landlord's interest in this Lease and the estate created by this Lease (except to the extent that any such instrument expressly provides that this Lease is superior to it). This provision shall be self -operative and no further instrument of subordination shall be required in order to effect it. Nevertheless, Tenant shall execute, acknowledge and deliver to Landlord, at any time and from time to time, upon demand by Landlord, any documents as may be requested by Landlord, any ground Landlord or underlying Landlord, or any mortgagee, or any holder of a deed of trust or other instrument described in this paragraph, to confirm or effect the subordination. If Tenant fails or refuses to execute, acknowledge, and deliver any such document within twenty (20) days after written demand, Landlord, its successors, and assigns shall be entitled to execute, acknowledge, and deliver the document on behalf of Tenant as Tenant's as attorney -in -fact. Tenant constitutes and irrevocably appoints Landlord, its successors, and assigns, as Tenant's attorney -in -fact to execute, acknowledge, and deliver on behalf of Tenant any documents described in this paragraph. (b) Attornment. If any holder of any mortgage, indenture, deed of trust, or other similar instrument described in Subparagraph (a), above, succeeds to Landlord's interest in the Premises, Tenant shall pay to it all rents subsequently payable under this Lease. Tenant shall, upon request of anyone so succeeding to the interest of Landlord, automatically become the tenant of, and attorn to, the successor in interest without change in this Lease. The successor in interest shall not be bound by (1) any payment of rent for more than one month in advance, (2) any amendment or modification of this Lease made without its written consent, (3) any claim against Landlord arising prior to the date on which the successor succeeded to Landlord's interest, or (4) any claim or offset of rent against the Landlord. Upon request by the successor in interest and without cost to Landlord or the successor in interest, Tenant shall execute, acknowledge, and deliver an instrument or instruments confirming the attornment. The instrument of attornment shall also provide that, so long as Tenant does not default under this Lease, the successor in interest shall not disturb Tenant in its use of the Premises in accordance with this Lease. If Tenant fails or refuses to execute, acknowledge, and deliver the instrument within twenty (20) days after written demand, the successor in interest shall be entitled to 310492820.2 21 execute, acknowledge, and deliver the document on behalf of Tenant as Tenant's as attorney -in - fact. Tenant constitutes and irrevocably appoints the successor in interest as Tenant's attorney - in -fact to execute, acknowledge, and deliver on behalf of Tenant any document described in this paragraph. 19. LANDLORD'S ACCESS. Landlord, its agents, employees, and contractors may enter the Premises at any time in response to an emergency, and at all reasonable times to (1) inspect the Premises, (2) exhibit the Premises to prospective purchasers, lenders, or tenants, (3) determine whether Tenant is complying with its obligations under this Lease, (4) supply any service which this Lease may require Landlord to provide, (5) post notices of nonresponsibility or similar notices, or (6) make repairs or do any other act which this Lease or Applicable Laws may require or permit Landlord to make or do. Tenant waives any claim on account of any injury or inconvenience to Tenant's business, interference with Tenant's business, loss of occupancy or quiet enjoyment of the Premises, or any other loss occasioned by any entry of Landlord, its agents, employees, or contractors permitted hereunder. Landlord shall at all times have a key with which to unlock all of the doors in the Premises (excluding Tenant's vaults, safes, and similar areas designed in writing by Tenant in advance). No entry to the Premises by Landlord by any means will be a forcible or unlawful entry into the Premises or a detainer of the Premises or an eviction, actual or constructive, of Tenant from the Premises, or any part of the Premises, nor will any entry entitle Tenant to damages or an abatement of rent or other charges which this Lease requires Tenant to pay. Subject to the foregoing and to the other terms and conditions of this Lease, so long as Tenant pays -the rent and fully performs all of its other obligations in this Lease, Tenant's possession of the Premises will not be disturbed by Landlord. 20. INDEMNIFICATION, WAIVER AND RELEASE. (a) Indemnification. Tenant shall indemnify Landlord, its members, agents, and employees (Landlord and all such other persons are collectively referred to herein as "Landlord Parties") against, and hold Landlord and all other Landlord Parties harmless from and against any and all demands, claims, causes of action, fines, penalties, damages (including consequential damages), losses, liabilities, judgments, costs, and expenses (including, without limitation, attorneys' fees and court costs) (collectively, "Claims") incurred in connection with or arising from: (1) the use or occupancy of the Premises by Tenant or any person claiming under or through Tenant; (2) any activity, work, or thing done by Tenant on or about the Premises, the Common Area, or any other part of the Project; (3) any acts, omissions, or negligence of Tenant, any person claiming under Tenant or any Tenant Party; (4) any breach, violation, or nonperformance by Tenant or any person claiming under Tenant of any term, covenant, or provision of this Lease or any Applicable Laws; or (5) except for loss of use of all or any portion of the Premises or Tenant's property located within the Premises that is proximately caused by or results proximately from the willful misconduct of Landlord or its agents or employees, any injury or damage to the person, property, or business of Tenant or any Tenant Party. If any action or proceeding is brought against Landlord, its employees, or agents by reason of any claim, Tenant, upon notice from Landlord, shall defend the claim at Tenant's sole expense with counsel reasonably satisfactory to Landlord. Landlord need not have first paid any claim or other item covered by the foregoing indemnity or by any other indemnity contained in 310492820.2 22 this Lease in order to be indemnified. The rights of Landlord and the obligations of Tenant under the foregoing indemnity are in addition to, and not in lieu of, the rights of Landlord and the obligations of Tenant under the other indemnities made by Tenant in this Lease, (i) Waiver and Release. Tenant waives and releases all claims against Landlord, its employees, and agents with respect to all matters for which Landlord has disclaimed liability pursuant to the provisions of this Lease. In addition, Tenant agrees that Landlord, its members, agents, and employees shall not be liable for, and Tenant hereby waives and releases any claims, causes of action, or rights arising from or based on, any loss, injury, death, damage (including consequential damages) or other liability to persons, property, or Tenant's business occasioned by or arising from theft; fire; earthquake or other act of God; public enemy; injunction; riot; strike; insurrection; war; court order; requisition; order of governmental body or authority; fire; explosion; falling objects; steam, water, rain or snow; leak or flow of water (including water from the elevator system), rain or snow from the Premises or into the Premises or from the roof, street, subsurface, or from any other place, or by dampness, or from the breakage, leakage, obstruction, or other defects of the pipes, sprinklers, wires, appliances, plumbing, air conditioning, or lighting fixtures of the Premises; or from construction, repair, or alteration of the Premises or from any acts or omissions of any visitor of the Premises; the acts or omissions of Landlord or its employees, agents, contractors or other persons acting for or on behalf of Landlord, regardless of whether such acts or omissions be negligent, grossly negligent or otherwise (but not including the willful misconduct of Landlord); or from any cause beyond Landlord's control. With respect to the foregoing releases and waivers, Tenant expressly waives the benefits of Civil Code Section 1542, which reads as follows: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor" and any similar statute or common law that would render a waiver of unknown claims unenforceable. (b) Scope. Except as provided in the following sentence, the indemnities and waivers made or given by Tenant under this Lease will apply regardless of the active or passive negligence or sole, joint, concurrent, or comparative negligence of any Landlord Parties and regardless of whether liability without fault or strict liability is imposed or sought to be imposed on any of them. The indemnities and waivers made or given by Tenant under this Lease will not apply to the extent of the percentage of liability that a final judgment of a court of competent jurisdiction establishes under the comparative negligence principles of the State of California that a Claim against a Landlord Party was proximately caused by the willful misconduct or direct and active gross negligence of that Landlord Party; provided, however, that in such event the indemnity or waiver will remain valid for all other Landlord Parties. Tenant's duty to defend Landlord Parties is separate and independent of Tenant's duty to indemnify Landlord Parties, and applies regardless of whether issues of negligence, liability, fault, default or other obligation on the part of Tenant have been determined and whether or not Landlord Parties have paid any sums or incurred any detriment arising out of or relating, directly or indirectly, to any Claims. Tenant's compliance with the insurance requirements and other obligations under this Lease does not in any way restrict, limit or modify Tenant's indemnification obligations under this Lease. 310492820.2 23 (c) Survival. The provisions of this Paragraph 20 shall survive the expiration or sooner termination of this Lease. 21. SECURITY DEPOSIT. Upon the execution of this Lease, Tenant shall deposit Dollars ($ ) with Landlord as security for Tenant's payment of rent and performance of its other obligations under this Lease. If Tenant defaults in its payment of rent or performance of its other obligations under this Lease, Landlord may use all or part of the security deposit for (a) the payment of rent or any other amount in default, (b) for the payment of any other amount which Landlord may spend or become obligated to spend by reason of Tenant's default, (c) for the payment to Landlord of any other loss or damage which Landlord may suffer by reason of Tenant's default or (d) to clean and restore or repair the Premises, the Building or the Common Area following their surrender by Tenant hereunder. If Landlord so uses any portion of the security deposit, Tenant shall restore the security deposit to its original amount within five (5) days after written demand from Landlord. Landlord shall not be required to keep the security deposit separate from its general funds, and Tenant shall not be entitled to interest on the security deposit. The security deposit shall not be a limitation on Landlord's damages or other rights under this Lease, or a payment of liquidated damages, or an advance payment of the rent. If Tenant pays the rent and performs all of its other obligations under this Lease, Landlord will return the unused portion of the security deposit to Tenant within sixty (60) days after the end of the Term; however, if Landlord has evidence that the security deposit has been assigned to an assignee of this Lease, Landlord will return the security deposit to the assignee. Landlord may deliver the security deposit to the purchaser of the Premises and be discharged from further liability with respect to it. 22. LIMITATION ON TENANT'S RECOURSE. Tenant's sole recourse against Landlord, and any successor to the interest of Landlord in the Premises, is to the interest of Landlord, and any successor, in the Premises. Tenant shall not have any right to satisfy any judgment which it may have against Landlord, or any successor, from any other assets of Landlord, or any successor. In this paragraph the terms "Landlord" and "successor" include the shareholders, venturers, and partners of Landlord and successor and the officers, directors, and employees of Landlord and successor. The provisions of this paragraph are not intended to limit Tenant's right to seek injunctive relief or specific performance, or Tenant's right to claim the proceeds of insurance (if any) specifically maintained by Landlord for Tenant's benefit. 23. DEFAULT. (a) Cure by Landlord. If Tenant fails to pay when due amounts payable under this Lease or to perform any of its other obligations under this Lease within the time permitted for its performance, then Landlord, after ten (10) days' written notice to Tenant (or, in case of any emergency, upon notice or without notice as may be reasonable under the circumstances) and without waiving any of its rights under this Lease, may (but shall not be required to) pay the amount or perform the obligation. All amounts so paid by Landlord and all costs and expenses incurred by Landlord in connection with the performance of any obligations (together with interest at the rate described in Paragraph 4(d), above, from the date of Landlord's payment of the amount or incurring of each cost or expense until the date of full repayment by Tenant) shall be payable by Tenant to Landlord on demand. In the proof of any damages that Landlord may claim against Tenant arising out of Tenant's failure to maintain insurance, Landlord shall not be 310492820.2 24 limited to the amount of the unpaid insurance premium but shall also be entitled to recover as damages for the breach the amount of any uninsured loss (to the extent of any deficiency in the insurance required by the provisions of this Lease), damages, costs and expenses of suit, including attorneys' fees, arising out of damage to, or destruction of, the Premises occurring during any period for which Tenant has failed to provide the insurance. (b) Events of Default. Any of the following events or conditions shall constitute an event of default hereunder without any notice or demand, except as otherwise expressly specified: (1) Tenant fails to make any payment of rent, whether an installment of Base Monthly Rent or an item of Additional Rent, as and when required under the terms of this Lease; (2) Tenant vacates or abandons the Premises; (3) This Lease or the Premises or any part of the Premises is taken upon execution or by other process of law directed against Tenant, or is taken upon or subjected to any attachments by any creditor of Tenant or claimant against Tenant, and the attachment is not discharged within fifteen (15) days after its levy; (4) Tenant files a petition in bankruptcy or insolvency or for reorganization or arrangement under the bankruptcy laws of the United States or under any insolvency act of any state, or is dissolved, or makes an assignment for the benefit of creditors; (5) Involuntary proceedings under any bankruptcy laws or insolvency act or for the dissolution of Tenant are instituted against Tenant, or a receiver or trustee is appointed for all or substantially all of Tenant's property, and the proceeding is not dismissed or the receivership or trusteeship is not vacated within sixty (60) days after institution or appointment; (6) Tenant's assignment in violation of Paragraph 11, above; (7) Tenant breaches any of the other agreements, terms, covenants, or conditions that this Lease requires Tenant to perform, fulfill, comply with or observe, and the breach continues for a period of ten (10) days after written notice by Landlord to Tenant; (8) Tenant fails to take possession of the Premises on the Commencement Date; or (9) Any default occurs under the Guaranty. Tenant agrees that each and every one of the foregoing events of default are a material part of this Lease, and that Landlord would not have entered into this Lease without each and every one of said events of defaults being a material part of this Lease. 310492820.2 25 (c) Remedies. If any one or more events of default set forth in Subparagraph (b), above, occurs, then Landlord may, at its sole election, exercise any one or more of the following remedies: (1) give Tenant written notice of its intention to terminate this Lease on the date of the notice or on any later date specified in the notice, and, on the date specified in the notice, Tenant's right to possession of the Premises shall cease and this Lease shall be terminated, except as to Tenant's liability set forth in this Subparagraph (c)(1) and as to any obligations stated in this Lease to survive the termination of this Lease, as if the date fixed in the notice were the end of the Term of this Lease. If this Lease is terminated pursuant to the provisions of this Subparagraph (c)(l), Tenant shall remain liable to Landlord for damages in an amount equal to the rent and other sums that would have been owing by Tenant under this Lease for the balance of the Term if this Lease had not been terminated, less the net proceeds, if any, of any reletting of the Premises by Landlord subsequent to the termination, after deducting all Landlord's expenses in connection with reletting, including without limitation the expenses set forth in Subparagraph (c)(2), below. Landlord shall be entitled to collect damages from Tenant monthly on the days on which the rent and other amounts would have been payable under this Lease if this Lease had not been terminated, and Landlord shall be entitled to receive damages from Tenant on each day. Alternatively, at the option of Landlord, if this Lease is terminated, Landlord shall be entitled to recover from Tenant: a. the worth at the time of award of the unpaid rent which had been earned at the time of termination; b. the worth at the time of award of the amount by which the unpaid rent which would have been earned after termination until the time of award exceeds the amount of rent loss that Tenant proves could reasonably have been avoided; c. the worth at the time of award of the amount by which the unpaid rent for the balance of the Term of this Lease after the time of award exceeds the amount of rent loss that Tenant proves could reasonably be avoided; and d. any other amount necessary to compensate Landlord for all the detriment proximately caused by Tenant's failure to perform its obligations under this Lease or which in the ordinary course of things would be likely to result from the failure. The "worth at the time of award" of the amount referred to in clauses (A) and (B), above, is computed by allowing interest at the highest rate permitted by law. The "worth at the time of award" of the amount referred to in clause (C), above, is computed by discounting the amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award. (2) Without demand or notice, re-enter and take possession of the Premises or any part of the Premises; repossess the Premises as of the Landlord's former estate; expel the Tenant from the Premises and those claiming through or under Tenant; and remove the effects of all or any, without being deemed guilty of any manner of trespass and without prejudice to any remedies for arrears of rent or preceding breach of covenants or 310492820.2 26 conditions. If Landlord elects to re-enter as provided in this Subparagraph (c)(2), or if Landlord takes possession of the Premises pursuant to legal proceedings or pursuant to any notice provided by law, Landlord may, from time to time, without terminating this Lease, relet the Premises or any part of the Premises, either alone or in conjunction with other portions of the Project of which the Premises are a part, in Landlord's or Tenant's name but for the account of Tenant, for the term or terms (which may be greater or less than the period which would otherwise have constituted the balance of the Term of this Lease) and on such terms and conditions (which may include concessions of free rent, and the alteration and repair of the Premises) as Landlord, in its uncontrolled discretion, may determine. Landlord may collect and receive the rents for the Premises. Landlord shall not be responsible or liable for any failure to relet the Premises, or any part of the Premises, or for any failure to collect any rent due upon the reletting. No re-entry or taking possession of the Premises by Landlord shall be construed as an election on Landlord's part to terminate this Lease unless a written notice of the intention is given to Tenant. No notice from Landlord under this Lease or under a forcible entry and detainer statute or similar law shall constitute an election by Landlord to terminate this Lease unless the notice specifically says so. Landlord reserves the right following any re-entry or reletting, or both, to exercise its right to terminate this Lease by giving Tenant written notice, and in that event this Lease shall terminate as specified in the notice. If Landlord elects to take possession of the Premises according to this Subparagraph (c)(2) without terminating this Lease, Tenant shall pay Landlord the rent and other sums which would be payable under this Lease if the repossession had not occurred, less the net proceeds, if any, of any reletting of the Premises after deducting all of Landlord's expenses incurred in connection with the reletting, including without limitation all repossession costs, brokerage commissions, legal expenses, attorneys' fees, expenses of employees, alteration, remodeling and repair costs, and expenses of preparation for the reletting. If, in connection with any reletting, the new lease term extends beyond the existing Term, or the Premises covered by the reletting include areas that are not part of the Premises, a fair apportionment of the rent received from the reletting and the expenses incurred in connection with the reletting shall be made in determining the net proceeds received from reletting. I.n addition, in determining the net proceeds from reletting, any rent concessions shall be apportioned over the Term of the new lease. Tenant shall pay the amounts to Landlord monthly on the days on which the rent and all other amounts owing under this Lease would have been payable if possession had not been retaken, and Landlord shall be entitled to receive the rent and other amounts from Tenant on each day. Landlord has the remedy described in California Civil Code Section 1951.4 (lessor may continue lease in effect after lessee's breach and abandonment and recover rent as it becomes due, if lessee has right to sublet or assign, subject only to reasonable limitations). (3) Have a receiver appointed to take possession of the Premises and to conduct Tenant's business thereon (and neither the filing of a petition for the appointment of a receiver nor the appointment itself shall constitute an election by Landlord to terminate this Lease). (4) Exercise any and all other remedies available to Landlord under this Lease, at law, in equity, by statute, under any other contract or agreement between Landlord and Tenant, or otherwise, in such order and in such manner as Landlord deems appropriate in its sole discretion. 310492820.2 27 24. COMMON AREA. (a) Definition. The term "Common Area" refers only to the area outside the Premises designated as "Common Area" in Exhibit "A" hereto, which Common Area shall be for the non-exclusive use during the Term of Landlord, Tenant and other tenants of the Project, if any, and their respective employees, customers, and invitees, including parking areas, loading and unloading areas, trash areas, roadways, sidewalks, walkways, driveways and landscaped areas, if any. (b) Tenant's Right to Use Common Area. During the Term of this Lease, Tenant and its employees, customers and invitees shall have the non-exclusive right to use, in common with others entitled to such use (including, without limitation, Landlord, other tenants of the Project and their respective employees, suppliers, shippers, contractors, customers and invitees), the Common Area as it may be redesignated by Landlord from time -to -time, subject to any rights, powers and privileges reserved by Landlord under this Lease or under the terms of any rules and regulations or restrictions governing the use of the Project or any part thereof. (c) No Storage In Common Area. Under no circumstances shall the right granted under Subparagraph (b), above, be deemed to include the right to store any refuse, boxes, equipment, or other property of any type or kind, whether temporarily or permanently, in or on the Common Area. Any such storage shall be permitted only by the prior written consent of Landlord or Landlord's designated agent, which consent may be revoked at any time. In the event that any unauthorized storage shall occur, Landlord shall have the right, without notice and without liability to Tenant or any other person, in addition to all other rights and remedies Landlord may have under this Lease, to remove any refuse, boxes, equipment, or other property stored, whether permanently or temporarily, within the Common Area without Landlord's prior written consent, and charge the cost of such removal to Tenant, which cost shall constitute Additional Rent and shall be immediately payable upon demand by Landlord. Tenant shall not have any right to use or occupy, or have any other rights respecting, any buildings or structures (other than the Premises), parking areas, roadways, driveways, walkways, trash areas, landscaped areas, loading and unloading areas, sidewalks, or other improvements or areas located within the Project. (d) Rules and Regulations. Tenant agrees that it shall abide by, and keep and observe all Rules and Regulations ("Rules and Regulations") which Landlord may make from time to time for the management, safety, care, and cleanliness of the grounds, the parking and unloading of vehicles and the preservation of good order, as well as for the convenience of other occupants or tenants of the Project and their invitees. Landlord or such other person(s) as Landlord may appoint shall have the exclusive control and management of the Common Area and shall have the right, from time to time, to establish, modify, amend and enforce the Rules and Regulations. Tenant agrees to cause all Tenant Parties to abide and conform to all such Rules and Regulations. Landlord shall not be responsible to Tenant for the non-compliance with said rules and regulations by other tenants or subtenants of the Project or anyone else occupying or using the Project. (e) Changes. Landlord shall have the right, in Landlord's sole discretion, from time to time: (1) to make changes to the Common Area, including, without limitation, 310492820.2 28 changes in the location, size, shape and number of driveways, entrances, parking spaces, parking areas, loading and unloading areas, ingress, egress, direction of traffic, landscaped areas, walkways and utility raceways; (2) to close temporarily any of the Common Area for maintenance purposes so long as reasonable access to the Premises remains available; (3) to designate land outside the boundaries of the Project to be a part of the Common Area; (4) to add buildings and improvements to the Common Area; (5) to use the Common Area while engaged in making additional improvements, repairs or alterations to the Project, or any portion thereof; (6) to remove unauthorized persons from the Project; (7) to change the name or address of the Premises or the Project; and (8) to do and perform such other acts and make such other changes in, to or with respect to the Common Area and project as Landlord may, in the exercise of sound business judgment, deem to be appropriate. (f) Common Area Maintenance. During the Term, Landlord shall keep the Common Area in good order, condition and repair. The costs incurred by Landlord to do so (including maintenance, repair and replacement costs of any type or kind) are referred to herein as "CAM Costs". Landlord shall periodically (but not more often than monthly) invoice to Tenant, and Tenant shall reimburse to Landlord within fifteen (15) days following Tenant's receipt of Landlord's invoice, all such CAM Costs through the date of the invoice. 25. VEHICLE PARKING. (a) Number of Spaces. Tenant shall be entitled to use {one hundred percent (100%)] of the unreserved parking spaces on those portions of the Common Area designated from time to time by Landlord for Tenant's parking ("Unreserved Parking Spaces"). Tenant shall not be entitled to any reserved or exclusive vehicle parking spaces, Said Unreserved Parking Spaces shall be used for parking by vehicles no larger than full-size passenger automobiles or pick-up trucks, herein called "Permitted Size Vehicles". Vehicles other than Permitted Size Vehicles shall be parked and loaded or unloaded as directed by Landlord in the rules and regulations issued by Landlord. (b) Restrictions on Parking. Tenant shall not permit or allow any vehicles that belong to or are controlled by Tenant or any Tenant Party to be loaded, unloaded, or parked in areas other than those designated by Landlord for such activities. (c) Removal of Unauthorized Vehicles. If Tenant permits or allows any of the prohibited activities described in this Paragraph 25, then Landlord shall have the right, without notice, in addition to such other rights and remedies that it may have, to remove or tow away the vehicle involved and charge the cost to Tenant, which cost shall be immediately payable upon demand by Landlord. 26. SECURITY. Tenant acknowledges that Landlord shall have no obligation to provide any guard service or other security measures to the Premises or any other part of the Project, and Tenant assumes all responsibility for the protection of Tenant and each Tenant Party, and the property of Tenant and each Tenant Party from acts of third parties. Nothing in this Lease shall prevent Landlord, at Landlord's sole option, from providing security protection for the Project. 310492820,2 29 27. MISCELLANEOUS. (a) No Recordation. Neither this Lease nor a Memorandum thereof shall be recorded. (b) Holding Over. If Tenant remains in possession of the Premises after this Lease expires or sooner terminates, Tenant shall occupy the Premises as a tenant from month -to - month, subject to all conditions, provisions, and obligations of this Lease in effect on the last day of the Term, except that monthly rent shall be increased to an amount which is two hundred percent (200%) of the Base Monthly Rent then in effect immediately prior to the expiration or sooner termination of this Lease. Nothing herein shall grant, or be deemed to grant, Tenant any right whatsoever to retain possession of the Premises or any part thereof beyond the expiration or earlier termination of this Lease. (c) Estoppel Certificates. Within no more than ten (10) days after written request by Landlord, Tenant shall execute, acknowledge, and deliver to Landlord a certificate stating: (1) that this Lease is unmodified and in full force and effect, or, if this Lease is modified, the way in which it is modified accompanied by a copy of the modification agreement; (2) the date to which rental and other sums payable under this Lease have been paid; (3) that no notice has been received by Tenant of any default which has not been cured, or, if the default has not been cured, what Tenant intends to do in order to effect the cure, and when it will do so; (4) that Tenant has accepted and occupied the Premises; (5) that Tenant has no claim or offset against Landlord, or, if it does, stating the date of the assignment and assignee (if known to Tenant); and (6) other matters as may be reasonably requested by Landlord. Any certificate may be relied upon by any prospective purchaser of the Premises and any prospective mortgagee or beneficiary under any deed of trust or mortgage encumbering the Premises. If Landlord submits a completed certificate to Tenant, and if Tenant fails to object to its contents within ten (10) days after its receipt of the completed certificate, the matters stated in the certificate shall conclusively be deemed to be correct. Furthermore, Tenant irrevocably appoints Landlord as Tenant's attorney - in -fact to execute and deliver on Tenant's behalf any completed certificate to which Tenant does not object within ten (10) days after its receipt. (d) No Waiver. No waiver of any condition or agreement in this Lease by Landlord shall imply or constitute a further waiver by Landlord of the same or any other condition or agreement. No act or thing done by Landlord or Landlord's agents during the Term of this Lease shall be deemed an acceptance of a surrender of the Premises, and no agreement to accept the surrender shall be valid unless in writing signed by Landlord. The delivery of Tenant's keys to any employee or agent of Landlord shall not constitute a termination of this Lease unless Landlord has entered into an express written agreement to that effect. No payment by Tenant, or receipt from Landlord, of a lesser amount than the rent or other charges stipulated in this Lease shall be deemed to be anything other than a payment on account of the earliest stipulated rent. No endorsement or statement on any check or any letter accompanying any check or payment as rent shall be deemed an accord and satisfaction. Landlord may accept any check for payment without prejudice to Landlord's right to recover the balance of the rent or to pursue any other right or remedy available to Landlord. If this Lease is assigned, or if the Premises or any part of the Premises are sublet or occupied by anyone other than Tenant, Landlord may collect rent from the assignee, subtenant, or occupant and apply the net amount 310492820.2 30 collected to the rent reserved in this Lease. No collection shall be deemed a waiver of the covenant in this Lease against assignment and subletting, the acceptance of the assignee, subtenant, or occupant as Tenant, or a release of Tenant from the complete performance by Tenant of its covenants and obligations under this Lease. Unless otherwise expressly stated to the contrary in this Lease, Landlord may withhold its consent or approval in Landlord's sole and absolute discretion. (e) Authority. If Tenant signs this Lease as a corporation, each of the persons executing this Lease on behalf of Tenant warrants to Landlord that Tenant is a duly authorized and existing corporation, that Tenant is qualified to do business in the state in which the Premises are located, that Tenant has full right and authority to enter into this Lease, and that each and every person signing on behalf of Tenant is authorized to do so. Upon Landlord's request, Tenant shall provide evidence satisfactory to Landlord confirming these representations. (f) Notices. Any notice, request, demand, consent, approval, or other communication required or permitted under this Lease shall be written and shall be deemed to have been given (1) when personally delivered, (2) when served pursuant to the Federal Rules of Civil Procedure, (3) on the second (2nd) business day after it is deposited in any depository regularly maintained by the United States postal service, postage prepaid, certified or registered mail, return receipt requested, or (4) on the date of scheduled delivery when sent by FedEx or other nationally recognized overnight commercial mail service, addressed as follows: If to Landlord: If to Tenant: College Terrace Centre LLC c/o PCS Realty Advisors P.O. Box 620186 Woodside, CA 94062 Attn: Mr. Patrick Smailey Fax: (650) 701-1609 J & A Family Markets, Inc. 274 Redwood Shores Parkway, #201 Redwood Shores, CA 94065 Attn: Mr. James Smailey Fax: Either Landlord or Tenant may change its address or addressee for purposes of this paragraph by giving ten (10) days' prior notice according to this paragraph. Notwithstanding the foregoing, any notice from Landlord to Tenant shall be deemed to have been given if delivered to the Premises, addressed to Tenant, whether or not Tenant has vacated or abandoned the Premises. (g) Attorneys' Fees. In any dispute arising out of this Lease (or the enforcement of interpretation thereof), the prevailing party shall be entitled to all costs and expenses, including reasonable attorneys' fees and expert fees incurred by the prevailing party at trial and on any appeal. 310492820.2 31 (h) Waiver• of Jury Trial. Landlord and Tenant waive trial by jury in any action, proceeding, or counterclaim brought by either of them against the other on all matters arising out of this Lease or the use and occupancy of the Premises (except claims for personal injury or property damage). If Landlord commences any summary proceeding for nonpayment of rent, Tenant shall not interpose (and waives the right to interpose) any counterclaim in any proceeding. (i) Binding Effect. This Lease shall inure to the benefit of, and shall be binding upon, Landlord's successors and assigns. This Lease shall inure to the benefit of, and shall be binding upon, Tenant's successors and assigns so long as the succession or assignment is permitted by Paragraph 11, above. (j) Termination: Merger. Unless specifically stated otherwise in writing by Landlord, the voluntary or other surrender of this Lease by Tenant, the mutual termination or cancellation hereof, or a termination hereof by Landlord for Breach by Tenant, shall automatically terminate any sublease or lesser estate in the Premises; provided, however, Landlord shall, in the event of any such surrender, termination or cancellation, have the option to continue any one or more of any existing subtenancies. Landlord's failure within ten (10) days following any such event to make a written election to the contrary by written notice to the holder of any such lesser interest, shall constitute Landlord's election to have such event constitute the termination of such interest. (k) Approximations. Unless otherwise provided herein, any statement of square footage set forth in this Lease, or that may have been used in calculating rental and/or CAM Costs, is an approximation which Landlord and Tenant agree is reasonable and the rental is not subject to revision whether or not the actual square footage is more or less. (1) Brokers. Each party warrants to each other that neither has dealt with any real estate agents, brokers or finders in connection with this Lease. Each party agrees to indemnify, defend, and hold the other harmless from all loss, claim, cost, and expense incurred as a result of the breach of this warranty. (m) Cumulative Remedies. No remedy or election hereunder made by Landlord shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies available at law, in equity, by statute, under any other contract or agreement between Landlord and Tenant, or which are otherwise available to Landlord. (n) Covenants and Conditions. All provisions of this Lease to be observed or performed by Tenant are both covenants and conditions. (o) Landlord's Liability. The term "Landlord" as used herein shall mean the owner or owners at the time in question of the fee title to the Premises. In the event of a transfer of Landlord's title or interest in the Premises (or any parcel of which the Premises are a part) or in this Lease, Landlord shall deliver to the transferee or assignee (in cash or by credit) any unused security deposit held by Landlord at the time of such transfer or assignment. Upon such transfer or assignment and delivery of the security deposit, as aforesaid, the prior Landlord shall be relieved of all liability with respect to the obligations and/or covenants under this Lease 310492820.2 32 thereafter to be performed by Landlord. Subject to the foregoing, the obligations and/or covenants in this Lease to be performed by Landlord shall be binding only upon the Landlord as herein above defined. (p) Reservations. Landlord reserves the right from time to time, to grant, without the consent or joinder of Tenant, such easements, rights of way, utility raceways, and dedications that Landlord deems necessary, and to cause the recordation of parcel maps and restrictions, so long as such easements, rights of way, utility raceways, dedications, maps and restrictions do not unreasonably interfere with the use of the Premises by Tenant. Tenant agrees to sign any documents reasonably requested by Landlord to effectuate any such easement rights, dedication, map or restrictions. (q) Entire Agreement; Amendment. This Lease constitutes the entire agreement between Landlord and Tenant with respect to the subject matter hereof, and there are no agreements, warranties or representations between the parties except as expressly set forth in this Lease. Tenant acknowledges that neither Landlord nor any agent, employee or representative of Landlord have made any representation or warranty as to any matter except as may be expressly set forth in this Lease. Landlord and Tenant acknowledge that there are no oral agreements between them affecting this Lease, and this Lease supersedes and cancels all previous negotiations, arrangements, brochures, agreements, and understandings, if any, between Landlord and Tenant with respect to the subject matter of this Lease. This instrument shall not be legally binding until it is executed by both Landlord and Tenant. No change, modification, amendment or addition to this Lease shall be binding unless in writing and signed by both Landlord and Tenant. 310492820.2 33 IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the first date in this Lease. Landlord: College Terrace Centre LLC, a California limited liability company By: E.O.„oat- Name: ,has ep.4 Its: Manager Tenant: College Terrace Centre LLC, a California limited liability company By: `LQ-e � (,DLLs, Name: ' xk(, CV 1 (e✓PC Its: Manager J & A F : y Markets, Inc., a Califs corporation By: Name: Its: c Iry 310492x20.2 34 Attachment A Years 1 - 5 $22,500.00 Years 6 - 10 CPI Index Years 11 - 15 CPI Index Years 16 - 20 CPI Index PCSA\45106\791128.1 7 Attachment D CARRASCO & ASSOCIATES AnYkdjcCTS MANNERS 1 A PROFESSIONAL CORPORA- ON 63.5 a CFJ.UNO R:AL PALO ALTO. CA. 9497E 65032[-T1R COLLEGE TERRACE CENTRE 2100 EL CAMINO REAL I PALO ALTO, CA GROCERY STORE LAYOUT DATE : D5-26-20'14 Attachment C - RECORDING REQUESTED BY, AND WHEN RECORDED, MAIL TO: CITY OF PALO ALTO City Hall, 8th Floor 250 Hamilton Avenue Palo Alto, CA 94301 Attn: City Attorney (Above Space For Recorder's Use) The undersigned declares that this document is recorded at the request of and for the benefit of the City of Palo Alto and therefore is exempt from the payment of the recording fee pursuant to Government Code §6103 and 27383 and from the payment of the Documentary Transfer Tax pursuant to Revenue and Taxation Code §11922. RESTRICTIVE COVENANT (PC ORDINANCE 5069) This Restrictive Covenant ("Restrictive Covenant") is made as of December _, 2014, between COLLEGE TERRACE CENTRE LLC, a California limited liability company ("Owner"), and the CITY OF PALO ALTO, a California municipal corporation ("City"). Owner and City are collectively referred to herein as the "Parties," and individually as a "Party." RECITALS A. Owner is the fee owner of certain real property located at 2100 El Camino Real in the City of Palo Alto, County of Santa Clara, more particularly described on Exhibit A attached hereto and incorporated herein ("Property"). B. On December 2, 2009, the City, acting by and through the City Council, approved Ordinance No. 5069 (the "PC Ordinance"), amending Section 18.08.040 of the Palo Alto Municipal Code to rezone the property to PC Planned Community 5069 and allow the development of the Property as a mixed use project comprised of commercial, residential and office, and related parking facilities ("College Terrace Centre"). C. In approving the PC Ordinance, City made the requisite finding that development of the Property under the provisions of the PC Planned Community District would result in public benefits not otherwise attainable by application of the regulations of general districts or combining districts. Section 4(f)(1) identifies as a public benefit inherent to the development project, provision of an 8,000 square foot neighborhood -serving grocery market. D. Section 4(b) of the PC Ordinance imposes, in relevant part, special limitations on land uses including the following limitations with regard to the grocery store: (i) A grocery store, with an area of at least 8,000 square feet, shall exist within the development for the useful life of the improvement; (ii) The grocery store shall be a neighborhood service grocery store that provides all the typical grocery store products and services of a neighborhood serving store such 313598535.4 1 that it shall not become a convenience mart facility; (iii) The grocery tenant shall occupy and begin operations prior to any office tenant occupancy; (iv) The grocery tenant, if it is a party other than John Garcia (DBA JJ&F), shall be subject to the prior approval of the City and shall not be withheld unless the City reasonably finds that such proposed grocery tenant is not likely to be comparable in quality of products and service as JJ&F as it existed and operated on December 7, 2009; and (v) The grocery store space shall remain in continuous operation as a grocery store. Section 4(b)(7) defines "continuous" to include "brief closure for ordinary business purposes." E. On August 11, 2014, the City Council conducted a hearing to determine whether the proposed replacement grocer met the PC Ordinance requirements. At that hearing the Council continued the item and directed the Owner to provide further information on the tenant. Subsequently, Owner modified its proposal and on December 1, 2014, the City Council conducted a second hearing to consider whether the PC condition had been satisfied. At that hearing, the Council rejected applicant's replacement tenant but directed staff to come back with a permit extension. F. As a condition precedent to the City's approval of a replacement grocer tenant other than John Garcia (the "Replacement Tenant"), City is requiring that Owner record this Restrictive Covenant to ensure that a grocery store is located and continues to operate within College Terrace Centre as expressly set forth in the PC Ordinance. Owner wishes to record this Restrictive Covenant, subject to the terms and conditions set forth below. COVENANT NOW, THEREFORE, in consideration of the above recitals and the mutual covenants, terms, conditions, and restrictions contained herein, Owner hereby declares as follows: 1. Operation of a Grocery Store. During the term of this Restrictive Covenant, a grocery store with an area of at least 8,000 square feet shall be in continuous operation within College Terrace Centre for the useful life of the improvements specified in the PC Ordinance. The grocery store shall be a neighborhood service grocery store that provides all the typical grocery store products and services of a neighborhood serving store such that it shall not become a convenience mart facility. For purposes of this Restrictive Covenant, and consistent with the PC Ordinance, "continuous" operation includes any brief closure for ordinary business purposes. 2. Penalty. In the event that the Replacement Tenant, and any subsequent tenant thereafter, fully ceases business operations within College Terrace Centre and such cessation continues for a period of time in excess of six (6) consecutive months or the applicable grocery store tenant is not replaced with another grocery store tenant that begins business operations within such 6 -month period, the City shall have the right, but not the obligation, to levy a penalty against Owner, or any successor owner of the Property, as the case may be, in the amount of Two Thousand Dollars and 00/100s ($2,000.00) (the "Penalty") for each day after each 6 -month period that a grocery store is not in operation within College Terrace Centre in accordance with the terms of the PC Ordinance Notwithstanding the foregoing or anything to the contrary set forth in this Restrictive Covenant, the Penalty shall not be imposed and shall not become payable if City or any other third party (not including Owner) challenges the legality of the PC Ordinance or otherwise seeks to preclude, halt or interrupt the operation of a grocery store and 2 successfully obtains or secures a court order temporarily or permanently enjoining or otherwise prohibiting the operation of a grocery store within College Terrace Centre. 3. City Enforcement and Right to Inspect. Upon no less than two (2) business days' prior written notice, City shall have the right to inspect grocery store operations once per year for the sole purposes of confirming that (i) the Replacement Tenant, or any subsequent tenant, is providing products and services typical of a neighborhood serving store such that it shall not become a convenience mart facility and (ii) such products and services are comparable in quality to those of JJ&F as it existed and operated on December 7, 2009. This provision shall not preclude the City from conducting additional inspections based on a code enforcement complaints. 4. Reserved Rights. Owner reserves to itself, and to its members, managers, personal representatives, heirs, successors, and assigns, all rights accruing from its ownership of the Property, including the right to engage in all uses of the Property that are not expressly prohibited or limited by, and are consistent with, the PC Ordinance and this Restrictive Covenant, including the right to seek from the City modifications to, amendments to or termination of the PC Ordinance. 5. Term. This Restrictive Covenant shall be effective on the date on which it is recorded and shall continue in full force until the earlier to occur of (i) termination of this Restrictive Covenant by written agreement of Owner (or its successor or assign, as applicable) and City or (ii) the operative provisions of the PC Ordinance are no longer in full force or effect. 6. Notices. All notices required or permitted under this Restrictive Covenant shall be in writing and shall be deemed to have been duly given if personally delivered or sent by prepaid first class mail, addressed as follows: If to Owner: If to City: College Terrace Centre, LLC 388 Market Street, Suite 940 San Francisco, CA 94111 Attn: Brian Spiers City of Palo Alto City Hall, 8th Floor 250 Hamilton Avenue Palo Alto, CA 94301 Attn: City Attorney 7. Applicable Law. This Restrictive Covenant shall be construed and enforced in accordance with the laws of the State of California. 8. Governing Law. This Restrictive Covenant shall be governed by the laws of the State of California. 9. Successors and Assigns. The provisions of this Restrictive Covenant shall be binding upon and inure to the benefit of the successors and assigns of Owner and City, respectively. 3 10. Amendment. This Restrictive Covenant may only be amended pursuant to a written amendment, executed by Owner (or its successor or assign), consented to by City, and recorded in the Office of the Recorder of Santa Clara County, California. 11. Counterparts. This Restrictive Covenant may be executed in counterparts, each of which shall be deemed an original and all of which, taken together, shall be deemed one and the same instrument. [SIGNATURES ON FOLLOWING PAGE] 4 IN WITNESS WHEREOF, the Parties have entered into this Restrictive Covenant as of the date first set forth above. OWNER COLLEGE TERRACE CENTRE LLC a California Limited Liability Company By: Brian Spiers Development, LLC a California Limited Liability Company Its Manager By: Brian Spiers Its: Manager 5 CITY CITY OF PALO ALTO, a California municipal corporation By: City Manager Approved as to Form By: City Attorney STATE OF CALIFORNIA ) ) ss. COUNTY OF SANTA CLARA) On , before me, , a Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (SEAL) 6 EXHIBIT A LEGAL DESCRIPTION OF THE PROPERTY 7 Attachment D Carnahan, David CITY OF PALO ALTO, CA CITY CLERK'S OFFICE From: Sent: To: Subject: Herb Borock P.O. Box 632 Palo Alto, CA 94302 December 8, 2014 Palo Alto City Council 250 Hamilton Avenue Palo Alto, CA 94301 herb <herb_borock@hotmail.com> Monday, December 08, 2014 4:23 PM Council, City; Clerk, City December 8, 2014, Council Meeting, Item #10: 2180 El Camino Real DECEMBER 8, 2014, CITY COUNCIL MEETING, AGENDA ITEM #10 2180 EL CAMINO REAL Dear City Council: 14 DEC -9 I: 43 Please remove this item from your Consent Calendar because the action you took to reject the project last week does not need an additional vote, and because the amendment made to that motion to reject the project violates the California Environmental Quality Act (CEQA) due to the fact that it creates a Potentially Significant Effect that conflicts with Palo Alto Municipal Code Sections 18.38.130 and 18.38.140, and Ordinances Nos. 5069 and 5061 adopted for the purpose of avoiding or mitigating an environmental effect. [Guidelines for Implementation of the ?California Environmental Quality Act, APPENDIX G, Issue X. LAND USE AND PLANNING Would the project (b) Conflict with any applicable land use plan, policy, or regulation of an agency with jurisdiction over the project (including, but not limited to the general plan, specific plan, local coastal program, or zoning ordinance) adopted for the purpose of avoiding or mitigating an environmental effect?] Sincerely, Herb Borock Carnahan, David CITY OF PALO ALTO, CA PITY Pi PPK'S f1FF:1 1 From: Fred Balin <fbalin@gmail.com> Sent: Monday, December 08, 2014 1:23 PM To: Clerk, City Cc: Council, City; Keene, James; Gitelman, Hillary; Stump, Molly; Silver, Cara Subject: Attn: City Clerk -- #10: Motion and/or Amendment Approved? To: City Clerk cc: City Council, City Manager, Planning Director, City Attorney 14 EEC —9 PM 1:43 Item #10 this evening, Staff Report ID #5371, "Time Extension for College Terrace Market," on pages 2 and 3, cites both a motion and an amendment from the council meeting of last Monday (12/1)related to this topic. Kindly clarify whether: 1. Both the Motion (Klein/Kniss, 1 sentence) and the Amendment (Scharff/Burt ,1 long, but incomplete sentence, followed by 4 1 -sentence subsections) were adopted and therefore, the council's approval consists of the complete text of both the motion and the amendment, or whether 2. The Amendment supersedes the Motion and only the text of the amendment is what the council formally adopted. Thank you, Fred Bain 2385 Columbia Street Carnahan, David (CITY Of PALO ALTO, CA CITY CLERK'S OFFICE from: Maryjane Marcus <maryjane.marcus@gmail.com> Pt DEC _9 PM 1: 42 Sant Monday, December 08, 2014 1:15 PM TIM Council, City 'Subject: 2180 El Camino, Palo Alto -- limit Motion to extension of deadline OR let REZONING lapse. Dear Palo Alto City Council, I was the first person to testify last week about 2180 El Camino, sharing with you my urging that you insert language to ensure the PUBLIC BENEFIT lasts in perpetuity. I remember sitting there afterwards and thinking, 1) wow, the City }has much bigger issues than whether a grocery store is a public benefit (so maybe your staff can do more on this) and 2 phis is turning out to take lots of time and be a bad deal for many. Think about it....whatever you decide on the public benefit for 2180 El Camino will be in place for 50-100 years. Let's FIX IT NOW, even though this is a pain! Please consider this: Plow can you insert language to ensure a public benefit in this project in perpetuity? (a fine is not enough) `Why is it important to take steps to ensure a lasting public benefit? • Can you realistically predict a grocer will be in that space for that long? We don't know how the market or world will change. We especially can't guarantee that the grocer is extremely comparable to JJ&F. • A fine, even $2000/day, does not address the zoning violation or correct it. It just issues a penalty. A penalty does is not zoning compliance. • People wanted JJ&F. A grocer would be nice, but it's not clear, 5 years later, that a grocery store is the primary public benefit value the community wants. I know you hate to read that, but it's possible. tiere are options: Please do not pass the Motion as you drafted last week. The sentiment of giving clear guidance is helpful, but does not address the core issues with this project. To ensure we have time to revisit these issues, just Extend the deadline to March 31st during which the public benefit agreement will be revisited between the City and the Developer. Include terms of the extension by the end of December, 2014. Ifyou want to include language to support a public benefit in the current motion, -Require that an acceptable grocer be found by X date, or the zoning will lapse. It's not that a grocer is not possible, but it is not possible on the terms the Developer wants to offer (rent, etc). - Require not just fines but a substitute public benefit (to be negotiated). You can't keep polluting, for instance, and paying a fine. The pollution needs to stop, and a fine is paid. So if a grocer fails, a fine is paid and they need to find a substitute public benefit. - Any fines must be adjusted for inflation! II) Please offer revised language in the public benefit agreement (by the end of December). You have already been revising the original ordinance. It's worth making this right now (or asking your staff to do their best) or we will end up with something no one really wants. Revise the public benefit agreement to: - If it is to be a grocer, that there is flexibility in the qualification. (or do a quick survey to get an updated sense of wit would be valuable) ******** November 24, 2014 - Ensure that if the grocer fails, the public benefit is maintained with that square footage (or at least 5000 SF). This would have to be worked out. - Any fines collected must be adjusted for cost of living and must go to the neighborhood in support of space -related public benefit projects. C) If you do not want to revise the Motion or public benefit agreement, let the Rezoning lapse. Remember that the Developer is earning $5-7 million, if not more, because of this zoning change, and many of those benefits need to come to the community. We are in dire need of public benefit, now more than ever. Please advocate on our behalf! You are not a mediator between the public and the developer - Let's not make this a bad deal for many. I cannot attend tonight because I am going to PreSchool Family but I am happy to talk in more detail with anyone on your team. I know there are much bigger issues (like climate change, the skyrocketing rents here) so I hope your staff can help with this, or I am happy to do what I can. Warmly, Mary Jane 4152699079 (do something my daughter will enjoy when she's grown!) Dear City Council, I've recently gotten involved in the 2180 el Camino location because I live 2 blocks from there and would really love to make sure it offers real community benefit. I am still getting up to speed but I think a modification to the agreement could make it much more easily enforceable. Along with other Transition Palo Alto members, I am recommending the following: 1) Require that the 'public benefit' space at 2180 EI Camino revert to the City of Palo Alto (for community space) at a reduced rate if the grocery store fails.. Why? • This requirement will ensure a lasting community benefit. It would be much more enforceable and lasting than a grocery requirement. It is impossible to enforce a Landlord leasing to itself, as is the case with the plan for the grocery store. As you know, the 'public benefit' process is problematic and is currently under review because of some of its limitations. • Market conditions make it difficult for a market to succeed, so we need a contingency plan that preserves a public benefit. Alma Plaza has taught us a lot about this issue. • If the grocery store fails, low-cost or free community space is desperately needed in the Cal Ave area. DETAILS: Market conditions: When this agreement was made, it was 2009, JJ&F was still in business and we did not have the Alma Plaza experience. Now there are other conditions (such as access) that may have led to Miki's market failing, but we know here it is going to be very challenging for any sizable market to succeed. Trader Joe's has opened and taken considerable business from Stanford students that JJ&F once had, and the community has come to rely on mollie stone's and country sun as well now that JJ&F has been gone for several years under its original owner (and last year under its subsequent). Value of reverting to City for community space: If you establish a plan that the lease reverts to the City if the market fails, we will be assured the building will have a lasting public benefit. There is a dire shortage of freehow cost community space in the California Ave area. The College Terrace library is small and open only daytime hours, and many of us, especially Transition Palo Alto, relied on WorldCentric (formerly at 2180 El Camino) for many film screenings, potlucks and gatherings. The future of our community depends on community space to support public goods and the betterment of the whole community. Transition Palo Alto has only been able to find church space far from CalTrain now that WorldCentric has closed. It is important to have non- sectarian space. OR 2) Revert to the original Neighborhood Commercial zoning which is more appropriate for this space and given current market conditions. Sincerely, Mary Jane Marcus College Terrace Resident & Transition Palo Alto Member (415)269-9079 Carnahan, David CITY OF PALO ALTO. CA rPI('g r:rfli r From: Anthony Cardott <acardott@gmail.com> lit DEC -8 AM 8:12 Sent: Friday, December 05, 2014 4:04 PM To: Council, City Subject: Comments to the VTA on the El Camino Real BRT DEIR/EA Palo Alto City Councilors 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. 1 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, Anthony Cardott 327 Willow San jose, CA 95110 Carnahan, David CFTY GF PALO ALTO, CA Tor Pi 'RK'S QE lCE From: mike wood <michaelpwood83@gmail.com> 114 DEC —8 AM 8: 1 1 Sent: Saturday, December 06, 2014 2:31 PM To: ECBRT@vta.org; Council, City; Council@sunnyvale.ca.gov; citycouncil@mountainview.gov; MayorAndCouncil@santaclaraca.gov; council@losaltosca.gov; mayoremail@sanjoseca.gov Subject: Comments to the VTA 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, Michael Wood Carnahan, David CITY OF PALO ALTO. CA f iTY ri fRK'q ric-rtor From: Janani Dhinakaran <janinthesky@gmail.com> Ile DEC -8 AM 8: I I Sent: Saturday, December 06, 2014 5:24 PM To: Council, City Subject: Comments to the VTA on the El Camino Real BRT DEIR/EA Palo Alto City Councilors 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) - And plant more trees in the central area to increase green cover and make ECR a beautiful road. 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, Janani Dhinakaran 870 E El Camino Real Apt 215 Sunnyvale, CA 94087 Carnahan, David CITY OF PALO ALTO. CA CITY CLERK'S OFFICE From: Joel Myrick <joeymyrick@yahoo.com> { 4 DEC —8 AM 8 1 Sent: Saturday, December 06, 2014 5:33 PM To: Council, City Subject: Comments to the VTA on the El Camino Real BRT DEIR/EA Palo Alto City Councilors 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, Joel Myrick 16695 church street Morgan hill, CA 95037 Carnahan, David CITY OF PALO ALTO, CA CITY CLERK'S OFFICE From: Peter Macdonald <pmacdonald@stanfordalumni.ord1 DEC -8 AM $: Sent: Saturday, December 06, 2014 9:29 PM. To: Council, City Subject: Comments to the VTA on the El Camino Real BRT DEIR/EA Palo Alto City Councilors 1 urge you and the Valley Transportation Authority to bring excellent public transportation to Silicon Valley with the El Camino Real Bus Rapid Transit Project. 1 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. '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, Peter Macdonald 3469 Janice Way Palo Alto, CA 94303 Carnahan, David CITY OF PALO ALTO, CA CITY CI FRK'S t3F ft -r From: Jeff Rensch <jrensch@gmail.com> 14 DEC -8 PM 12: 21 Sent: Monday, December 08, 2014 9:34 AM To: Council, City Subject: Comments to the VTA on the El Camino Real BRT DEIR/EA Palo Alto City Councilors 1 urge you and the Valley Transportation Authority to support the El Camino Real Bus Rapid Transit Project, by providing a dedicated lane all the way to Embarcadero. Traffic is the monster that is crippling all of our other attempts to improve and preserve our community. The BRT offers an excellent chance to people to get out of their cars and travel in another safer manner. Palo Alto workers who live in San Jose will be able to get here safely in a way that does not harm the environment. If losing that lane seems to be a sacrifice to some heavy-duty single occupant vehicle drivers, it is a sacrifice worth making for our future. thanks for listening, Jeff Rensch 741 Chimalus Dr Palo Alto, CA 94306 Carnahan, David CITCY F PALO ALT -MA From: Jeremy Caves <jeremy.caves@gmail.com> DEC PM ; 44 Sent: Monday, December 08, 2014 5:31 PM 14 To: Council, City Subject: Comments to the VTA on the El Camino Real BRT DEIR/EA Palo Alto City Councilors 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. Further, without these improvements, it is hard to see what exactly the future plan will be. Congestion is getting worse and worse on El Camino, turning El Camino into an increasingly unattractive place to live and work. Without BRT and a transformative and innovative solution to the problem, it is extremely difficult to imagine that El Camino will simply magically become less congested. Thank you for your work to make our region a safer, better, more vibrant place for us all to get around. Please consider making El Camino both more public -transit friendly and also biker friendly, for the benefit of our communities, our environment, and our future. Sincerely, Jeremy Caves Jeremy Caves 2454 Ash Street Palo Alto, CA 94306 CITY Of PALO ALTO, CA Carnahan, David CITY CLERK'S OFFICE From: Alisa Khieu <alisakhieu17@mittymonarch.com> 14 DEC -9 PM 1: 42 Sent: Monday, December 08, 2014 9:55 PM To: Council, City Subject: Comments to the VTA on the El Camino Real BRT DEIR/EA Palo Alto City Councilors 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. 1 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. 1 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, Alisa Khieu 1767 Aprilsong Ct San Jose, CA 95131 Carnahan, David CITY.. OF PALO ALTO, CA From: Sent: To: Subject: Palo Alto City Councilors Virginia Smedberg <virgviolin@hotmail.com> 114 DEC -9 PH 1: 4.2 Tuesday, December 09, 2014 1:24 AM Council, City Comments to the VTA on the El Camino Real BRT DEIR/EA 1 urge you and the Valley Transportation Authority to bring excellent public transportation to Silicon Valley with the El Camino Real Bus Rapid Transit Project. Firstly, I believe in public transit, and I take it whenever it is going where I am (often along w/ my bike to make the end connections better). Therefore, I urge you to create the best public transit system you can, which will encourage more people to use it. 1 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. 1 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, Virginia Smedberg 441 Washington Ave Palo Alto, CA 94301 Carnahan, David From: Sent: To: Subject: Palo Alto City Councilors CITY OF PALO ALTO, CA rITY fU RRi 'g ctgrteT Andrew Gallatin <gallatin@gmail.com> Tuesday, December 09, 2014 9:13 AM Council, City Comments to the VTA on the El Camino Real BRT DEIR/EA I4 DEC -9 PM 1:42 I urge you and the Valley Transportation Authority to halt the El Camino Real Bus Rapid Transit Project. 1 strongly urge VTA to NOT Incorporate bus -only lanes in the El Camino Real plan. If we convert traffic lanes to bus -only lanes on El Camino Real, we will tie traffic in knots, and make an already miserable commute far worse. Thank you for stopping this horribly misguided project. Sincerely, Andrew Gallatin 532 Thompson Ave Mountain View, CA 94043 Carnahan, David CITY CLPALO K S ALTO, F �CEA From: Michelle Marvier <mmarvier@scu.edu> 14 DEC -9 Pty 1: 42 Sent: Tuesday, December 09, 2014 11:16 AM To: Council, City Subject: Comments to the VTA on the El Camino Real BRT DEIR/EA Palo Alto City Councilors 1 urge you and the Valley Transportation Authority to bring excellent public transportation to Silicon Valley with the El Camino Real Bus Rapid Transit Project. 1 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, Michelle Marvier 3362 Rayanna Ave. Santa Clara, CA 95051 Carnahan, David Grit vOri PALO OFFI t From: Ian McCluskey <ianjmccluskey@gmail.com> }� DEC —9 i • 42 Sent: Tuesday, December 09, 2014 1:36 PM To: Council, City Subject: Comments to the VTA on the El Camino Real BRT DEIR/EA Palo Alto City Councilors 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. 1 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, Ian McCluskey 471 Madison St. Santa Clara, CA 95050 Carnahan, David CITY OF PALO A. T©, GA CITY CLERK'S OFFICE From: Virginia Matzek <vamail@aol.com> 14 DEC -9 PM 4: 32 Sent: Tuesday, December 09, 2014 2:07 PM To: Council, City Subject: Comments to the VTA on the El Camino Real BRT DEIR/EA Palo Alto City Councilors I'm a Santa Clara resident who strongly supports bus -only lanes and dedicated bike lanes on El Camino Real. I've just spent the past few months living in Brisbane, Australia, where the city transit system incorporates dedicated bus -only laneways. The busways make it faster for my kids to get to school by bus and walking than it would be for me to drive them on congested city streets. As a result, they have become committed transit users. They've actually said, "Why don't we have this at home?" 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). As a cyclist and Caltrain user who has been turned away at the Caltrain station because the cars had reached their bike capacity, I know how important it is for cyclists to have a Plan B for commuting. Bike lanes and more bikes on fast buses would help a lot. thanks! Virginia Matzek 786 Jefferson Santa Clara, CA 95053 Carnahan, David CITY OF PALO ALTO, CA CITY CLERKS OFFICE From: Sent: To: Subject: Neilson Buchanan <cnsbuchanan@gmail.com> Monday, December 08, 2014 1:11 PM City Attorney; Council, City; City Mgr College Terrace grocery store negotiations 14 DEC -9 PM I.43 Last week I observed the Council discussion and later discovered that the Council meeting was not video recorded. So I cannot fact check my two opinions below. The Council really did not address the root cause of the problem. The problem is that an unreasonable condition was placed on the property years ago. All parties (citizens, neighbors, city staff and developer) agreed to a term that in retrospect may be serve a sustaining community benefits. The condition should have been for retail space including but not limited to a grocery store. Five years later we have reasonable doubt if a comparable grocery store is viable financially. Retail trends are too dynamics to make a solid prediction about financial viability even with top level management. Councilperson Holman clearly made reference to this issue. My first opinion is that the Council did not devote sufficient analysis to the root cause. My second opinion is that the Council meeting avoided the only long-term solution. Councilperson Schmid clearly stated that the Council had a clear evaluation of the public benefit value. I urge the Council to direct staff to negotiate the strongest position possible for the payment of "$2000 a day" in the event that a grocery store is not operated in perpetuity. Here are provisions that would guarantee public benefit in the event of a grocery "default". 1. Only one 6 month period should be granted to re-establish operations in the event of a failure 2. The $2000/day penalty must be indexed to the Bay Area Cost of Living. 3. The penalty must be payable on a predetermined schedule, ie end of each month. 4. The penalty cannot be voided for any reason such as change of owners, bankruptcy, etc. 5. The property owner could be permitted to "pay off' the value of the $2000+ daily penalty in a properly calculated lump sum. The current present cash value of the penalty could be between $5 and $10 million dollars. The public benefits established by the property owners' agent Mr. Baer is a very large sum of money deserving rigorous stewardship by the Council. Due to family priorities, I will be unable to make this remarks in person to the Council. Carnahan, David CITY OF PA O, CA CITY CLERKS OFFICE From: Annette Ross <port2103@att.net> Sent: Thursday, December 04, 2014 8:46 AM To: Council, City Subject: College Terrace Centre and the 12/1 Meeting 14 DEC -8 AID 8: 15 What really happened at City Council on Monday night? I was there so I know that the proceedings became chaotic with numerous side conversations on the dais and conferences with the City Clerk and the Applicant's lawyer being allowed back to the podium out of order (and to make a disparaging remark about Miki Werness that went unchallenged) and the public being allowed to observe but not comment. It was, to say the least, foggy. In the midst of that fog I think you approved an amendment that substantially alters the original terms of the PC approved in January 2010. Is that the outcome of what you did? Was that your intent? Have you essentially eliminated the opportunity for public review and comment? Can you really make such substantive changes w/o allowing the transparency of a fair hearing? One salient take away from that meeting is that it appears that Staff doesn't take the time to review information sent to them from the public. If they did, doesn't it stand to reason that they'd have come to the same conclusion you did about the proposed management team and not recommend approval? What is really going on here? I think there need to be some fundamental changes to the way business is done. At the very least, Council meetings should not be chaotic and important decisions should not be made under the pressure of meeting fatigue or issue fatigue. I was astounded to see that a major development was on the agenda along with an issue involving an Eichler neighborhood and the RPPP. One needn't live here long to know that any one of those issues could consume most of a CC meeting. Curiously, somebody knew to expect a crowd on Monday b/c there were dozens of folding chairs set out to provide extra seating capacity. I also think controversial items should not be on the consent calendar. Somehow, that feels sneaky and very much not transparent. An immediate improvement showing respect for the public would be reconsideration of decisions made on Monday that were made amidst confusion and at a late hour. I look forward to your reply. Annette Portello Ross Amherst Street CITY OF PALO ALTO City of Palo Alto (ID # 5302) City Council Staff Report Report Type: Action Items Meeting Date: 12/15/2014 Summary Title: Restriction of Smoking in Outdoor Areas and Inclusion of E- Ciga rettes Title: Policy and Services Committee Recommendation to Council for Adoption of an Ordinance Amending Chapter 9.14 (Smoking And Tobacco Regulations) of the Palo Alto Municipal Code to Establish New Smoking Restrictions for Outdoor Commercial Areas, Outdoor Eating Areas, Public Events, Work Sites and Service Locations; Include Penalty Escalation for Repeat Offenders; Require Cigarette Butt Receptacles and Signage Immediately Adjacent and Within Areas Covered by the Ban; and Include E - cigarettes From: City Manager Lead Department: Public Works Recommendation The Policy and Services Committee recommends that Council: 1) Adopt an ordinance to amend Chapter 9.14 (Smoking and Tobacco Regulations) of the Palo Alto Municipal Code, by establishing new smoking restrictions for outdoor commercial areas, outdoor dining areas, public events, work sites and service locations; include penalty escalation for repeat offenders; require cigarette butt receptacles and signage immediately adjacent and within areas covered by the ban; and include E - cigarettes (Attachment A); and 2) Refer further investigation of tobacco retailer licensing and indoor smoking restrictions to Policy and Services Committee for further consideration and action. Background At a presentation to the Policy and Services Committee on June 17, 2014 (Attachment B, Staff Report #4704), staff provided benchmarking information on City of Palo Alto Page 1 other jurisdictions' outdoor smoking ban ordinances in downtown cores as requested by a Colleague's Memo on November 18, 2013 (Staff Report #4257). According to the Centers for Disease Control and Prevention, cigarette smoking is the single most preventable cause of premature death in the United States. Cigarette waste is also a significant source of litter. Staff provided information from eight other jurisdictions and recommended consideration of a broader smoking ban beyond the area requested by the Colleague's Memo. After the staff presentation was made to the Policy and Services Committee, the Committee listened to members of the public who spoke about the impacts of cigarette litter on water quality and aquatic animals. The Committee discussed the recommendation for a survey prior to implementing the expanded outdoor smoking ordinance and directed that no survey was necessary. Staff has since reached out to the Palo Alto Downtown Business & Professional Association and the Stanford Shopping Center and obtained input on the smoking ordinance for outdoor commercial areas. While they were generally supportive of the ban, they requested consideration of a smoking area, designated both for visitors and employees. Such a consideration is included in the proposed ordinance. The committee moved the following: MOTION: Council Member Klein moved, seconded by Council Member Scharff, to recommend to the City Council adoption of (see Attachment C; Minutes of the committee Meeting, June 17, 2014): 1. The changes to the outdoor smoking restriction to be included in the ordinance: a) Increase the area covered to include "Regional/Commercial" areas (e.g.: Stanford Shopping Center); b) increase the area covered to include "Neighborhood Commercial" areas (e.g.: Alma Plaza); c) increase coverage to include all outdoor eating areas, public events, work sites and service areas (i.e. locations); d) include penalty escalation for repeat offenders; e) include e -cigarettes; and f) require cigarette butt receptacles and signage immediately adjacent and within areas covered by the ban. 2. That the indoor smoking restrictions and restrictions on sale of tobacco products and e -cigarettes: a) include e -cigarettes in current indoor restrictions; b) ban the sale of tobacco products and e -cigarettes at pharmacies. City of Palo Alto Page 2 3. Have Staff perform outreach and determine the community's views on banning smoking in multi -family residential units. Discussion At this time, staff recommends that the Policy & Services Committee recommend that City Council adopt the proposed ordinance (Attachment A), which addresses the expanded outdoor smoking restrictions in items 1 and 2 as listed above. Due to staff resourcing issues, outreach to pharmacies and multi -family housing landlords and tenants has not yet been possible. The restriction of sale in pharmacies can be addressed with tobacco retailer licensing (Attachment D, County information on Tobacco Retailer Licensing). Therefore, staff recommends that the required outreach be conducted as soon as possible, and both the restriction on sales and the ban of smoking in multi -family residential units return together to Policy and Services for further discussion and direction. Policy Implications The adoption of the proposed ordinance would further Comprehensive Plan polices: Policy N-5: Clean, Healthful Air for Palo Alto; and Policy N-6: An Environment Free of the Damaging Effects of Biological and Chemical Hazardous Materials. Resource Impact This ordinance will have a minimal impact on ongoing City staff time and financial resources depending on the level of enforcement and/or ongoing public information required by its implementation. It is anticipated that Police Officers or Code Enforcement Officers will respond to violations of the ordinance on a complaint basis. Staff anticipates providing public outreach to educate residents and businesses of the newly adopted policies. Educational materials and signage costs could be eligible for grant funding from the Santa Clara County Public Health Department and other public and private agencies. Environmental Review Provisions of this ordinance do not constitute a project under the Environmental Quality Act because it can be seen with certainty that no significant negative environmental impact will occur as a result of the amended ordinance. Attachments: City of Palo Alto Page 3 • A: Palo Alto Municipal Code Smoking Ordinance Revisions (DOCX) • B: Staff Report #4704 (PDF) • C: Minutes for June 17, 2014, Policy and Services Committee (PDF) • D: Santa Clara County Tobacco Retail Licensing Fact Sheet (PDF) City of Palo Alto Page 4 Attachment A "NOT YET APPROVED" Ordinance No. Ordinance of the Council of the City of Palo Alto Amending Chapter 9.14 (Smoking and Tobacco Regulations) of the Palo Alto Municipal Code to Establish New Outdoor Smoking Restrictions in Commercial Areas and Outdoor Dining, and to include Electronic Cigarettes 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) That the adoption of this Ordinance is necessary to protect the public health, safety and welfare for the reasons set forth in amended section 9.14.005. The purposes of this Ordinance are to ban smoking in commercial areas, all dining areas, and to include electronic cigarettes in the restrictions, in order to reduce the risks of second hand smoke and vapor, reduce litter, and enhance enjoyment of these areas. SECTION 2. Chapter 9.14 of the Palo Alto Municipal Code is hereby amended to read as follows: Palo Alto Municipal Code Chapter 9.14: Smoking and Tobacco Regulations 9.14.005 Purpose. The purpose of this Chapter is to: (a) Protect the public health, safety and general welfare by prohibiting smoking and use of electronic smoking devices in public parks, public places, service locations, city pool cars, child day care facilities, and some unenclosed eating establishments. (b) Ensure a cleaner and more hygienic environment within the city, reduce litter, and protect the City's natural resources, including creeks and streams. (c) Enhance the welfare of residents, workers, and visitors by reducing exposure to second hand smoke, which studies confirm can cause negative health effects in non-smokers. (d) Balance the needs of persons who smoke with the needs of nonsmokers, including children and youth, to be free from the discomforts and health threats created by exposure to second-hand smoke and vapor. (Ord. 5207 § 2, 2013) 9.14.010 Definitions. The following words and phrases, whenever used in this chapter shall be construed as defined in this section: (a) "Bar" means an area which is devoted to serving alcoholic beverages and in which serving food is only incidental to the consumption of such beverages. "Bar" shall include bar areas within eating establishments which are devoted to serving alcoholic beverages and in which serving food is only incidental to the consumption of such beverages. (b) "City pool car" means any truck, van or automobile owned by the city and operated by a city employee. City pool car does not include vehicles operated by the police department. (c) "Commercial Area" means an area, including all publicly owned sidewalks, alleys, parking areas, public places, outdoor dining areas, service areas, etc. within areas zoned in the City's Comprehensive Plan as regional/community commercial (including Downtown, California Avenue Business District, Town and Country, and Stanford Shopping Center) and Neighborhood Commercial. (ed) "Eating establishment" means a coffee shop, cafeteria, short-order cafe, luncheonette, sandwich shop, soda fountain, restaurant, or other establishment serving food to members of the public. Le) "Electronic smoking device" means an electronic and/or battery -operated device that can deliver an inhalable dose of nicotine to the user. "Electronic smoking device" includes any product meeting this definition, regardless of whether it is manufactured, distributed, marketed or sold as an electronic cigarette, electronic cigar, electronic cigarillo, electronic pipe, electronic hookah, electronic vape, vaporizer or any other product name or descriptor. (Elf) "Employee" means any person who is employed by any employer in consideration for direct or indirect monetary wages or profit. (eg) "Employee eating place" means any place serving as an employee cafeteria, lunchrooms, lounge, or like place. (h) "Employer" means any person who employs the services of an individual person or persons. (gi) "Enclosed" means either closed in by a roof and four walls with appropriate openings for ingress and egress or not open to the sky due to a cover or shelter consisting of a tarpaulin, tent structure or other impermeable or semi -permeable materials or fabric. (hi) "Motion picture theater" means any theater engaged in the business of exhibiting motion pictures. (k) "Public Event" means events open to the general public, including but not limited to a farmers' market, parade, craft fair, festival, or any other such event. (1l) "Public places" means enclosed areas within publicly and privately owned buildings, structures, facilities, or complexes that are open to, used by, or accessible to the general public. Public places include, but are not limited to, stores, banks, eating establishments, bars, hotels, motels, depots and transit terminals, theaters and auditoriums, enclosed sports arenas, convention centers, museums, galleries, polling places, hospitals and other health care facilities of any kind (including clinics, dental, chiropractic, or physical therapy facilities), automotive service centers, general business offices, nonprofit entity offices and libraries. Public places further include, but are not limited to, hallways, restrooms, stairways, escalators, elevators, lobbies, reception areas, waiting rooms, indoor service lines, checkout stations, counters and other pay stations, classrooms, meeting or conference rooms, lecture rooms, buses, or other enclosed places that are open to, used by, or accessible to the general public. (fm) "Service locations" means those enclosed or unenclosed areas open to, used by, or accessible to the general public that are listed below: (1) Bus, train and taxi shelters; (2) Service waiting areas including, but not limited to, ticket or service lines, public transportation waiting areas, and public telephones; (3) Areas within twenty-five feet of the entrance or exit to an enclosed public place, where smoking is prohibited, except when the public place is closed, between ten p.m. and six a.m., or when the entrance or exit is for the exclusive use of employees and not accessible to the general pub -lie; (4) Areas in dedicated parks or other publicly accessible areas that are within twenty-five feet of bleachers, backstops, or play structures. (kn) "Smoking" means the combustion of any cigar, cigarette, tobacco or any similar article or the use of an electronic smoking device. (lo) "Tobacco product" means any substance containing tobacco leaf, including but not limited to cigarettes, cigars, smoking tobacco, and smokeless tobacco. Tobacco product shall also include nicotine, vapor or any other product contained in or produced by electronic smoking devices. (mp) "Tobacco store" means a retail store utilized primarily for the sale of tobacco products and accessories and in which the sale of other products is incidental. (nN) "Tobacco vending machine" means any electronic or mechanical device or appliance the operation of which -depends upon the insertion of money, whether coin or paper bill, or other thing representative of value, which dispenses or releases a tobacco product and/or tobacco accessories. (r) "Vapor" means aerosol produced from use of an electronic smoking device. (es) "Workplace" means any enclosed area of a structure or portion thereof used as a place of employment as well as unenclosed workplaces, such as outdoor construction sites. (Ord. 52.07 § 3, 2013: Ord. 4294 § 2, 1995: Ord. 4164 § 2 (part), 1993: Ord. 4056 § 4 (part), 1991) 9.14.020 Smoking prohibited - s —Enclosed Places Smoking and the use of electronic smoking devices is prohibited in all public places, unless such place is exempted pursuant to Section 9.1'1.070. the Enclosed Areas of the following places within the City of Palo Alto, except in places subject to prohibition on smoking contained in Labor Code section 6404.5, in which case that law applies (1) Workplaces; (2) Public places; Any places exempted by the California smokefree workplace law (Labor Code Section 6404.5(d)) are not exempt under this chapter. Smoking is prohibited by this chapter in all places exempted by that State law, except as provided in 9.14.070. (Ord. 4056 § 4 (part), 1991) 9.14.025 Smoking prohibited - Service -locations. Unenclosed Areas Smoking is prohibited in all service locations, except while passing through the service area on the way to another destination. (a) Smoking and the use of electronic smoking devices in all unenclosed areas defined as Service Locations shall be prohibited, including a buffer zone within 25 feet from any doorway, window, opening, crack, or vent into an Enclosed Area in which Smoking is prohibited, except while the Person Smoking is actively passing on the way to another destination and provided Smoke does not enter any Enclosed Area in which Smoking is prohibited. (b) Smoking and the use of electronic smoking devices is prohibited in unenclosed eating establishments and bars. (Ord. 4164 § 3, 1993) 9.14.030 Smoking prohibited - City pool cars. Smoking and the use of electronic smoking devices is prohibited in all city pool cars. (Ord. 4056 § 4 (part), 1991) 9.14.035 Smoking Prohibited - Public Parks and Public Events. Smoking and the use of electronic smoking devices is prohibited in all parks, including at public events. (Ord. 5207 § 4, 2013) 9.14.040 Smoking prohibited - Child day care facilities. Smoking is prohibited in a private residence which is licensed as a child day care facility within the meaning of Health and Safety Code Section 1596.750 and Section 1596.795 and amendments.during the hours it is operated as a child day care facility and in those enclosed areas where children may be exposed to smoke. (Ord. 4056 § 4 (part), 1991) 9.14.050 Fifty-pereent-of (a) Smoking is prohibited in a designated contiguous portion of not less than fifty percent of the unenclosed seating area of an eating establishment. (b) Every eating establishment shall at all times designate, and identify by posting signs pursuant to Section 9.14.100 or by placing table top notices, a contiguous portion of the unenclosed seating area as a nonsmoking area. (Ord 4056 § n (p rtl i 99i Smoking prohibited — Commercial Areas and Public Events. Smoking and the use of electronic smoking devices is prohibited in commercial areas, except places where smoking is already prohibited by state or federal law, in which case those laws apply. This prohibition includes public events held on public streets. A shopping center may establish a designated smoking area that is at least 25 feet away from any openings and includes receptacles to control litter. 9.14.060 Reserved.* * Editor's Note: Former Section 9.14.060, Regulation of Smoking in the Workplace, previously codified herein and containing portions of Ordinance Nos. 4056 and 4164 was repealed in its entirety by Ordinance No. 4294. 9.14.070 Exemptions. The following places and workplaces are exempt from Section 9.14.020: (a) Bars to the extent and in the manner provided in California Labor Code Section 6404.5; (a) Smoking at theatrical production sites is not prohibited by this subsection if the theater general manager certifies that smoking is an essential part of the story and the use of a fake, prop, or special effect cannot reasonably convey the idea of smoking in an effective way to a reasonable member of the anticipated audience. This exception will not apply if minors are performers within the production. (b) Bingo games, licensed pursuant to the Palo Alto Municipal Code, which do not permit access by minors under eighteen years of age; (c) n .,., propert., „ e or leased by ther g v rt-ai ., o . (dc) A fully enclosed room in a hotel, motel, other transient lodging establishment similar to a hotel, motel, or public convention center which is being used entirely for a private function and which is not open to the general public, except while food or beverage functions are taking place, including setup, service, and cleanup activities, or when the room is being used for exhibit purposes, sixty-five percent of the guest rooms in a hotel, motel, or similar transient lodging establishment, and rooms within private residences when not operated as a family day care home; (ed) Tobacco stores with private smokers' lounges meeting the requirements of the applicable portions of subdivision (d)(4) of Labor Code Section 6404.5. (Ord. 4294 § 3, 1995: Ord. 4164 § 2 (part), 1993: Ord. 4056 § 4 (part), 1991) 9.14.080 Location of tobacco vending machines. (a) No person shall locate, install, keep or maintain a tobacco vending machine except in a place which under state law is not lawfully accessible to minors. (b) This section shall become effective ninety days after its enactment. Any tobacco vending machine not in conformance with this section upon its effective date shall be removed. (Ord. 4056 § 4 (part), 1991) 9.14.090 Display of tobacco products for sale. No person shall display or offer tobacco products for sale except in an area, or from within an enclosure, which physically precludes the removal of the tobacco products without the assistance of the person authorizing such display or offer, or an employee of such person. (Ord. 4056 § 4 (part), 1991) 9.14.100 Posting of signs required. With the exception of service locations, wherever this ordinance prohibits smoking, conspicuous signs shall be posted so stating, containing all capital lettering not less than one inch in height, on a contrasting background. Signs of similar size containing the international "no smoking" symbol consisting of a pictorial representation of a burning cigarette enclosed in a red circle with a red bar across it may be used in addition to or in lieu of any signs required hereunder. Such signs shall be placed by the owner, operator, manager, or other persons having control of such room, building, or other place where smoking is prohibited. Signs placed at each entrance of buildings in which smoking is totally prohibited shall be sufficient. Such signs shall make clear that the smoking prohibition includes the use of electronic smoking devices. (Ord. 4294 § 4, 1995: Ord. 4164 § 2 (part), 1993: Ord. 4056 § 4 (part), 1991) 9.14.110 Enforcement. Pursuant to Section 6 of Article IV of the Palo Alto City Charter, the city manager is hereby granted authority to enforce the provisions of this chapter and Labor Code Section 6404.5. (Ord. 4294 § 5, 1995) 9.14.120 Public nuisance. Any violation of this chapter is a public nuisance and may be abated in accordance with Chapter 9.56 of the Palo Alto Municipal Code and/or Code of Civil Procedure Section 731. (Ord. 4056 § 4 (part), 1991) 9.14.130 Violation to be misdemeanors. Violation of any provision of this chapter shall be a misdemeanor punishable as provided in this code. Violations shall be punishable by: (1) A fine not exceeding $250 for the first violation (2) A fine not exceeding $300 for the second violation (3) A fine not exceeding $500 for each additional violation within one year (Ord. 4056 § 4 (part), 1991) CITY 0 - PALO ALTO City of Palo Alto (ID # 4704) Policy and Services Committee Staff Report Report Type: Agenda Items Meeting Date: 6/17/2014 Summary Title: Smoking Ordinance Revision Title: Recommendations for Expansion of City Smoking Ban in the Downtown and California Ave Business Districts; Including Benchmarking Data and Policy Discussion to Possibly Include Additional Areas or Restrictions on Sales and Indoor Smoking From: City Manager Lead Department: Public Works Recommendation Staff recommends that the Policy and Services Committee: 1. Provide direction to staff on conducting outreach for the proposed outdoor smoking ordinance options; 2. Review the proposed options for developing an expanded outdoor smoking ordinance; and 3. Review the proposed options for an expanded indoor smoking ordinance and restrictions on the sale of tobacco products and e -cigarettes as future changes to the ordinance. Background In August 2013, the City Council approved a ban on smoking in all public parks and open nature preserves, including the City golf course, and increased the no - smoking buffer zone near public building entrances from 20 to 25 feet. In order to provide clarity on the City's current ban and make it easier to enforce, based on a Colleague's Memo on November 18, 2013 (ID #4257), the City Council directed staff to: 1. Proceed to the Policy and Services Committee for policy discussion and recommendation to the full Council to expand the City's outdoor smoking ban in the Downtown and California Avenue Business districts. City of Palo Alto Page 1 2. Conduct outreach to downtown and California Avenue residents, businesses and property owners for input on expanding the City's current ban on outdoor smoking in certain areas, including California Avenue and University Avenue and possibly other streets in the downtown cores. 3. Benchmark other jurisdictions' outdoor smoking ban ordinances in downtown cores. Benchmarking with eight cities was completed in February 2014. Based on this benchmarking, staff recommends considering broadening the smoking ban as well as conducting outreach as presented in the Discussion section below. According to the Centers for Disease Control and Prevention, cigarette smoking is the single most preventable cause of premature death in the United States. In 1993, the United States Environmental Protection Agency (EPA) found secondhand smoke to be a risk to public health and classified secondhand smoke as a Group A carcinogen, the most dangerous class of carcinogens.1 Studies have shown that exposure to secondhand smoke outdoors can be significant.2 The American Lung Association (ALA) grades cities on the state of tobacco control. Palo Alto's grade for 2014 is a D.3 Another tobacco grading process by Santa Clara County Public Health resulted in a C grade for Palo Alto. The County's grading system relates primarily to ensuring tobacco is not sold to minors. Cigarette waste is also a significant source of litter. Save the Bay estimates that over three billion cigarette butts are littered in the Bay Area each year.4 Hundreds of cigarette butts are found at the Adobe and Matadero Creek clean-up sites every year in Palo Alto. Cigarette butts end up in our creeks and bay as well as our urban environments where they may be ingested by children or wildlife, contaminate fragile ecosystems, and cost local governments taxpayer dollars for clean-up. In addition to the potential to be ingested by wildlife, the filters are made of a non -biodegradable plastic and contain chemicals that leach into the water having potentially toxic effects on aquatic wildlife. Discussion 1 www.epa.gov/ncea/ets/pdfs/acknowl.pdf 2 http://news.stantord.edu/news/ZUU//may9/smoking-U5U9U/.html s www.lung.org/associations/states/California/assets/pdfs/sots-2014-county-grades/santa-Clara-county.pdf 4 http://www.savesfbay.org/sites/default/files/images/ButtFreeBay%201nfographic%208.5x11.pdf City of Palo Alto Page 2 Benchmarking was performed with eight cities that have banned smoking in their downtown cores. Staff compared the various ordinance goals and requirements, outreach conducted, specific tools used to reduce litter, enforcement and costs. Attachment B details the findings, which suggest that the City Council may wish to broaden the outreach relating to an expanded smoking ordinance to include the following issues: Expand the smoking ban area Based on the benchmarking, there are three considerations for possible expansion of the area covered by the ban: 1. Commercial Areas: Fremont, one of the latest cities to pass a smoking ordinance, banned smoking on commercial area sidewalks, which are defined as any walkway in front of, through, around or adjoining any property designated on the City's general plan land use diagram as city center, town center, general commercial, regional commercial or mixed use. Berkeley's smoking ordinance also restricts smoking on all commercially zoned sidewalks. The City Council could consider using the Comprehensive Plan designations of regional/community commercial and neighborhood commercial to define the area for which the smoking ban applies. Regional/Community commercial, in addition to downtown and California Avenue, would include Stanford Shopping Center and the Town and Country Shopping center. Neighborhood commercial would add all neighborhood shopping centers (Edgewood, Midtown, Charleston, Alma Plaza) and areas along El Camino and San Antonio Road. 2. Outdoor Dining: Most cities surveyed ban smoking in all outdoor dining areas. Palo Alto's current ordinance prohibits smoking in a designated contiguous portion of not less than fifty percent of the unenclosed seating area of an eating establishment. Staff recommends expanding this prohibition to all outdoor dining areas. 3. Additional streets downtown and at California Avenue: The maps included at the November 18, 2013 Council Meeting for downtown and California Avenue business district did not include areas where cigarette butts are most frequently found, including the round -about at the end of California Avenue, as well as areas on Ramona and Lytton. Staff recommends at a minimum to include the areas where cigarette butts are commonly found in the areas covered by the outdoor smoking ban. City of Palo Alto Page 3 All or some of these options could be included in an expanded smoking ordinance. Addressing Litter Seven out of the eight cities included in the benchmarking provide cigarette butt receptacles in the areas covered by the ban. Despite banning smoking, it is likely that smoking will still occur. In order to decrease smoking -related litter, cities have asked businesses to sponsor ash towers or installed tobacco receptacles themselves. Fremont and Berkeley require that ashtrays in no -smoking areas include signage stating "smoking prohibited by law -extinguish here." Staff recommends that receptacles be provided with signage to ensure litter issues are addressed. In addition, the City of San Francisco instituted a 20 cent clean-up fee on every pack of cigarettes sold within the City in 2009, which was based on the cost of clean-up in the city. The passage of Proposition 26 in 2010 imposed a two-thirds majority requirement to pass fees. This could affect the options for pursuing such a fee at the local level.5 American Lung Association (ALA) Score: Indoor Smoking Restrictions and Sale Several cities, including Walnut Creek, Fremont and San Rafael, state that a major goal of their smoking ordinance is to improve their ALA score. ALA rates three areas: • Smoke -free outdoor air: This item includes banning smoking in outdoor areas, including dining areas, entryways, public events, parks, service areas, sidewalks and worksites. Several of these items are already addressed in or proposed for Palo Alto's smoking ordinance. • Smoke -free housing: The three cities above include indoor smoking restrictions in their ordinances. Such bans address the issue of shared ventilation systems in multi -family housing where smoking in one unit can affect surrounding residents. Such bans have the additional benefit of fire risk reduction and lower costs for residential cleaning. • Reducing Sales of Tobacco products: This item includes tobacco retailer 5 http://greencitiescalifornia.org/best-practices/waste-reduction/SF cigarette-litter.html City of Palo Alto Page 4 licensing, restricting sales near parks and schools, banning sales in pharmacies. For example, San Francisco banned sale of tobacco in pharmacies, including grocery stores with pharmacies. Restricting smoking in multi -family housing and restricting sales, including tobacco retailer licensing, would likely be more controversial, would require additional public outreach and could be considered as a next phase to the effort to expand the smoking ban. Santa Clara County Public Health also grades cities relating to tobacco sales. Palo Alto's most recent draft grade (May 2014) is a C. The main item to improve Palo Alto's grade related the County's grading scheme would be tobacco retailer licensing. Enforcement Smoking laws are generally enforced through a complaint -based process; however, most cities have included other tools such as specific penalties in their ordinances. Palo Alto's current ordinance includes a penalty for any violation; however, unlike several other cities in the benchmarking list, the fines are not escalating with repeated offences. Palo Alto smoking ordinance penalties were recently increased to $250 (Staff Report #4627). Staff recommends considering the inclusion of escalation of enforcement in the ordinance as well as development of an enforcement plan. Electronic Cigarettes Several cities, including New York, Los Angeles and Fremont, have already included electronic cigarettes in their smoking restriction ordinances. Others, including San Francisco and Santa Clara County, are considering such bans. Palo Alto's ordinance refers to tobacco products and does not include e -cigarettes in any of the restrictions. Additional benchmarking is recommended, should the Committee direct inclusion of e -cigarettes in the restrictions. A first step could be to include a ban on e -cigarettes in pool cars and at City properties. Public Outreach Staff recommends conducting an on-line survey of all Palo Alto residents, business owners, and employees related to options beyond the Downtown and California Avenue business district smoking ban to gauge the support for various additional City of Palo Alto Page 5 outdoor smoking and sale restrictions, including: • Broadening the area of the ban to regional/community commercial • Broadening the area of the ban to neighborhood commercial • Broadening the area to all outdoor dining areas • Restricting sale of tobacco products near schools and parks • Prohibiting the sale of tobacco products in pharmacies • Including e -cigarettes in these restrictions If directed by the Policy & Services Committee, staff could also include gauging support for indoor smoking restrictions. This survey would be distributed electronically and advertised through news releases, presentation at meetings, and email lists. Summary of Recommendations 1) Provide any input to Staff on outreach (a survey) to businesses and residents on the recommendations in Number 2). 2) Staff recommends these changes to the outdoor smoking restrictions be considered: a) Increase the area covered to include "Regional/Commercial" areas (e.g.: Stanford Shopping Center), b) increase the area covered to include "Neighborhood Commercial" areas (e.g.: Alma Plaza), c) increase coverage to include all outdoor eating areas, d) include penalty escalation for repeat offenders, e) include e -cigarettes, and f) require cigarette butt receptacles and signage immediately adjacent and within areas covered by the ban. 3) Staff recommends these changes to the indoor smoking restrictions and restrictions on sale of tobacco products and e -cigarettes be considered: a) include e -cigarettes in current indoor restrictions, b) ban the sale of tobacco products and e -cigarettes at pharmacies and at any establishments adjacent to parks and schools. Timeline Staff can produce a survey within one month and solicit responses over the summer months. Staff recommends bringing survey results back to the Policy & Services Committee in Fall 2014 with proposed ordinance language. Resource Impact City of Palo Alto Page 6 Developing and publicizing the survey and performing outreach to stakeholder groups will require City staff time. Attachments: • Attachment A: Minutes of Council Meeting November 18, 2013 (PDF) • Attachment B: Smoking Ordinance Benchmarking for Downtown Core Smoking Restrictions (DOCX) City of Palo Alto Page 7 Attachment A ,, LO of CITY OF PALO ALTO CITY COUNCIL PA ALTO MINUTES Special Meeting November 18, 2013 The City Council of the City of Palo Alto met on this date in the Council Conference Room at 6:08 P.M. Present: Berman, Burt, Holman, Klein, Kniss, Price, Scharff, Schmid, Shepherd Absent: CLOSED SESSION 1. A previous closed session has been removed. STUDY SESSION 2. Presentation to Council about Library Programs and Activities. Monique le Conge Ziesenhenne, Library Director, reported Main Library closed in May 2013 and Mitchell Park Library was located at a temporary site. She presented "Read" posters to Council Members. Posters would be located throughout libraries to promote reading. Karen Kinzel, Palo Alto Art Center, provided definitions for Makerspaces, an emerging trend in both libraries and museums. Teens needed a fun and safe place to actively express themselves with friends. Through a grant from the California State Library and donations, the Library Department and Art Center developed Make X. It premiered at the Palo Alto Art Center, then moved to the City Hall lobby, and would move to different community centers and libraries throughout the region. Staff scheduled teen mentors to train the public in use of equipment in Make X. Jenny Jordan, Library Youth Services Manager, reported the Summer Reading Program was the Library's largest program. Staff changed the Summer Reading Program to include children, teens, and adults. The number of participants increased again in 2013. Staff focused on the Springboard to Kindergarten Program to reach preschool children. She provided highlights of Library programs for children, teens, and adults. Page 1 of 28 City Council Meeting November 18, 2013 MINUTES Jessica Goodman, Senior Librarian for Information Technology and Collections, indicated the Creating Connections Program brought together teens and seniors for technology learning. Teens taught digital literacy skills to seniors through 20 interactive learning sessions. After the Creating Connections Program ended, teens continued to work one-on-one providing technology tutoring to older adults. The Library's digital collections continued to grow with eBooks, audio books, digital magazines, music, and free museum passes. Cheryl Lee, Senior Librarian, worked on programs, outreach, and partnerships. Customers determined the programs offered by the Library. The Library partnered with nonprofit agencies, schools, corporations, and businesses within the Palo Alto community. Approximately 500 children and parents attended Story Time weekly at the Library. Story Time was held at different locations in the community once a month. Other programs included baseball, Beer University, parenting skills, back -to -school swaps, and a Halloween costume swap. Staff participated in many outreach events each month. Ms. Ziesenhenne had plans for the new Mitchell Park Library. Collections would be expanded to include items of local interest and in international languages. The Library Advisory Commission, the Friends of the Palo Alto Library, and the Palo Alto Library Foundation focused closely on the Library. Council Member Burt was not familiar with many Library services. He asked if the Library was featured periodically on the homepage of the City's website. Ms. Ziesenhenne indicated Staff regularly issued press releases and utilized Facebook and Pinterest. Staff was working on a market segmentation study and a strategic plan to increase public awareness. Council Member Burt inquired whether Staff was utilizing communication tools supplied by the Palo Alto Unified School District (PAUSD). Ms. Ziesenhenne answered yes. Mayor Scharff noticed that book circulation had decreased slightly. He asked if the use of a temporary library location was responsible for the slight decrease. Ms. Ziesenhenne was surprised that circulation had not decreased more. Because Main Library closed in May 2013, she expected the circulation figures for the current fiscal year also to decrease. When Main Library and Page 2 of 28 City Council Meeting November 18, 2013 MINUTES Mitchell Park Library reopened, she hoped circulation figures would increase dramatically. Mayor Scharff inquired about other media. Ms. Ziesenhenne reported other media included CD ROMs and downloads. Personal computer use also decreased, probably as a result of residents utilizing their own devices. Mayor Scharff noted DVD circulation was strong, CD circulation decreased slightly, and audio book circulation also increased. Ms. Ziesenhenne explained that audio books could be downloaded, which increased circulation. Audio books were popular with commuters. Council Member Kniss inquired about downloading items to a Kindle and the process for downloading items. Ms. Ziesenhenne indicated Staff or a technology tutor could assist patrons with downloads. Each platform for eBooks had different capabilities and limitations. Instructions could also be found on the Library's website. Council Member Kniss inquired about limitations for downloading books to an eReader. Ms. Ziesenhenne reported borrowed items had a due date and would disappear from the eReader on the due date. Council Member Kniss asked if patrons could download the latest bestsellers. Ms. Ziesenhenne explained the eBook had to be made available by the publisher and the Library's vendor. Council Member Kniss reiterated that an eBook could be borrowed for three weeks, and then it would disappear from the eReader. AGENDA CHANGES, ADDITIONS, AND DELETIONS None CITY MANAGER COMMENTS James Keene, City Manager, announced the holiday tree lighting was scheduled for November 30, 2013. Staff was working closely with Neighbors Abroad to provide relief to Palo, Philippines. Aurora was successful lighted on November 16, 2013. Page 3 of 28 City Council Meeting November 18, 2013 MINUTES COUNCIL MEMBER QUESTIONS, COMMENTS, AND ANNOUNCEMENTS Council Member Klein attended the National League of Cities annual meeting in Seattle, Washington, the prior week. The League adopted a policy regarding global warming. Bellevue, Washington, had an extensive outreach program funded primarily by the faith community. Palo Alto needed closer collaboration with its faith community. Seattle's utility was developing algorithms for infrastructure improvements with respect to climate change. The League's finances and membership were improving. Vice Mayor Shepherd also attended the National League of Cities meeting. She attended sessions about the Smart City Program, the greenest building in the world, LED street lights, smart kiosks, and natural disasters. At the Center for Digital Government award dinner, Palo Alto won first place in the medium city category. Council Member Kniss stated the competition for Digital City awards was astonishing. James Keene, City Manager, added that the Center for Digital Government provided a national benchmarking model for cities. Palo Alto won after competing for only two years. Council Member Kniss encouraged Council Members to attend National League of Cities conferences. The 2014 annual meeting would be held in Austin, Texas. Mayor Scharff welcomed Boy Scouts. He attended the Santa Clara County Cities Association meeting, where Staff discussed fiber and big data. Council Member Schmid presented information regarding the Council of the Aging, now known as Source Wise. He was elected Secretary and Treasurer of the association. The Aurora opening the previous Friday was a fantastic event with a large crowd. He attended the opening of the only northern California American Girl store. Ronna Gonsalves of the City Clerk's Office was leaving the City's employ. ORAL COMMUNICATIONS Jerry Enderdall believed streets safe for children to bike to school would reduce traffic. He encouraged the Council to consider the bicycle boulevard program independent of the Maybell Project. Bicycle safety was a key issue on Maybell Avenue. Stephanie Munoz felt the Council would have won the Measure D election if the grant deadline had not come up just after the Council shifted Page 4 of 28 City Council Meeting November 18, 2013 MINUTES Arastradero traffic onto Maybell. Having made an issue of senior housing, the Council should purchase the Maybell property and construct senior housing. Chuck Jagoda recommended the Council not blame churches for not responding to the pilot car camping program. Churches did not have time to respond. Wynn Grcich questioned the need for nine Council Members when other cities with larger populations had only five Council Members. She gave the Council evidence that fluoridation was poisonous. The YouTube movie Thrive described the government's efforts to reduce the population. Gary Wesley reported the Santa Clara Valley Transportation Authority (VTA) proposed the use of boarding islands, signal preference, and bus -only lanes for Menlo Park and Mountain View. He believed Palo Alto would have bus - only lanes in the near future. Timothy Gray advocated for citizen participation regarding the City's budget. Additional City revenues should be used to balance the budget and reduce spending. Joe Hirsch requested a moratorium on all higher density development in Palo Alto until a comprehensive and competent land use and transportation study was completed. His request was supported by the recent vote on Measure D. The traffic and parking issues were unsustainable and unsupportable. MINUTES APPROVAL MOTION: Vice Mayor Shepherd moved, seconded by Council Member Kniss to approve the Minutes of October 17, 2013. MOTION PASSED: 9-0 CONSENT CALENDAR Council Member Holman registered a no vote on Agenda Item Number 7. Herb Borock reported Staff's response to Council Member Holman's question referred to the developer proceeding at his own risk if he began work after the second reading of the Ordinance. He would have preferred Staff's response to state it was against the law for the developer to begin construction until the effective date of the Ordinance. Council Member Schmid requested the City Attorney respond to Mr. Borock's comments. Page 5 of 28 City Council Meeting November 18, 2013 MINUTES Molly Stump, City Attorney, reported the effective date of an Ordinance was 31 days after the second reading. Construction should not proceed until that period of time passed. Any construction that did occur prior to the effective date was at the developer's own risk. James Keene, City Manager, felt the City Attorney responded to Council Member Schmid's question. Staff could not further elucidate the miscommunication. At the current time, Staff did not have a resolution as to the allegations. Council Member Schmid registered a no vote on Agenda Item Number 7. MOTION: Vice Mayor Shepherd moved, seconded by Council Member Kniss to approve Agenda Item Numbers 3-15. 3. Approval of the Fourth Amendment to Extend the Lease with Thoits Bros., Inc. at 285 Hamilton Avenue, Suite 100 for a Period of 32 Months and Approval of the First Amendment to Extend the Sublease with Survey Monkey at 285 Hamilton Avenue, Suite 280 for a Period Of 22 Months for Use by the City Development Center. 4. Approval of Amendment No. 2 to Contract # C09127499 with AssetWorks, Inc. in the Amount of $32,100 for a Total Contract Not to Exceed Amount of $268,210 for Cloud Hosting Solution and Maintenance for a One Year Term with the Option to Renew Four Additional Years for the City's FleetFocus and FuelFocus Fleet Transaction Management Systems. 5. Approval of a Contract in the Amount of $693,073 with Naturescapes for Improvements to Eleanor Pardee Park Project PE -12012. 6. Approval of a Contract Amendment with Envisionware, Inc., for an Amount Not to Exceed $463,000 for the Automatic Materials Handling System at the Main Library, For a Total Contract Not Exceeding $1,000,000 for the Main and Mitchell Park Libraries. 7. Ordinance 5224 entitled "Ordinance of the Council of the City of Palo Alto Amending Section 18.08.040 of the Palo Alto Municipal Code to Approve an Amendment to Planned Community (PC -5150) Mixed use Project to Allow Reconstruction of One of Two Historic Eichler Retail Buildings (Building 1), for a 3.58 Acre Site Located at 2080 Channing Avenue (Edgewood Plaza Mixed Use Project)" (First Reading: October 7, 2013; Passed 7-1 Holman no, Scharff absent). Page 6 of 28 City Council Meeting November 18, 2013 MINUTES 8. Adoption of Eight Ordinances: (1) Ordinance 5216 entitled "Ordinance of the Council of the City of Palo Alto Repealing Chapter 16.04 of the Palo Alto Municipal Code and Amending Title 16 to Adopt a New Chapter 16.04, California Building Code, California Historical Building Code, and California Existing Building Code, 2013 Editions, and Local Amendments and Related Findings;" (2) Ordinance 5217 entitled "Ordinance of the Council of the City of Palo Alto Repealing Chapter 16.05 of the Palo Alto Municipal Code and Amending Title 16 to Adopt a New Chapter 16.05, California Mechanical Code, 2013 Edition, and Local Amendments and Related Findings;" (3) Ordinance 5218 entitled "Ordinance of the Council of the City of Palo Alto Repealing Chapter 16.06 of the Palo Alto Municipal Code and Amending Title 16 to Adopt a New Chapter 16.06, California Residential Code, 2013 Edition, and Local Amendments and Related Findings;" (4) Ordinance 5219 entitled "Ordinance of the Council of the City of Palo Alto Repealing Chapter 16.08 of the Palo Alto Municipal Code and Amending Title 16 to Adopt a New Chapter 16.08, California Plumbing Code, 2013 Edition, and Local Amendments and Related Findings;" (5) Ordinance 5220 entitled "Ordinance of the Council of the City of Palo Alto Repealing Chapter 16.14 of the Palo Alto Municipal Code and Amending Title 16 to Adopt a New Chapter 16.14, California Green Building Standard Code, 2013 Edition, and Local Amendments and Related Findings;" (6) Ordinance 5221 entitled "Ordinance of the Council of the City of Palo Alto Repealing Chapter 16.16 of the Palo Alto Municipal Code and Amending Title 16 to Adopt a New Chapter 16.16, California Electrical Code, 2013 Edition, and Local Amendments and Related Findings;" (7) Ordinance 5222 entitled "Ordinance of the Council of the City of Palo Alto Repealing Chapter 16.17 of the Palo Alto Municipal Code and Amending Title 16 to Adopt a New Chapter 16.17, California Energy Code, 2013 Edition, and Local Amendments and Related Findings;" and (8) Ordinance 5223 entitled "Ordinance of the Council of the City of Palo Alto Repealing Chapter 15.04 of the Palo Alto Municipal Code and Amending Title 15 to Adopt a new Chapter 15.04, California Fire Code, 2013 Edition, and Local Amendments and Related Findings" (First Reading: October 21, 2013 PASSED: 8-0 Klein absent). 9. Approval of Amendment No. 1 to the City's Power Purchase Agreement with Ameresco San Joaquin, LLC to Extend the Landfill Gas Electric Generating Facility's Commercial Operation Date to January 31, 2014. 10. Budget Amendment Ordinance 5225 entitled "Ordinance of the Council of the City of Palo Alto In The Amount Of $125,000 For The First Year Funding Of A $250,000 Two -Year Agreement For Intensive Case Page 7 of 28 City Council Meeting November 18, 2013 MINUTES Management In Collaboration With The Housing Subsidies From The County Of Santa Clara." 11. Approval of a Contract With WatchGuard Video in the Amount of $296,470 and Additional Services of $8,530 for a Total Not to Exceed $305,000 for the Upgrade of Police Mobile In -Car Video System, Capital Improvement Program Project TE-11002. 12. Approval of a Contract in the Amount of $327,535 with MIG, Inc. for the Parks, Trails, Open Space and Recreation Master Plan Project PE - 13003. 13. Approval of a Contract with Ghirardelli Associates in the Amount of $638,599.82 for Construction Management Services for the California Avenue Transit Hub Corridor Streetscape Project. 14. Resolution 9383 entitled "Resolution of the Council of the City of Palo Alto Declaring Weeds to be a Public Nuisance and Setting December 9th, 2013 for a Public Hearing for Objections to Proposed Weed Abatement." 15. Recommendation from the Council Appointed Officers Committee to Approve Amendment No. 2 to a Consulting Contract with Sherry L. Lund Associates to Increase the Scope of Services and Cost by $10,000 for a Total Year -Two Cost Not To Exceed $61,850, to be Funded from the Council Contingency Fund. MOTION PASSED FOR AGENDA ITEM NUMBERS 3-6, 8-15: 9-0 MOTION PASSED FOR AGENDA ITEM NUMBER 7: 7-2 Holman, Schmid no ACTION ITEMS 16. Public Hearing: City Council Review of a Proposed Mixed -use Development on a 1.6 Acre Site Located at 3159 El Camino Real (between Acacia and Portage Avenues), Adoption of the Environmental Review Document (Initial Study and Mitigated Negative Declaration) and Approval of the Site and Design Review, CUP for Over 5,000 Square Feet of Office and Design Enhancement Exceptions Application (via Record of Land Use Action). The Proposed Four-story, 55 -Foot Tall, 74,122 s.f. Development Would Include Retail Space, Office Space, 48 Small Rental Residential Units, Two Zoning Concessions (Increased Floor Area and Reduced Parking Spaces) Under the State Page 8 of 28 City Council Meeting November 18, 2013 MINUTES Density Bonus Law, and Would Replace the Existing 900 s.f. "We Fix Macs" Commercial Building. Hillary Gitelman, Planning and Community Environment Director, reported the proposed project was consistent with the Comprehensive Plan and with zoning requirements. The proposal involved mixed -use development on a transit corridor in an area zoned for such development. The proposal would implement the Housing Element with respect to creating small residential units. A traffic study concluded that the proposal could contribute to a significant cumulative impact. A mitigation measure was included in the conditions of approval to address that impact. The proposal was first submitted to the City in January 2013 and had been reviewed by both the Planning and Transportation Commission (P&TC) and the Architectural Review Board (ARB). Staff recommended approval of the project. Russ Reich, Senior Planner, indicated the project was located on 1.6 acres on El Camino Real, bounded by Portage Avenue and Acacia Avenue. An application to merge four parcels was approved. The site was zoned Commercial Service (CS), and the Comprehensive Plan Land Use designation was also CS. The building would have a floor area total of 74,122 square feet. The proposed height of the building would be 55 feet above grade. The ground -floor level would include retail, restaurant, office, and commercial recreation uses. Forty-eight small residential units would be provided on the upper three levels. The proposal was compliant with El Camino Real Guidelines. The building setback along El Camino Real would allow for a minimum effective sidewalk of at least 12 feet. The project included surface and one level of below -grade parking for 216 vehicles. The new parking garage would connect to the existing below -grade garage on Portage Avenue. Three -level car stackers or puzzle lifts would be installed in the new garage. Vehicular access to the site would be provided exclusively on Portage Avenue via two curb cuts. All other existing curb cuts along El Camino Real and Acacia Avenue would be removed to increase pedestrian safety and to add onsite parking. Fifteen surface -level visitor parking spaces were proposed beneath the residential wing of the building. Because the project would provide 10 percent or 5 Below Market Rate (BMR) units, the applicant was entitled under State law to request one concession to the City's zoning requirements. The applicant requested a concession of 4,619 square feet of floor area. This amount was consistent with the draft Density Bonus Ordinance. When providing BMR units, projects were entitled by right to utilize the State's calculation for required parking for residential units. The State's calculation resulted in 31 fewer parking spaces than the City's Parking Ordinance. Otherwise the project was compliant with the City's parking requirements. The BMR units would provide low-income housing for five units within the project for a period of 30 years. The application Page 9 of 28 City Council Meeting November 18, 2013 MINUTES included two Design Enhancement Exceptions (DEE). The height limit for the CS Zone was 50 feet. The applicant proposed a DEE to exceed the 50 - foot height limit by 5 feet, for a total height of 55 feet. The additional 5 -feet of height would occur only at loft roofs. The Code allowed mechanical roof screens to exceed the 50 -foot height limit by 15 feet. Mechanical roof screens were proposed to be 5 feet tall. The exception was requested to improve the design of the project. Visually the additional height benefited the building design by creating a unified roof element and provided residential units with slightly more room. The DEE was not an exception for floor area. The second DEE was an alleviation to the build -to -line requirement. The CS Zone required that 33 percent of the building be built up to the setback on Acacia and Portage Avenues and 50 percent of the frontage on El Camino Real be at the setback line of 0-10 feet to create a 12 -foot effective sidewalk width. The length of the building wall along Portage Avenue would be approximately 149 feet. To meet the 33 percent build -to requirement, at least 49 linear feet of the building wall would need to be built to the 5 -foot setback requirement. To accommodate the extension of the residential balconies and the accessible ramp to the elevated plaza, the building would be built with a minimum 7 -foot 6 -inch setback rather than to the required 5 -foot setback. This request would result in a greater setback from the street. The CS Zone limited office uses to no more than 5,000 square feet per parcel, but allowed a parcel to exceed the limit through a Conditional Use Permit (CUP). Because the four parcels would be combined into one parcel, a CUP to exceed the 5,000 -square -feet limit for office space was included as part of the application. The total amount of office space proposed was 16,118 square feet, only 21.7 percent of the total floor area within the project. The amount of office square footage was similar to the amount of retail floor area and considerably less than the proposed residential floor area. Staff, P&TC, and ARB reviewed the application and recommended the Council approve the project. Public Hearing opened at 7:55 P.M. Heather Young, Fergus Garber Young Architects, stated the four parcels being joined were a garage, a surface parking lot, an existing building, and another surface parking lot. The project was mixed -use with a mixture of restaurant and retail, commercial recreation, commercial office, and residential. The second -story spaces facing El Camino Real would be double height. The corner of El Camino Real and Portage Avenue would remain open as an exterior plaza. The fourth floor facade was set back considerably from El Camino Real. Exterior balconies in the residential areas on all sides provided outdoor public space for residential units. Access to existing surface parking would be maintained. Access to below -grade parking would be located at 400 Portage Avenue. The mass of the building was opened up Page 10 of 28 City Council Meeting November 18, 2013 MINUTES with a pedestrian dining arcade and with a pedestrian portal to an interior courtyard. A second small portal was located along Acacia Avenue. The project incorporated the existing building, Equinox Gym. The 48 residential units would consist of studio and one -bedroom units, with a single two - bedroom unit. The project would connect to a new below -grade garage. She explained the operation of triple -stack car stackers. Randy Popp, Architectural Review Board Commissioner, reported the ARB reviewed the proposal for 3159 El Camino Real and addressed a wide spectrum of items. The ARB requested the applicant revise nine items at its first discussion. The applicant provided responses for the ARB's second discussion, and the ARB reviewed the responses and recommended approval of the project. Robert Moss felt the project was oversized and would negatively impact traffic and parking. Staff's estimate of car trips was low. The Council was not required to grant all concessions requested by the applicant. The project would also negatively affect traffic to and from Fry's Electronics. He wanted 1,100 square of office space eliminated from the project and more onsite parking. Marilyn Mayo generally opposed the density of the project. Increased density would impact traffic and parking. Rob Lansfield opposed the project because of the height of the proposed building. Art Liberman stated the Council should have a comprehensive area -wide traffic study prior to discussing new development projects. Traffic from one development extended well beyond the immediate area of development. Herb Borock urged the Council to reject the Mitigated Negative Declaration (MND), the application for a CUP, and the DEE. Additional traffic from office space and the lack of guest parking created significant impacts which were not mitigated. Therefore, approval of the MND violated the California Environmental Quality Act (CEQA). Applying the bonus floor area to the office space would have a significant impact on traffic. Tom Dubois asked the Council to return the project to committee to be considered comprehensively with other development projects in the area. The Ventura neighborhood deserved its own Comprehensive Plan. Traffic impacts to the neighborhood would be significant. Stephanie Munoz concurred with prior public comment. A density bonus was not appropriate, because residents did not want added density. Page 11 of 28 City Council Meeting November 18, 2013 MINUTES Joseph Hirsch felt the estimate of car trips generated by the project was low. The project would negatively impact traffic and parking. Residents did not desire increased development. Public Hearing closed at 8:29 P.M. Mayor Scharff requested Council Members disclose contact with the applicant and receipt of information not in the public record. Council Member Kniss inquired whether visits to the project site should be disclosed. Molly Stump, City Attorney, suggested Council Members disclose visits to the site in an abundance of caution. Council Member Kniss visited the project site, but had not talked with anyone involved with the project. Council Member Holman visited the site the previous day. Vice Mayor Shepherd visited the area frequently and was familiar with traffic patterns and other issues. She had not received any information or been in contact with the applicant with regard to the project. Council Member Berman also visited the area of the site frequently and visited the project site that day. Mayor Scharff also visited the project site that day. Council Member Klein visited the project site in the early afternoon and had no contact with the applicant. Ms. Young thanked the Council for its time and would be available to answer specific questions. Council Member Klein inquired about users' reaction to puzzle parking. James Keene, City Manager, indicated users in Berkeley adapted quickly. He did not recall receiving complaints from the public about puzzle parking. There would be a period of adaptation. Council Member Klein asked if people used them. Mr. Keene stated people did not park elsewhere to avoid puzzle parking. Page 12 of 28 City Council Meeting November 18, 2013 MINUTES Council Member Klein assumed the justification for granting a CUP was the proposed amount of office space would be less than the amount that could be allowed if the four parcels were developed individually. Ms. Gitelman concurred. The applicant could have developed the parcels individually and received more office space. Council Member Klein asked if merging the lots was not required. Mr. Reich explained the parcels would need to be merged because the building crossed property lines. Mr. Keene inquired whether the building could have been designed without crossing property lines and with greater density. Mr. Reich indicated a separate project could have been proposed for each parcel. Council Member Klein stated four separate buildings would have produced 20,000 square feet of office space; whereas, the proposed building contained approximately 4,000 square feet less. Mr. Keene reported the default existing entitlement could provide more density related to office use and a less appealing design. Council Member Klein understood under existing rules mechanical facilities could reach a maximum height of 65 feet. The proposed building reached a height of 55 feet with portions of the fourth floor reaching 55 feet to match the height of the mechanical facilities. Mr. Reich concurred. Ms. Gitelman explained that if the Council did not grant the exception, the building would still be 55 feet in height. The exception would allow part of the occupied area to extend to 55 feet in height. Council Member Klein believed extending the loft units to 55 feet did not increase the allowed square footage. If the Council denied the exception, the applicant could utilize the bonus density to make the building wider. Mr. Reich concurred. Mr. Keene asked if the applicant could propose more of a sheer wall fagade along El Camino Real under existing zoning. Mr. Reich answered yes. Page 13 of 28 City Council Meeting November 18, 2013 MINUTES Mr. Keene reported the intent of the design was to step the building back. Council Member Klein asked if extending the height limit to 55 feet changed the square foot budget. Mr. Reich responded no. Council Member Klein did not like the loss of local control under State mandates. He asked if the City was required to obey State mandates. Cara Silver, Senior Assistant City Attorney, reported that the applicant's proposal to deed restrict 10 percent of units for affordable housing legally entitled the applicant to one concession. The applicant requested a concession of floor area ratio (FAR) bonus. Because Palo Alto did not have a local Ordinance prioritizing concessions at the current time, existing State Density Bonus Law applied to the project and required a concession. Council Member Klein inquired whether the situation would change if the Council adopted a local Ordinance prioritizing concessions. Ms. Silver explained that the Regional Housing Mandate Committee recently recommended placing a percentage limitation on the use of an FAR bonus. She was unsure how the limitation would impact this project. Ms. Gitelman understood the Regional Housing Mandate Committee recommended use of the FAR bonus be limited to residential uses only. If the project was proposed after an Ordinance including that limitation was adopted, the applicant could not seek the additional FAR for commercial square footage without submitting to the process for changing the concession. Council Member Klein did not believe the density bonus was the only concession. He inquired whether the Council could require parking meet local requirements under the State mandate. Ms. Silver reported the State Density Bonus Law limited the City's ability to require additional parking if the applicant requested reduced parking. Council Member Klein asked if the applicant requested reduced parking. Ms. Silver replied yes. Council Member Klein inquired whether parking met State requirements and whether State requirements applied rather than local requirements. Page 14 of 28 City Council Meeting November 18, 2013 MINUTES Ms. Silver answered yes. The State requirement did not allow the City to impose additional parking requirements such as guest parking. Council Member Klein asked if that was clearly stated in State law. Ms. Silver indicated it was clear the City could not impose additional parking requirements. Council Member Klein inquired about the Council's discretion with respect to the project. Ms. Gitelman explained that the Council had no control over FAR and parking because of State requirements. The 55 -foot design exception was within the Council's discretion. If the Council did not approve the DEE, the building would remain at 55 feet in height; however, the proposed building would lose some of the proposed architectural features. Another item within Council discretion was the design exception for the setback; however, the Council expressed interest in having greater setbacks along streets. Council Member Klein inquired whether the Council's denial of the setback exception would allow the building to be closer to the street. Ms. Gitelman replied yes. The exception allowed the applicant to construct the building farther back from the street. Council Member Klein asked if the Council had any other areas of discretion. Ms. Gitelman indicated another area for Council discretion was the CUP for square footage. As Council Member Klein stated, the applicant would be allowed more square footage if it retained the four individual parcels. The Council also had discretion with respect to the MND. Staff prepared a CEQA document based on analysis and asked the Council to accept the document as part of the action. Council Member Klein inquired whether the applicant could redesign the project such that exceptions were not needed and thus not need Council approval. Mr. Reich reported a project with more than five dwelling units within a mixed -use project was required to submit to site and design review, which required P&TC and Council review. Council Member Klein asked if the Council would have any reason to deny the project in such a case. Page 15 of 28 City Council Meeting November 18, 2013 MINUTES Mr. Reich indicated the Council had discretion related to the particulars of the project. Mr. Keene stated the Council could alter design elements. MOTION: Council Member Klein moved, seconded by Council Member Price to approve the draft Record of Land Use Action approving: (1) A Mitigated Negative Declaration (MND), prepared in accordance with the California Environmental Quality Act (CEQA) and the Mitigation Monitoring Report; (2) The Site and Design Review application for a four story, mixed -use building (67,506 square feet of new floor area added to an existing 6,616 s.f. building) having a floor area ratio (FAR) of 1.06:1 on a 1.6 acre site (74,122 s.f. floor area:69,503 s.f. site area) to provide 48 apartment units, including five Below Market Rate (BMR) units, and office and retail uses, with structured parking facilities (at surface and underground) providing 216 parking spaces (including 11 puzzle lifts for 196 cars); (3) A Density Bonus concession permitting increased floor area for both residential and commercial components of the project in the total amount of 4,619 square feet; (4) A Conditional Use Permit (CUP) to allow 16,118 sq. ft. of office space on one parcel where the limit is 5,000 s.f., recommended by the Planning and Transportation Commission (Commission) on July 10, 2013; and (5) Design Enhancement Exceptions (DEEs) for five feet of additional building height and alleviation of the build to line by two and a half feet for a greater setback, recommended by the Architectural Review Board (ARB) on August 1, 2013. Council Member Klein explained the project was not a Planned Community (PC) Zone. The City had limited discretion with respect to the project. The applicant was not requesting a change in zoning. Many public speakers seemed to believe the Council had more power than it actually had. The Council had to follow State law. The applicant sought three small exceptions and followed existing zoning requirements. Council Member Price noted the impact stated in the traffic analysis and the mitigation stated in the MND. She asked who would be responsible for implementing the mitigation. Aaron Aknin, Planning and Community Environment Assistant Director, reported the applicant would be responsible; however, the City and Caltrans would determine when the intersection was altered. Council Member Price inquired about funding and timing of the change with respect to the City's Capital Improvement Program (CIP) projects. Page 16 of 28 City Council Meeting November 18, 2013 MINUTES Jaime Rodriguez, Chief Transportation Official, clarified that the mitigation for El Camino Real and Charleston Road was a signal timing modification. Caltrans would make the final decision whether to modify signal timing. Council Member Price asked if the Council had the ability to require a time period for the modification to be made. Jim Daiso, Kimley-Horn and Associates, reported the mitigation was a signal timing change, not a capital improvement. The impact was projected to occur in 2025. The Council could request the applicant submit a bond or escrow funds to perform the study and implement a modification of signal timing. The Council could require those actions when the applicant applied for a building permit. Council Member Price inquired whether Mr. Daiso made the same or other suggestions to other cities. Mr. Daiso indicated other cities also created accounts for miscellaneous traffic signal improvements wherein funds were placed for later use. Council Member Price asked if the City utilized a dedicated fund for traffic signal improvements. Mr. Rodriguez did not recall other projects that submitted funds for future traffic signal modifications. Staff could request Caltrans consider a signal modification. Staff could request the applicant provide funding for signal modification. The cost to retime the signal would be approximately $2,500 to $3,500. Council Member Price understood the project met the basic direction of the Comprehensive Plan. The project was well designed and addressed issues identified in the Housing Element. Residents of very small residential units and BMR units did not all own vehicles or multiple vehicles. The community needed a variety of housing products to address the broad range of housing needs. The setbacks added value to the design of the building. The project supported the El Camino Real Guidelines and basic concepts of the Grand Boulevard. Council Member Schmid favored the mixed -use project. The DEE was proposed for aesthetic reasons; however, the flat facade at the top was not a design enhancement. The traffic study indicated the project would generate approximately 850 car trips per day with no more than 100 trips during rush hour periods. He asked how the number of trips during peak hours was calculated. Page 17 of 28 City Council Meeting November 18, 2013 MINUTES Mr. Daiso noted a table within the traffic study demonstrated the calculation of car trips, and inquired about Council Member Schmid's source for the number of car trips. Council Member Schmid indicated Mr. Daiso presented the information to the P&TC. Mr. Daiso utilized a standard set of research statistics from the Institute of Transportation Engineers (ITE) as a starting point. He could adjust statistics depending upon local conditions. The project would generate approximately 893 trips per day, 89 trips in morning peak hours and 70 trips in the afternoon peak hours for all uses. Council Member Schmid recalled a few weeks prior the Council discussed a contract for an updated traffic study. The mandate to the contractor stated that ITE standards were unrealistic for a mixed -use downtown environment. However, the traffic study for this mixed -use project within a downtown environment utilized ITE standards. He asked which approach was correct. Mr. Rodriguez explained that the use of standards depended upon the type of project under evaluation. Council Member Schmid clarified that this project was mixed -use in a downtown environment. Mr. Rodriguez reported Staff began with ITE trip generation and considered resulting trip generation rates. At times, Staff would request the developer perform a comparative analysis with another location if rates were not consistent with ITE rates or if insufficient supporting data was provided. For this project, the various uses within the project had a substantial amount of supporting projects to validate use of ITE rates. Council Member Schmid referenced the MND regarding information sources for potential impacts. He asked if Staff could supply the detailed tables, both those accepted and not accepted. Mr. Daiso agreed that oftentimes ITE rates were not appropriate for urban land use. His estimates were 40 percent higher than ITE rates. Council Member Schmid inquired about the method for counting traffic at intersections and the time period when counts were performed. Mr. Daiso noted the impact would occur in 2025. He began with traffic counts obtained on typical Tuesdays through Thursdays and compared those counts with historical counts. Page 18 of 28 City Council Meeting November 18, 2013 MINUTES Council Member Schmid requested the specific dates the counts were made. Mr. Daiso explained a growth factor of 1.1 percent per annum was applied to the counts. He divided the total incremental change in growth over existing conditions by the number of years to reach an average annual rate of growth. The average annual rate of growth was then applied to traffic counts. Traffic counts were conducted November 7, 2012 between 7:00 A.M. and 9:00 A.M. and between 4:00 P.M. and 6:00 P.M. Council Member Schmid stated a number of nearby development projects were not online in November 2012, when the traffic counts were conducted. Cumulative impacts of the various development projects were significant. He inquired about the method for determining the actual growth of traffic within the City. Ms. Gitelman reported that the CEQA statutes and guidelines provided two methods to approach the question of cumulative impacts. Cumulative impacts could be analyzed by reviewing a list of projects or through a projections -based approach. The Santa Clara Valley Transportation Authority (VTA) model used the projections -based approach. The question should be whether the projections included in the model were sufficient to capture cumulative impacts. Obviously VTA believed that approach was appropriate for the area. Council Member Schmid asked if the Council had discretion to determine the approach used in traffic studies. Ms. Gitelman was aware that the City wanted better information and invested in an updated model that utilized different projections. The current project had been in review since January 2013. Staff utilized the best tool available at the time, the projections -based approach. Council Member Schmid inquired whether Staff was retaining annual traffic counts at key intersections to build a historical base. Ms. Gitelman indicated Staff was retaining counts; however, she did not know when they began. Council Member Schmid stated El Camino Real happened to be a key east - west corridor for traffic and schools. The intersection of El Camino Real and Charleston Road was critical to four schools. He asked which direction of traffic would receive an extended red light if the timing for a right turn was extended. Page 19 of 28 City Council Meeting November 18, 2013 MINUTES Mr. Rodriguez reported the specific recommendation was to increase the cycle length. In this case the green light would be extended on Charleston Road. Council Member Schmid asked if 4 seconds would allow one car to clear the intersection. Mr. Rodriguez reported 7-8 seconds were allowed for the first movement and 4 seconds for every vehicle thereafter. Council Member Schmid noted a traffic guard at the intersection could stop traffic for children to cross the street. The true cost of the mitigation would be the change to traffic. There were too many questions regarding the MND for him to support the Motion. Council Member Kniss felt the Zoning Compliance Table in Attachment C summed up the kinds of decisions the Council was making. The zoning for the project had been in place since the 1950s. The description of the project as being in a downtown area was not correct in her opinion. The architect for the project met the Council's interest in having setbacks to encourage vitality. The explanation for allowing the project to exceed the height limit was sufficient. The increase in FAR was small. Council Member Holman asked why there were no impacts noted for the intersection with Page Mill Road. Mr. Daiso explained that the type of intersection and the number of phases for the intersection were factors. In some instances, a small increase in traffic would generate a large amount of delay at an intersection. In other instances, a large increase in traffic would general a small amount of delay. There was not a simple answer to Council Member Holman's question because of the several factors that affected the intersection. Council Member Holman proposed that the small increase in traffic would not have a significant impact, as defined by CEQA, to the already congested intersection. Mr. Daiso followed standards of significance. Everyone agreed to utilize the Congestion Management Program significant thresholds. For the intersection at Page Mill Road, the impact had to reach an explicit set of criteria. Council Member Holman liked the mix of uses, the retention and reuse of the Equinox building, the amount of open space, and the upper -story setbacks. She was challenged by the black -and -white elevations provided in the packet. She could not make findings with respect to transition and Page 20 of 28 City Council Meeting November 18, 2013 MINUTES compatibility with existing development and to adverse effects to type and intensity of planned uses in the area. She inquired whether double -height retail and office spaces in commercial zones were counted twice towards FAR. Mr. Aknin indicated they were counted only once. Council Member Holman asked if the added mass did not count towards FAR. Mr. Aknin replied yes. The double counting applied only in single-family neighborhoods. Mr. Reich reported that the single-family limitation was utilized to control the bulk and mass of the structure. In commercial development, the FAR limitation was utilized to limit the intensity of use. Council Member Holman inquired whether the square footage of the loft units would be different if they did not pop up. Ms. Young stated the units would be smaller. Council Member Holman referenced the DEE definition in the Code. Ms. Young explained that the floor area did not increase because of the height increase. The area was already allowed as part of the project. Council Member Holman requested clarification. Ms. Young indicated the extended height of 5 feet allowed the building to be set back further from El Camino Real and not as wide in other places. The building mass was made smaller by moving the floor area behind the roof screens. Ms. Gitelman explained that the proposed design pushed the FAR to the level of the roof screening. If the floor area was not placed behind the roof screens, it would be placed elsewhere. Council Member Holman did not believe it was an appropriate use of a DEE. Some of the street -facing elements were not pedestrian scale. Access to the courtyard was not inviting. She inquired about the status of the California Avenue Concept Plan and of the traffic model. Mr. Aknin reported the California Avenue Concept Plan would be presented to the P&TC for review on November 20, 2013. If the P&TC made a recommendation, then the California Avenue Concept Plan would be presented to the Council in early 2014. Page 21 of 28 City Council Meeting November 18, 2013 MINUTES Ms. Gitelman indicated Staff was working with the consultants on the model. Staff planned to present an overview of traffic analysis methodology to the P&TC in December 2013. Council Member Holman noted the roofline at the top of the fourth floor and at the screen was one continuous line along El Camino Real. That would make the building appear as one big mass. She requested future clarification with respect to allowing maximum concessions for proposed projects. The MND seemed to indicate that only the applicant would conduct an evaluation and implementation of the signal timing change. She inquired whether the language was standard. Ms. Gitelman reported City Staff would review the applicant's analysis, and language to that effect could be added to the Mitigation Monitoring and Reporting Program. However, Staff understood the meaning of the language. Council Member Holman inquired about Mr. Daiso's suggestion for obtaining funds from the applicant for the mitigation. Ms. Gitelman felt Mr. Daiso's suggestion was an option. The Mitigation Monitoring and Reporting Plan included an item which stated the property owner/developer would submit an evaluation for review by the City and Caltrans. Council Member Holman inquired about including a means to ensure funding was supplied. Ms. Gitelman had not seen signal timing changes incorporated as a mitigation, because that was an action taken as needed. Staff could determine a method to collect the nominal fee for future adjustments and apply it to signal optimization if the Council wished. Council Member Holman requested language to incorporate that change into the Motion. Ms. Gitelman would provide suggested language. Council Member Holman would not support the Motion. Council Member Berman inquired whether parking requirements in the State Density Bonus Law included guest parking and disability parking. Ms. Silver believed that was correct. Page 22 of 28 City Council Meeting November 18, 2013 MINUTES Council Member Berman wanted to know how the Council could require the project to provide the 16 parking spaces for guest parking. Ms. Silver reported the Council could not require those parking spaces. Council Member Berman felt the lack of guest parking was a negative impact. He was frustrated by State law superseding City parking Ordinances. He requested future projects provide different perspectives of buildings in order to illustrate the height of the building. Denial of the extension to the building height would be politically expedient; however, the building would be wider or closer to the street if the Council denied the extension. He inquired about the height of the We Fix Macs building. Ms. Young believed the height was approximately 35 feet. Council Member Berman stated the proposed building was an improvement over the existing buildings. He asked about proposed treatment of the existing sidewalk trees. Ms. Young reported the City Arborist requested the applicant increase the trees' exposure to the sky. The landscape architect proposed planting a hardy groundcover around the trees. Council Member Berman agreed with planting a groundcover that pedestrians could walk on. Vice Mayor Shepherd recalled that the building height would remain at 55 feet, and the building would be constructed to the sidewalk if the Council denied the request for extending the height. She inquired whether the Council had discretion to disallow the applicant from adding 15 feet to the building height for roof screens. Ms. Gitelman understood the project was entitled to 15 feet for roof screens. Vice Mayor Shepherd asked if the 15 feet was in addition to the building height of 50 feet. Ms. Gitelman responded yes. The applicant proposed 5 feet rather than 15 feet and requested building square footage be allowed in that additional 5 feet. Vice Mayor Shepherd believed the project was designed in response to community concerns. The BMR units would revert to market units at the end of 30 years. She inquired whether the Council could secure the BMR units in perpetuity through a PC Zone or other means. Page 23 of 28 City Council Meeting November 18, 2013 MINUTES Ms. Gitelman reported the 30 -year period was required by the Density Bonus Law. Some type of development agreement or a PC Zone could be used to extend the term of the BMR units. In addition, the City could fund a portion of the units in exchange for some type of requirement. The applicant did not propose any of those options; therefore, the 30 -year period would be effective. Vice Mayor Shepherd inquired whether the Council had discretion to utilize a different traffic model. Menlo Park and San Mateo County utilized different models from the City. Ms. Gitelman indicated the City's obligation was to utilize the best available tool. The City was preparing its own model which would have to be compatible with the VTA model. Vice Mayor Shepherd agreed with Council Member Berman's comments regarding parking; however, she could not deny the project as it complied with State parking requirements. The few requested exceptions did not appear to be egregious. Returning the project for revisions would not result in a better project. Council Member Burt felt the increased height enhanced the design and did not increase the FAR. Given the requirements of a CS Zone, this project was one of the best designed projects. Smaller residential units provided the least impact to the community and complied with State housing mandates. He expressed concern regarding cumulative traffic impacts. CS Zoning should be modified with respect to the size of projects along El Camino Real. Mayor Scharff believed the Council needed to amend the Municipal Code to eliminate the mandate for projects to be built to the line. MOTION PASSED: 7-2 Holman, Schmid no 17. Public Hearing: Request For Council's Direction On Whether to Apply The Edgewood Plaza PC $94,200 Public Benefit Payment to the Construction of a Sidewalk, Historic Preservation of a Public Building, or Another Council Directed Purpose. Council Member Holman recused herself from Agenda Item Number 17 because she previously worked for and still volunteered with the Palo Alto History Museum. Elena Lee, Senior Planner, requested Council direction regarding application of the Edgewood public benefit penalty to one of three projects: future rehabilitation of a historic public building, construction of a sidewalk along Page 24 of 28 City Council Meeting November 18, 2013 MINUTES West Bayshore Road, or another Council -directed priority. The penalty was one of five public benefits given to the City in exchange for a Planned Community (PC) Ordinance Amendment. Under the first option, potential projects could include the University Avenue Transit Depot, the Lucie Stern Community Center, or the Roth Building. If the City purchased the Post Office, then it could be a potential project. Under the second option, the sidewalk would extend along West Bayshore Road from Channing Avenue to the border with East Palo Alto. The Bike and Pedestrian Transportation Plan indicated the need for this sidewalk. The cost of a sidewalk would be approximately $62,000 for design and approximately $411,000 for construction. Staff mailed surveys to Edgewood Drive residents where the sidewalk would be constructed. Of the six responses received, three approved if impacts were mitigated and three disapproved. A petition from Palo Alto and East Palo Alto residents requested construction of a sidewalk and bike lane. Other correspondence requested improvements for bike riders along with construction of a sidewalk, requested funds be allocated to rehabilitation of a historic resource, and supported construction of a sidewalk. Public Hearing opened at 10:24 P.M. Trish Mulvay supported construction of a sidewalk along with bicycle, pedestrian, and parking options. The petition was provided by East Palo Alto residents and not the City of East Palo Alto. An asphalt surface could be constructed to allow pedestrian and bicycle usage during the day and overnight parking. If the Council chose to allocate the money to rehabilitation of a historic resource, she hoped funds would be utilized for the Lucie Stern Community Center. Horst Haussecker reported the noise from speeding traffic along West Bayshore Road exceeded noise from the freeway. Trees in the construction area were utilized as a sound barrier for neighbors. Overnight parking created additional noise and trash and blocked access to gates. A lower speed limit and parking restrictions along West Bayshore Road were needed rather than a sidewalk. Public Hearing closed at 10:31 P.M. MOTION: Council Member Schmid moved, seconded by Council Member Kniss to approve Staff's recommendation to apply the penalty paid for the Edgewood Plaza PC Amendment for the historic preservation of a public building. Mayor Scharff clarified that the Motion did not name a specific building. Page 25 of 28 City Council Meeting November 18, 2013 MINUTES Council Member Schmid believed construction of a sidewalk should be included in infrastructure improvements. For the amount of money available, rehabilitation of a building near Edgewood Plaza was logical. Council Member Kniss felt funds should be allocated to rehabilitation of a historic building, because the penalty was assessed for demolition of a historic building. Council Member Burt noted the amount of funds would not fully fund construction of a sidewalk, and inquired about Staff's vision for funding construction of a sidewalk. James Keene, City Manager, reported additional funding could be provided through Capital Improvement Program (CIP) funding. Staff could follow up with the City of East Palo Alto regarding design and a potential contribution toward funding. If the Council allocated the funds to construction of a sidewalk, it would signal the Council's interest in the project. Council Member Burt recalled Council discussion regarding the Edgewood Plaza project. Construction of a sidewalk would be an additional step for Edgewood Plaza becoming a better community amenity. SUBSTITUTE MOTION: Council Member Burt moved, seconded by Vice Mayor Shepherd to apply penalty paid for the Edgewood Plaza PC Amendment toward the design of the sidewalk project along West Bayshore Road. Council Member Burt felt the funds should be directed toward the project that provided the funds. Vice Mayor Shepherd understood the connection between the penalty and rehabilitation of a historic resource. Yet, the amount of funding would not provide a substantial amount of rehabilitation. The amount of funds would provide design of a sidewalk and allow community engagement. Until the City had a developed preservation fund, she preferred the penalty amount be utilized in the community. Council Member Price concurred with the logic of constructing a sidewalk adjacent to Edgewood Plaza. She anticipated discussion of a historic rehabilitation or restoration fund. Council Member Klein expressed concern that the Motion would lead to another discussion of which building the funds should be applied to. He would support applying funds to the Lucie Stern Community Center. Applying funds to study the potential of a sidewalk was not logical. More Page 26 of 28 City Council Meeting November 18, 2013 MINUTES work was needed to engage the community and to determine the problems of constructing a sidewalk. SUBSTITUTE MOTION FAILED: 3-5-1 Burt, Price, Shepherd yes, Holman recused INCORPORATED INTO THE MOTION WITH THE CONSENT OF THE MAKER AND SECONDER to change the verbiage in the Motion from "the historic preservation of a public building" to "historic preservation at Lucie Stern as set for in paragraph two on page 797 in the Staff Report: "The Lucie Stern Community Center located at 1305 Middlefield Road. The community center was designed noted Palo Alto architect Birge Clark and is designated as a Category 1 resource on the City's historic inventory. There are two potential projects that could benefit from this funding. The two projects consist of restoration and rehabilitation of the existing brick pavers located onsite and/or upgrading of the existing single -pane glass with custom fabricated double -insulated panes. The paver project would consist of repairing of about 1,000 lineal feet of the original pathways. The bricks would be moved temporary to allow leveling of the sub -base with gravel and removal of protruding tree roots and rocks. Broken or unsafe bricks would be replaced with new matching bricks. The window project would allow better sound control and insulation for the facility while allowing the appearance of the historic building to be retained." Council Member Berman concurred with Council Member Klein's comments. MOTION PASSED: 7-1-1 Burt no, Holman recused Council Member Burt suggested Agenda Item Number 18 be continued to a future meeting because of the late hour. Mayor Scharff announced the Council would discuss Agenda Item Number 18 at this time. 18. Colleague's Memo from Mayor Scharff, Vice Mayor Shepherd, Council Member Holman and Council Member Price, Regarding Expanding Smoking Ban in Downtown and California Avenue Business Districts. Mayor Scharff reported the Colleague's Memo recommended a comprehensive approach to the smoking ban, outreach to businesses and citizens, and review by the Policy and Services Committee. Trish Mulvay supported the Colleague's Memo. Cigarette butts were a significant trash problem. Consideration should be given to providing areas for smokers and providing containers for cigarette butts. Page 27 of 28 City Council Meeting November 18, 2013 MINUTES MOTION: Mayor Scharff moved, seconded by Council Member Holman to direct Staff to: 1) proceed to the Policy & Services Committee for policy discussion and recommendation to the full Council to expand the City's outdoor smoking ban in the Downtown and California Avenue Business Districts; 2) conduct outreach to downtown and California Avenue residents, businesses and property owners for input on expanding the City's current ban on outdoor smoking in certain areas, including California Ave and University Ave and possibly other streets in the downtown cores; and 3) benchmark other jurisdictions' outdoor smoking ban ordinances in downtown cores. Council Member Holman noted the health concerns of smoking and second- hand smoke. Council Member Price concurred with previous comments. Council Member Schmid agreed that smoking was unhealthy; however, he knew of no medical study that indicated walking down a street with someone smoking led to lung cancer or respiratory disease. He suggested the Policy and Services Committee review literature to determine whether smoking on a sidewalk impacted health. Otherwise the role of local government was toleration and acceptance of things the community did not necessarily like. Council Member Burt wanted to be cautious regarding legislating against things that annoyed him. A health risk was different from a personal preference. MOTION PASSED: 8-1 Schmid no ADJOURNMENT: The meeting was adjourned at 10:52 P.M. Page 28 of 28 City Council Meeting November 18, 2013 Attachment B: Smoking Ordinance Benchmarking for Downtown Core Smoking Restrictions February 2014 City and Ordinance Adoption Year Ordinance Requirements (with focus on downtown core) Litter Reduction Efforts Enforcement Outreach and Costs Mountain View Goal: public health Installation of 10 Police Department Public meetings, direct mail to February 2012 Used model ordinance provided by Public Health Law and Policy under new combination tobacco waste and responsible for education and enforcement. PD restaurant and bar owners, newspaper ad, website, on - contract to the City. No explicit trash receptacles volunteers visit all line survey, meetings with downtown ban, however 25 feet buffer zone from openings and ban in outdoor dining areas covers downtown affected businesses and provide educational materials and window stakeholders (Chamber, Downtown Assoc., etc.) downtown decals. Enforcement complaint driven. Fines included in ordinance. Cost of staff time and decals/outreach materials. Funding through grant from Santa Clara County Public Health Dept. San Rafael Goal: ALA Score improvement Extensive clean-up Complaint -based, no $20,000 for signage. San October 2012 Prohibits smoking on all sidewalks and programs, rebate police involved due to lack Rafael did extensive outreach pedestrian areas and public places in downtown with the exception of program (butts for bounty), public of resources. Complaints filed with Marin County to stakeholders (chamber, social service providers, Marin smokers passing by en route to education, and Tobacco Disease control Builder's Assoc., transit another destination. Downtown ban receptacles Program. Citation/fines agencies, multi -unit buildings. eliminate confusion over buffer zones. downtown included in ordinance. Held town hall meeting. Downtown is defined by street names. "adopted" by Inclusive process to develop This ordinance also includes outdoor dining areas, public events, recreation areas, outdoor service areas, public places, worksites, 80% of hotel rooms, and multi -unit housing. businesses. Separate section of Municipal Code prohibits littering City-wide. ordinance Santa Cruz 2009, expanded 2013 Goal: Public health and environmental impacts of discarded cigarette butts. Original ordinance just for Pacific Ave, which pushed smokers to side streets, alley ways, and parking lots. Expanded ordinance prohibits smoking on the beach right-of-way between Municipal Wharf and Third Street and any portion of Pacific Ave right of way, side streets, alleys, and surface parking lots one block in either direction from Pacific Ave between Laurel and Water Streets Businesses helped purchase cigarette butt receptacles. _ City health officer, City manager or designee authorized to enforce. Citizens register complaints or bring legal action to enforce. Violations and penalties included. Outreach to downtown business community. Walnut Creek Goal: Public health, fire prevention, Ash towers Complaint based, signage Community meetings tailored October 2013 litter, ALA score installed at will be installed, stickers to stakeholder interests. Prohibits smoking on public sidewalks participating provided to merchants. Brochures at farmers market. in the Pedestrian Retail Zoning District establishments. Escalating fines included. Meeting with key stakeholder (downtown retail core). The ordinance also includes outdoor dining Any violation can also be brought as civil action groups (chamber, downtown, CA restaurant assoc). Open areas, outdoor service areas, 20' of entryways and ground floor operable pursued by City Attorney. City Manager's office will townhall (on-line forum). windows, public events, and multi- be primary department Staff working with Contra family housing. responsible for handling complaints and enforcing ordinance due to staff resource issues in Police and Code Enforcement. Costa County Tobacco Prevention Coalition program on an enforcement and implementation plan. Monterey — Primary reason: litter/environmental Businesses Misdemeanor and admin Organized a sign contest to Fisherman Wharf protection installed citation process celebrate new smoking ban. December 2013 Ban at Fisherman Wharf was requested by Wharf Business receptacles. Association. Monterey also prohibits smoking on recreation trail, beaches Santa Monica October 2006 Council acted based on California Air Resource Board report in February 2006, declaring tobacco smoke a toxic air contaminant. Ordinance bans smoking on Third Street Promenade, within 20' of openings, outdoor waiting areas, farmers markets, and outdoor dining areas. None mentioned Education, awareness, and voluntary compliance as the goal. Police officers can give citations with a max penalty of $250. No legal liability for business owners. Funds for signage. Meetings with stakeholders including Convention & Visitors bureau. Berkeley Public health and welfare Ashtrays located in Health and Human Smoking cessation assistance Updated March Ordinance banned smoking on all no smoking areas Services Department and included as part of outreach. 2008 commercially zoned sidewalks. In must have signage Public Safety departments addition, ordinance bans smoking in "smoking enforce. Violations are outdoor eating areas, recreational prohibited by law — infractions per muni code areas, sports arenas and outdoor theaters, bus stops. Effective May extinguish here" or can be handled as admin citation. 2014, smoking is prohibited in multi- family buildings. Fremont Goal: public health and welfare, ALA Ashtrays located in Community Preservation Public hearing was conducted January 2013 score card no smoking areas Division, Police and Fire Ordinance prohibits smoking on all must have signage Departments and Park commercial area sidewalks (defined), service areas, and outdoor dining "smoking prohibited by law — Rangers enforce. Citizens can register complaints areas. Ordinance also addresses recreational areas and multi -unit residences. E -cigarettes added to ban in 2014 extinguish here" and bring legal enforcement actions. Requires owners/operators of establishments to notify smokers when they are violating. Escalating fines included. CITY OF PALO ALTO POLI CY AND SERVI CES COM M I TTEE MI NUTES Special Meeting June 17, 2014 Chairperson Price called the meeting to order at 6:05 P.M. in the Council Conference Room, 250 Hamilton Avenue, Palo Alto, California. Present: Klein, Price (Chair), Scharff Absent: Schmid AGENDA ITEMS 1. Recommendations for Expansion of City Smoking Ban in the Downtown and California Ave Business Districts; Including Benchmarking Data and Policy Discussion to Possibly Include Additional Areas or Restrictions on Sales and Indoor Smoking. Kirsten Struve, Manager of the Environmental Control Program, provided background on the benchmarking and jurisdiction ban of non-smoking. Staff recommended expanding the area of non-smoking designation beyond the Colleagues Memo. The Memo requested California Avenue and the Downtown areas but Staff wanted to include the Comprehensive Plan's Regional and Neighborhood Commercial areas. The surrounding cities' smoking ban prohibited outdoor dining areas which were recommended by Staff. Staff dealt with the Downtown Streets Team and it was determined there was smoking associated litter outside of the designated smoking areas. Palo Alto currently had a $250 fine for smoking in a non -designated area while other jurisdictions had escalating fines for repeat offenders; a Staff recommendation to be considered. Future planning would include the restrictions of indoor multi -family housing, tobacco sales, and upgrading the City's Santa Clara County Public Health rating. Trish Mulvey spoke of the damage cigarette butts cause to aquatic animals as they swallow them once the litter travels to the water sources. She recommended the survey be as broad as reasonable to allow Staff to return with the adequate information. Page 1 of 12 MI NUTES Allison Chan supported the smoke -free ban in commercial and Downtown areas. In reviewing the litter maps the majority of litter was cigarette butts. The filter in the cigarette butt was toxic to the wild life and aquatic animals. Council Member Klein asked why Staff was suggesting a public opinion outreach. Over the years with the many smoking bans implemented there was not survey work performed. Ms. Struve confirmed the Colleagues Memo requested outreach and Staff felt survey work was a good way to reach a large percentage of the population. Council Member Klein asked who wrote the Colleagues Memo. Council Member Scharff stated he was the initiating author. Council Member Klein asked if there was survey work requested in the Memo. Council Member Scharff stated no and did not feel it was necessary. James Keene, City Manager, believed the Colleagues Memo was more restrictive about expanding the outreach to the commercial areas. He understood the original intent to be a courtesy outreach to the business community. Council Member Scharff felt intrigued by the possibility of expanding the ban to multi -family residential where there were shared walls and ventilation systems. Council Member Klein asked how the number of 3 billion cigarette butts was derived. Palo Alto was 1 percent of the population which equated to 30 million. Mr. Keene believed the source information was provided by Save the Bay. Council Member Scharff agreed with Staff Recommendation 2; a) Increase the area covered to include "Regional/Commercial" areas (e.g.: Stanford Shopping Center), b) increase the area covered to include "Neighborhood Commercial" areas (e.g.: Alma Plaza), c) increase coverage to include all outdoor eating areas, d) include penalty escalation for repeat offenders, e) include e -cigarettes, and f) require cigarette butt receptacles and signage immediately adjacent and within areas covered by the ban. And Staff Recommendation 3; changes to the indoor smoking restrictions and restrictions on sale of tobacco products and e -cigarettes be considered: a) Page 2 of 12 Policy and Services Committee Special Meeting Minutes 6/17/14 MI NUTES include e -cigarettes in current indoor restrictions, b) ban the sale of tobacco products and e -cigarettes at pharmacies and at any establishments adjacent to parks and schools. He asked how quickly Staff could return with a proposed Ordinance and could it return directly to Council. Molly Stump, City Attorney, stated Staff Recommendation 3 was relatively straight forward but she would speak with Staff to determine the specific scope. Ms. Struve said the vision was to move forward with Recommendation 2 at the present time. She believed e -cigarettes in pool vehicles and City facilities would be straight forward but restrictions on sales of tobacco may take time. Mr. Keene noted Recommendation 3 did not include the more detailed restrictions on indoor smoking. Council Member Scharff felt Staff Recommendations 2 and 3 could be moved forward now. Khashayar Alaee, Senior Management Analyst, stated Recommendation 2 could return to Council in September or October with the Ordinance. Mr. Keene wanted to be clear; the Staff recommendation on the front of the Staff Report was less detailed than the one on page 6 being referenced by the Committee. Ms. Struve agreed but mentioned banning sales of tobacco products may be a more controversial manner. She noted CVS had already committed to stopping the sale of tobacco products in Palo Alto. Council Member Scharff asked what outreach would be requested for Pharmacy's if Recommendations 2 and 3 were moved forward immediately. He asked what level of outreach Staff felt was appropriate. Mr. Alaee said Staff would request to meet with each location to inform them of the proposed Ordinance. Council Member Scharff did not feel limited outreach would take an extended amount of time. Mr. Keene stated within Santa Clara County the only restricted sales was in the unincorporated areas. Council Member Scharff asked how retailer licensing worked. Page 3 of 12 Policy and Services Committee Special Meeting Minutes 6/17/14 MI NUTES Nicole Cox, Santa Clara County Public Health Department, clarified the County required each facility; who desired to sell tobacco products, obtain a local permit. The County had the Cities of San Jose, Campbell and Morgan Hill with retailer licenses which provided local control to the enforcement agency to enforce the sales to minor laws and other issues that were not enforced at the State level. Council Member Scharff asked if the Council adopted Recommendations 2 and 3 would the City accomplish the smoke -free outdoor air and thus accomplish a higher American Lung Association score. Ms. Struve stated Recommendations 2 and 3 would cover all outdoor dining but outdoor events would need to be added. Most outdoor events occurred in the Downtown area or parks which would be covered by another section of the Ordinance. Council Member Scharff asked why the restrictions near parks and schools would not be included with the pharmacies. Without the pharmacy option cigarettes could be purchased at grocery stores, liquor stores and gas stations. Ms. Struve explained if there was a pharmacy within the grocery store the store would be included in the ban. Council Member Scharff was in favor of moving forward with the ban at facilities but was not ready to move forward with the residential ban without further input from the community. Mr. Alaee said a survey of the multi -family units should take 45 -days to complete. Council Member Scharff asked if the City accomplished the list of Recommendations 2 and 3 would the grade increase from a D to an A. Ms. Cox said without having the American Lung Association criteria at hand she could not say for certain although she believed it was highly probable. Ms. Struve explained there were two grading systems; the County and the American Lung Association. After reviewing the criterion she believed Palo Alto would accomplish an A grade. Chair Price asked for clarification on the term multi -family units; were condominiums and townhouses included or was it primarily rental property. Page 4 of 12 Policy and Services Committee Special Meeting Minutes 6/17/14 MI NUTES Ms. Struve clarified all variations of multi -family residents were considered. Chair Price stated apartment associations and homeowner associations should be included in the outreach. She asked what effect the license permit would have on Mac's Smoke Shop and other outlets of tobacco distribution. Ms. Struve clarified if Palo Alto acquired a Tobacco Retail License all shops able to sell tobacco products would be required to obtain a permit and follow the City's requirements. Mr. Alaee said the ban would not initially include outlets outside of pharmacies or grocery stores with pharmacies. The thought process was to nest the tobacco licensing requirements with the Business Registry. Chair Price read in the Staff Report escalation of enforcement and the development of an enforcement plan. She did not recall seeing language on enforcement, escalation or an enforcement plan in Staff's recommendations. She asked whether that language needed to be included in the motion. Ms. Struve stated the enforcement plan had not been developed as of yet. She said as an option the Police could randomly select days to seek out smoking offenders to show the community enforcement was being taken seriously. Chair Price clarified Staff was seeking guidance from Council. Ms. Struve stated yes and agreed to provide draft language on the fees, enforcement plan, and escalation when they return. MOTI ON: Council Member Klein moved, seconded by Council Member Scharff to recommend to the City Council adoption of: 1. The changes to the outdoor smoking restriction to be considered: a) Increase the area covered to include "Regional/Commercial" areas (e.g.: Stanford Shopping Center), b) increase the area covered to include "Neighborhood Commercial" areas (e.g.: Alma Plaza), c) increase coverage to include all outdoor eating areas, d) include penalty escalation for repeat offenders, e) include e -cigarettes, and f) require cigarette butt receptacles and signage immediately adjacent and within areas covered by the ban; and 2. To the indoor smoking restrictions and restrictions on sale of tobacco products and e -cigarettes be considered: a) include e -cigarettes in Page 5 of 12 Policy and Services Committee Special Meeting Minutes 6/17/14 MI NUTES current indoor restrictions, b) ban the sale of tobacco products and e - cigarettes at pharmacies and at any establishments adjacent to parks and schools. Council Member Klein believed the American Lung Association ratings were exaggerated. Palo Alto had a small number of continued smokers and the community was susceptible to the change in a ban direction. He had concern with indoor residential smoking and did not feel the residents were as onboard. He believed there should be specific clarification on the distance between smoking and the adjacent area of parks and schools. Mr. Keene clarified the distant would be 1,000 feet. The City considered Lytton Plaza a park and there were tobacco enthusiasts within the 1,000 feet of the area. Council Member Klein accepted Lytton Plaza was a park area and agreed there was smoking. He cautioned the appearance of Palo Alto banning the sale of any tobacco products throughout the City limits. He was not certain that could be accomplished. Ms. Stump stated she had not researched that specific question although believed that would run into a preemption issue. INCORPORATED INTO THE MOTION WITH THE CONSENT OF THE MAKER AND SECONDER to have the words "public events and worksite service areas" included in Item Number 2 of the Motion. Council Member Scharff remarked seeing construction workers smoking just outside of the work area which he found to be bothersome. He had witnessed workers tossing their butts over into the neighbor's yard. INCORPORATED INTO THE MOTION WITH THE CONSENT OF THE MAKER AND SECONDER to replace "Considered" with "included in the Ordinance" in Item Number 2 of the Motion. Chair Price asked if the Seconder was suggesting there not be additional outreach to the Chamber of Commerce. Council Member Scharff did not have an issue with outreach. He asked whether there had been any outreach performed to date. Mr. Alaee stated yes, Mr. Fehrenbach had spoken to the business areas in town and had informal conversations. The entire outcome had been positive. Page 6 of 12 Policy and Services Committee Special Meeting Minutes 6/17/14 MI NUTES If the Committee desired more commercial or business outreach that could be completed. Council Member Scharff wanted to move forward with a banning smoking plan in multi -family housing. Council Member Klein stated there was a distinction between rental property and condominiums or townhouses ownership. Chair Price disagreed with the distinction of rental versus ownership; both types shared common walls and ventilation. Council Member Scharff asked the Maker if they would agree, for the purposes of outreach, to include owned and rented property. Council Member Klein agreed but noted a Homeowners Association could ban smoking on their own. INCORPORATED INTO THE MOTION WITH THE CONSENT OF THE MAKER AND SECONDER to have Staff perform outreach and determine where the community was on the banning smoking in multi -family rental housing. Council Member Scharff wanted to include the tobacco retail license in the Motion. Council Member Klein stated he did not feel the amount of retailers selling tobacco was great enough to induce another bureaucracy. Council Member Scharff asked Staff for a brief explanation on the advantages of the license. Mr. Keene clarified the main reason of the licensing would be to monitor and enforce the sale of tobacco to minors. Council Member Scharff asked what the current process was if a retailer was caught selling tobacco to minors. Ms. Cox stated there was a minimal fine charged to the establishment if there was no licensing in effect. Council Member Scharff confirmed the licensing allowed the City to enforce stopping the sale of tobacco products. Page 7 of 12 Policy and Services Committee Special Meeting Minutes 6/17/14 MINUTES Ms. Cox stated that was correct. Chair Price mentioned the issue of enforcement and the development of an enforcement plan had not been addressed. Council Member Scharff stated in the Staff Report under Summary of Recommendation the enforcement issue was spelled out in Recommendation 2. Chair Price asked if there would be information or a link on the website regarding smoking cessation programs. Mr. Keene agreed the Staff could set-up a clearing house connection on the website. MOTI ON RECAPPED: Council Member Klein moved, seconded by Council Member Scharff to recommend the City Council approve: 1. The changes to the outdoor smoking restriction to be considered: a) Increase the area covered to include "Regional/Commercial" areas (e.g.: Stanford Shopping Center), b) increase the area covered to include "Neighborhood Commercial" areas (e.g.: Alma Plaza), c) increase coverage to include all outdoor eating areas, d) include penalty escalation for repeat offenders, e) include e -cigarettes, and f) require cigarette butt receptacles and signage immediately adjacent and within areas covered by the ban; and 2. To the indoor smoking restrictions and restrictions on sale of tobacco products and e -cigarettes be included: a) include e -cigarettes in current indoor restrictions, b) ban the sale of tobacco products and e - cigarettes at pharmacies, public events, work sites and services areas; and 3. Direct Staff to conduct appropriate outreach with regard to potential bans on smoking in multi -family residential units. INCORPORATED INTO THE MOTION WITH THE CONSENT OF THE MAKER AND SECONDER to include licensing and delete all wording after "pharmacies" in Item Number 2 of the Motion. Chair Price asked why the removal of restricting sales adjacent to parks and schools. Page 8 of 12 Policy and Services Committee Special Meeting Minutes 6/17/14 MI NUTES Council Member Klein stated there were a number of restrictions and leaving in the "adjacent to parks and schools" would ban tobacco products from Mac's Smoke Shop because of its proximity to Lytton Plaza. MOTI ON AS AMENDED PASSED: 3-0 Schmid absent Chair Price asked what the smoking restrictions were at Stanford University. Ms. Struve stated they had a smoking restriction in place; 30 -feet from any opening and there was no tobacco sold on campus. Chair Price asked the Department of Public Health representative if there was information she could add. Ms. Cox agreed with Ms. Struve and added the Stanford Medical Campus was completely smoke -free. MOTI ON: Chair Price moved, seconded by Council Member Scharff to recommend to the City Council to not make the distinction on banning smoking, and to include multi -family, condominiums, townhouses, and multi -family rental housing; anything with attached housing where people were sharing ventilation systems and could potentially pollute one another. MOTI ON PASSED: 2-1 Klein no, Schmid absent MOTI ON: Council Member Scharff moved, seconded by XX to ask Stanford University to become a smoke -free campus and have the Palo Alto City Council pass a Resolution asking them to do so. Council Member Klein said he would not participate in this Motion due to his wife being a member of the Stanford University faculty. MOTI ON FAI LED DUE TO LACK OF A QUORUM Mr. Keene clarified the Committee provided explicit direction with respect to outreach on 1) apartments and condominiums with shared ventilation and 2) appropriate and courteous outreach to effected businesses and Stanford Shopping Center. He believed initiating the outreach prior to Council review would benefit the Council's decision. He asked Staff the probable return date to Council. Mr. Alaee stated October. Mr. Keene asked why it needed to be so far out. Page 9 of 12 Policy and Services Committee Special Meeting Minutes 6/17/14 MI NUTES Mr. Alaee stated after review of the Council Calendar it appeared the best option. Mr. Keene stated that was too long, all that was needed was the outreach portion. Council Member Scharff stated the City Manager and the Mayor should determine the date. The question was when Staff could have the information ready. Council Member Klein believed the outreach was a courtesy and he noted the industry did not have veto power over the decision. 2. Discussion and Recommendation to Council Regarding Potential Ordinance Making Changes to Council Compensation. Molly Stump, City Attorney, stated the current Council was compensated consistent with the General Law at $600 per month. The General Law allowed room for compensation levels to be increased by way of an Ordinance approved by the majority of Council or the Council could place the matter before the voters. She noted any change to Council compensation would go into effect with the beginning of new Council terms; for Palo Alto that would be January 2015. Council Member Scharff asked if the 2014 voting Council Members who were not up for re-election could vote and have the increase if applicable applied to their compensation in January of 2015. Ms. Stump replied yes. Council Member Scharff believed any vote could not apply to oneself. Ms. Stump stated at least one member of the body had to have stood for election in order for the new compensation level to apply to the entire body. Meggan Casas, Senior Human Resources Administrator, reviewed the benchmark data on surrounding cities in Santa Clara and San Mateo Counties for a total of 26 cities. The highest monthly Council salary was the City of San Jose at $6,750. The average monthly salary throughout the remaining cities was $759.40. The City of Santa Clara received an annual Consumer Price Index (CPI) increase of 5 percent. The City of Mountain View has a proposed measure for November 2014 to increase compensation from $600 to $1,000 monthly. Page 10 of 12 Policy and Services Committee Special Meeting Minutes 6/17/14 MI NUTES Council Member Scharff asked for the average salary. Ms. Casas stated $759.40. Council Member Scharff asked if the average was based on all of the cities even though some were paid $0 and San Jose was $80,000 annually. Ms. Casas said yes. San Jose Council Members were full time employees but they were Council Members so their salary was included. Council Member Scharff did not feel the average was helpful because the monthly amounts were all over the chart. James Keene, City Manager, wished to speak to the average but in contrast the City was in the median at $600. Chair Price acknowledged different cities paid different amounts but she felt the issue should be based on the amount of work performed not the numbers. She asked what the parameters were per the Ordinance that could be used to make annual salary adjustments. Ms. Stump stated the General Law allowed the Council to add 5 percent each year since the last date of increase which was 2001. She noted the 5 percent could not be compounding. Chair Price said the Staff Report calculated the amount to just under $1,000. Mr. Keene agreed and stated there could be a perspective 5 percent increase moving forward. Ms. Stump clarified if the Committee was interested in the maximum amount of increase Staff would need to review the calendar and count days from the last increase in 2001 to January 1, 2105. Herb Borock read portions of the General Law where the 5 percent was indeterminate based on the benefits received. Some cities did not provide medical benefits to their Council. He felt the only benefit the City Council should receive was salary and not medical benefits because the position was not employment but volunteer. Council Member Scharff recalled in 2010 there was a Motion to reduce Council salary which failed by a 5 to 4 vote. Historically when financial times were low cities did not provide salary increases but when the economy rose Page 11 of 12 Policy and Services Committee Special Meeting Minutes 6/17/14 MI NUTES salaries increased and long-term projects were taken on. He believed Council needed to take a leadership role and just because the economy was good Council should not be the first in line to benefit. Palo Alto Council salaries were in the median and he was satisfied with that. MOTI ON: Council Member Klein moved, seconded by Chair Price to recommend to the City Council that salaries be increased to $1,000 per month effective January 1, 2017. Council Member Klein felt the reason for an increased salary was it had been 13 years since the last increase. There was a decline in Council candidates in their middle years and although you were not on the Council to become wealthy there was an increase in workload and time away from family. He chose the effective date as not to benefit seated Council Members. Chair Price mentioned the current seated Council came from a variety of economic status. There were Council Members who used personal choice to not accept any monthly pay and some chose not to accept health benefits. Those options were a personal choice and providing an increase in salary was not meant to discourage or encourage candidates. MOTI ON PASSED: 2-1 Scharff no, Schmid absent Chair Price asked when Staff would bring the item forward to the full Council. Ms. Stump stated Staff would work toward an August return. ADJOURNMENT: Meeting adjourned at 7:38 P.M. Page 12 of 12 Policy and Services Committee Special Meeting Minutes 6/17/14 Tobacco Retail Licensing Fact Sheet Santa Clara County is one of the largest counties in California, featuring a diverse population of nearly 1.8 million residents, including 15 cities. Although Santa Clara County has one of the lowest smoking rates in the state, 1 in 10 residents (youth and adults) report using tobacco. Furthermore, the rate of decline in cigarette use among high school students (all racial/ethnic groups) in the United States has slowed or leveled off since 2003. Youth access to tobacco products is a serious public health problem for Santa Clara County; unfortunately the current State Tobacco Retail Licensing Law has done little to reduce the sales of tobacco to minors. In order to reduce illegal sales to minors, the adoption of local tobacco retail licensing (TRL) ordinances are required.These should contain strong enforcement provisions and financial deterrents for violators. "Youth access to tobacco products is a serious public health problem" Why Santa Clara County Needs Tobacco Retail Licensing (TRL) • In Santa Clara County, residents with very low income smoke at twice the rate of people with above -median, income. Due to higher concentrations of tobacco retail outlets, low-income communities are more exposed to pro -tobacco influences, including higher rates of tobacco advertising and tobacco access points. Currently, there are 1, 514 tobacco retail outlets in Santa Clara County, with 828 of them located in San Jose. • According to county enforcement jurisdictions, illegal sales of tobacco products to minors range from 6.3% to as high as 62.5%, with a majority of the cities having rates above 20%. • Nearly a quarter of Santa Clara County middle school students and two-thirds of Santa Clara County high school students who smoke cigarettes report that it is easy to get cigarettes. • One of the most common sources for acquiring cigarettes reported by Santa Clara County adolescents is making a purchase on their own. Most of the students who bought cigarettes in a store during the past month were not asked to show proof of age. • Adolescent experimentation with tobacco can lead to lifelong tobacco addiction and serious smoking -related health problems such as heart disease, stroke, chronic lung disease, and cancers of the lungs, mouth, pharynx, esophagus, and bladder. • More than 76 communities in California have adopted strong local tobacco retail licensing ordinances and have seen the rates of youth access to tobacco reduced dramatically. Notable Northern California communities that have experienced successes upon passing TRL include Berkeley, San Francisco, Sacramento and Contra Costa County. City/County Sales Rate Before TRL Annual Fee Sales Rate After TRL Contra Costa County 37% $160 19% City of Berkeley 38'6 $427 4.2% City of San Francisco 22.3% $175 11.3% Sacramento County 21% $324 8.4% Funding: U.S. Department of Health and Human Services. INSPIRE Tobacco Prevention Santa Clara County PUBL!C HEALTH Support for Tobacco Retail Licensing • 93% of Santa Clara County residents support a tobacco retailer license • 100% of Santa Clara County key opinion leaders support fines for businesses that illegally sell tobacco to minors • 90% of Santa Clara County key opinion leaders support the licensing of businesses that sell tobacco products and the restriction of tobacco specialty stores • 89% of San Jose residents think youth using tobacco is an issue/problem in their neighborhood/city • 89% of San Jose residents think that stores/tobacco retailers can help prevent or stop youth from becoming, hooked on tobacco What Local Decision Makers Can Do • Develop a strong tobacco retail licensing ordinance within their local jurisdiction which should include the following four components o Require that all retailers that sell tobacco products obtain a license and renew it annually o Set a fee high enough to sufficiently fund an effective program, including program administration, and enforcement efforts. An enforcement plan that includes compliance checks should be clearly stated o Coordinate tobacco regulations so that a violation of any existing local, state or federal tobacco regulation violates the license o Create a financial deterrent through fines and penalties including the suspension and revocation of the license. Fines and penalties should be outlined in the ordinance • Support the prosecution of local retailers/businesses who illegally sell tobacco products to minors • Limit the location and density of retail outlets that sell tobacco products • 85% of San Jose tobacco retailers have had youth try to buy tobacco from their stores • 90% of San Jose tobacco retailers believe that asking for proper identification can help prevent youth from getting tobacco To receive a copy of a model tobacco retail licensing ordinance, the most recent data on the rates of illegal tobacco, sales by city or to obtain additional resources, training and technical assistance, contact the Tobacco Prevention Program: Phone: (408) 793-2700 www.sccphd.org/tobacco-prevention CITY OF PALO ALTO CITY OF PALO ALTO OFFICE OF THE CITY CLERK December 15, 2014 The Honorable City Council Palo Alto, California Colleagues Memo From Council Members Berman, Burt, and Klein Regarding Climate Action Plan Implementation Strategy to Reduce Use of Natural Gas and Gasoline Through "Fuel Switching" to Carbon -free Electricity Requested Action by Council: Direct the City Manager to prepare a report to the Council, outlining (1) prospective programs and incentives that would result in the use of electrical devices to replace those using natural gas, (2) possible building code changes to require, where feasible, the use of electrical appliances rather than natural gas appliances in the construction and renovation of residential and commercial buildings, (3) possible changes to utility rate structures that would not penalize fuel switching, (4) evaluation of additional strategies to support adoption of electric vehicles. The report should consider and take into account applicable legal requirements, and identify potential legal, code or regulatory barriers that would need to be changed to facilitate fuel -switching. The City Manager will return to the Council by the first meeting in February with an initial report to Council on the timeframe required to research and develop this report, and the staff and related resources that will be necessary, as this initiative would be an important component in the 2015 Work Plan. Discussion: Starting in 2013 Palo Alto is one of the first cities globally to provide 100 percent carbon -neutral electricity to all of our utility customers and at rates 20% below PG&E. This is an important accomplishment, but only addresses approximately 1/5 of the greenhouse gas (GHG) emissions previously generated in the city. However, our clean electricity resource provides an exceptional opportunity to be used as a clean energy foundation to reduce our other major GHG sources, in support of the city's Climate Action Plan. The United Nations Intergovernmental Panel on Climate Change (IPCC), in its latest report, again emphasized the dire straits we'll all be in if government at all levels doesn't take far more significant steps to achieve large reductions in the generation of greenhouse gases. Building on our carbon -free electricity resource, key next steps for Palo Alto are to promote switching from appliances and other devices that presently use natural gas to devices that are powered by our clean electricity, and to support the adoption of electric vehicles and other fossil fuel -free transportation alternatives. Natural gas enjoys good press, but is in fact only marginally better than coal, in part due to the high amounts of "fugitive" emissions which are unintentional releases of harmful non -combusted methane gas that are emitted into the atmosphere during natural gas extraction and delivery processes. Our carbon - neutral electricity is far better for the environment and we therefore believe that Palo Alto should take a series of steps to promote change from gas use to use of electricity. Additionally, we should pursue more steps to support adoption of electric vehicles powered by clean electricity, replacing use of petroleum, our largest source of greenhouse gases. This is a bold and significant initiative and given its "game -changer" potential, warrants a thoughtful assessment of the opportunities and constraints this presents and a clear identification of the resources and time commitment to develop the report. Council recognizes that staff must first return with that initial report on timeline and resource requirements by early February, as a prerequisite to the Council's direction to proceed with the actual research and report being requested. This report has been reviewed by the City Manager and City Attorney and has incorporated their comments. Page 2 Department Head: Beth Minor, Acting City Clerk Page 3 Page 4 CITY OF PALO ALTO CITY OF PALO ALTO OFFICE OF THE CITY CLERK December 15, 2014 The Honorable City Council Palo Alto, California Colleagues Memo From Vice Mayor Kniss and Council Members Holman, Klein and Price Regarding Regulation of Short-term Rentals in Residential Neighborhoods (e.g., Airbnb and Related Businesses) Requested Action: Direct staff to conduct a study session with Council no later than March 31, 2015, on the various questions posed by businesses that facilitate short-term rentals of rooms, apartments or houses in residential neighborhoods (e.g., Airbnb, VRBO, etc.), what actions the City has taken, and what actions, if any, the City should take. Discussion: "Sharing economy" websites such as Airbnb, VRBO, and others provide applications that allow owners of residential property to rent some or a portion of their properties to travelers seeking such accommodations. Airbnb, for example, is only four years old but it is already a world wide business with a multi- billion dollar valuation. These businesses are also controversial. Among the Palo Alto issues posed by these businesses are: the collection of the transient occupancy tax on rentals and whether our zoning regulations should allow such rentals in residential neighborhoods. Other cities are finding other problems with the Airbnb model such as its impact on the availability and cost of housing (San Francisco) and potential traffic and parking impacts in the neighborhoods. Another concern raised by community members is one of safety. Without some form of registration, as a hotel would have, or some means of notification, residents have no way of knowing who is taking up residence, albeit on a short term basis, next door to them. Palo Alto presently has about three to four hundred Airbnb listings per night, about the same as San Jose (see S.J. Mercury News of Dec. 8, 2014). San Jose, with a 10% TOT estimates that they have been losing $150,000 per year in taxes. With our 14% TOT our calendar 2015 equivalent number is $210,000. San Jose, San Francisco and a few other larger cities have been negotiating agreements with Airbnb and other similar businesses on taxation and other matters. Our situation may be different than these larger cities in some respects, but we believe it's time for us to review what has been done and consider what additional steps Palo Alto should take. We have provided an advance copy of this memo to the Manager and Attorney per our protocols. Resource Impact Existing staff (Planning, ASD and the City Attorney's Office) will collaborate on preparation of background material to support an initial study session. Follow up tasks, such as community outreach and preparation of potential zoning amendments, broad enforcement efforts or initiation of legal action, may require substantial additional staff resources in Planning, Code Enforcement, Communications and Legal. Reprioritization of other work and/or supplemental outside resources may be required. These are factors that will need to be considered, subsequent to the study session, if Council decides to make changes in our ordinances and practice. Department Head: Beth Minor, Acting City Clerk Page 2 Page 3