Sep 21 2011

City’s “Surprise” Agreement with PRFO

Many Questions About Why No Public Discussion or Council Vote

A Reimbursement and Indemnification Agreement was entered into between the City of Piedmont and the Piedmont Recreation Facilities Organization, PRFO, on August 12, 2011.  The agreement was executed by Geoffrey Grote, “City Manager” (sic) and Thomas Curry, City Attorney for the “Municipal Corporation Piedmont” on behalf of the City and Jessica Berg, President, on behalf of PRFO.  The Agreement with PRFO was recently posted on the City’s website with no reference to discussion, hearing, or approval by the City Council.

The City’s Charter provides:

“No action of the Council, except as otherwise provided for in this Charter, shall be valid or binding unless adopted by the affirmative vote of three (3) or more members of the Council.”  Piedmont City Charter

Did the City Council approve and authorize the Agreement in Closed Session?

No Closed Session agendas in 2011 list PRFO matters.   The Closed Session agenda of the City Council on January 18 lists “pending litigation in the matter of US v City of Alameda.”  The Closed Session agendas of the City Council on April 4, May 2, July 5, 18 lists “potential litigation” on an unspecified matter.  The Closed Session agenda of the City Council on February 7, 22, March 21, April 18, May 16, June 6, 20, August 1, 2011 did not list “potential litigation.”  If the Council did vote on the matter, why was their vote not reported out to the public, as required under California’s Ralph M. Brown Act?

Why was the Agreement created?

According to the language of the Agreement, “Although [the] City is willing to continue to bear the staff costs of further work on the Proposed Project, it will require the financial assistance of PRFO in paying for additional work by third parties and consultants.”  Why was this determination not reached in public?

-Why should the City bear all the staff costs of the development and administration of the project’s review and approval process?

This agreement to cover staff costs is contrary to the standard policy of the City, which requires applicants for Design Review, Building permits, or Variances to cover the cost of staff time.  To get approval of even small construction changes, homeowners are charged enough money to cover any and all City costs of review and administration of approval.

Where in the Brown Act is a Closed Session allowed for the City to give away staff resources on an unlimited basis to an applicant?

–  Where in the Brown Act does it allow the City Council to meet in Closed Session to discuss assisting a proponent of a public project excluding the public and their right to participate in the proceedings?

– Has the Council reviewed any financial data to prospectively show the value of providing unlimited staff resources? 

– Has the Council provided any financial data to show the City cost to date, including staff, materials and consultants for the project?

-When did the City Council reach a conclusion and why should the financial assistance come from PRFO rather than seeking funds from a public source with full disclosure?

-Who drafted the Agreement and what was the goal of the drafter of the Agreement?

Language in the agreement appears to favor PRFO, opening the deep pockets of the City for the PRFO project and limiting the legal rights of the City.

–Who read the Agreement before it was signed?

If one assumes the unidentified “pending litigation” matter discussed at the closed sessions on four occasions in 2011 dealt with the Agreement with PRFO signed by the City Administrator on August 12, it is curious that the Agreement was not discussed at the August 1 meeting.  If the Council read and approved the Agreement and authorized the City Administrator to commit the City to the provisions of the Agreement in the Closed Session on July 18, why wasn’t the Agreement signed until August 12, 25 days after the imagined/possible authorization?

-With that long time lag, and if the Council considered and approved it, why does the Agreement contain errors of fact and appear casually or imprecisely conceived?

Geoffrey Grote is identified as the “City Manager” of the City of Piedmont in the Agreement.  PRFO is identified as an “organization” not as a “corporation” although the public was previously led to believe it is a non-profit corporation.  In the Arbitration paragraph (8) any disputes between the City and “Limited Engagement Outside Counsel” will be settled by arbitration unless the dispute involves an amount greater than $500,000.  That dollar amount, unlike other dollar amounts (in numerical form only) referenced in the Agreement is only presented in words.  Was there an attempt to obfuscate the true potential monetary value of the agreement  by deviating the money form in the agreement or is it just more slipshod preparation of the Agreement?

-Why are the “conflict rules” excluded from the California state laws to be applied to arbitration of disputes from this Agreement?

The Arbitration paragraph (8) states, “The parties agree that this Agreement will be governed by the laws of California without regard to its conflict rules.”  Doesn’t the City give away significant rights by this statement?  What about the rights of the public being sacrificed by this statement?

-Is there a 90-day limit to challenging the Agreement according to the Brown Act?

To date, the agreement has not gone to the Council for public discussion, yet the City Administrator signed the binding financial Agreement on August 12 obligating the City to potential damages and taxpayer expenditures to cover its own legal defense. Even under the questionable practice of taking this matter up in Closed Session, why didn’t the Council promptly report out per the Brown Act their vote to the public?

– Why was an Agreement signed prior to the Council accepting the PRFO funds publicly and allocating the funds publicly as is their standard procedure?

– Given the preferential and exclusive right of PRFO to have information, doesn’t this make the public process inequitable by pitting the Council and staff against the residents of Piedmont? Hasn’t the Council put the City in a conflict of interest? Proponent and City against the people?

All powers of the City shall be vested in the City Council as the legislative body, except as otherwise provided by law or this Charter.  Piedmont City Charter








2 Responses to “City’s “Surprise” Agreement with PRFO”

  1. City Attorney Curry’s contract in Appendix A states: “7. To review and sign Contracts and Agreements, and to approve their form and legality.” The legal agreement with the City and PRFO is signed off by Curry: “Approved as to Form” only. “Legal” or “Legality” are missing.

  2. What happened to all the other Responses to the City’s Surprise Settlement Agreement with PRFO? The other day there were at least a half dozen dissenting opinions and now there is just one?

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