Orinda City Council Minutes Page 1 of 11 05.03.22
May 3, 2022
CITY OF ORINDA
CITY COUNCIL MINUTES
Note: Written communications received from the public prior to the start of this meeting can be viewed at: http://orindaca.iqm2.com/Citizens/Detail_Meeting.aspx?ID=2091. They are also kept in the City Clerk’s Office as part of the public record and available upon request. 7:00 P.M. – REGULAR MEETING– BY TELECONFERENCE
A. CALL TO ORDER / ROLL CALL:
Mayor Fay called the Regular Meeting to order at approximately 7:00 p.m.
COUNCILMEMBERS PRESENT: Nick Kosla, Amy Worth
Vice Mayor Inga Miller, Mayor Dennis Fay
COUNCILMEMBERS ABSENT: Darlene Gee
B. PLEDGE OF ALLEGIANCE – Led by Vice Mayor Miller.
C. ADOPTION OF AGENDA
There were no changes or requests from the public to speak under adoption of the agenda.
MOTION by Councilmember Kosla and seconded by Councilmember Worth to adopt the agenda. Said motion carried by unanimous (4-0) roll call vote.
D. ITEMS FOR THE GOOD OF THE CITY
D.1. Orinda Association Annual Report
Sally Hogarty, President, Orinda Association, gave the Annual Report and reported they are busy working now on the 4th of July and will then be working on the Classic Car Show.
She introduced Boardmembers Cindy Powell and Kate Wiley who then gave a report on “Seniors Around Town” which is in its 17th year. They cited the need for volunteers and spoke about their 20th anniversary celebration of the Volunteer Center this year and last year’s 75th anniversary of the Orinda Association.
Mayor Fay opened the Public Forum, and there were no speakers.
Mayor Fay and Councilmembers gave brief comments and thanked the Orinda Association members and volunteers for their work on successful programs, fundraising efforts, and events.
Orinda City Council Minutes Page 2 of 11 05.03.22
D.2. Proclamation - Bike to Work Day
Mayor Fay read portions of the Proclamation for Bike to Work Day into the record.
Mayor Fay and Councilmembers spoke briefly on the Bike to Work Day event at the BART Station on May 20th, emphasized the need to pay attention to bicyclists on the streets every day, and spoke about future bike and pedestrian safety projects in the City.
Mayor Fay opened the Public Forum, and there were no speakers.
D.3. Receive Report from Orinda Teen Advisory Committee Todd Trimble, Parks and Recreation Director, described the return to normalcy and its positive effects, with excellent enrollment in summer camps and programs, and he introduced Recreation Supervisor Sheena Wellman-Miner to discuss the Orinda Teen Advisory Committee (OTAC).
Sheena Wellman-Miner, Recreation Supervisor, introduced Matt Delmartini, Recreation Coordinator who is responsible for overseeing the youth sports programs, City-run summer camp programs, adult softball league and the Orinda Teen Advisory Council.
Matt Delmartini, Recreation Coordinator, introduced Isabela Peer, Chair of the OTAC, spoke about the main goal to increase participation and interest in OTAC and said this year they were able to get 14 full-time students from the 6th grade to juniors in high school to restart the program. They laid a lot of groundwork for the future and hope for more participants in the future.
Isabela Peer, Chair, Orinda Teen Advisory Council, provided an overview of the Committee’s work to become more actively involved, create more events, introduce and involve students participating with the OTAC, and she gave a presentation on their accomplishments, fundraisers and various events.
Mayor Fay opened the Public Forum, and there were no speakers.
Mayor Fay and Councilmembers thanked OTAC members for their presentation and their work to allow teens to interact and get to know their peers, fundraise, hold great events and help newcomers integrate with the community.
D.4. Receive Presentation on Downtown Planning Survey Results To Date Planning Director Drummond Buckley gave a PowerPoint presentation and first spoke about the background of the downtown opinion survey done in 2020. Staff felt it was a good idea to check in on opinions about the downtown since that time and to ask questions in a way to present answers or results in pre-set categories.
Orinda City Council Minutes Page 3 of 11 05.03.22
He said the survey was released 6 weeks ago and thus far the City has received almost 500 responses. He described 95% of the survey were taken by Orinda residents, with 25% working from home and 5% working in downtown Orinda. 35% of those 70+ took the survey, along with 20% in the 60-69 age group, 16% in the 50-59 age group, 17% in the 40-49 age group and 11% in the 30-39 age group.
Mr. Buckley then presented questions and survey answers regarding time spent downtown, what respondents do downtown, and overall satisfaction with: 1) the existing overall experience of downtown Orinda; 2) the general retail options; 3) café and restaurant options; 4) grocery options; 5) public spaces including sidewalks, plazas and parks; 6) the way downtown Orinda looks; 7) what qualities people like most about downtown Orinda; 8) what qualities they dislike most about downtown; 9) what they like best about major buildings, shopping centers, attractions and facilities.
Respondents were then asked which side of downtown do respondents prefer; whether they support revitalization of downtown, and how they feel about allowing mixed-use (housing in addition to retail and office uses) in parts of downtown.
Councilmember Worth thanked Mr. Buckley for his presentation and asked and confirmed that Survey Monkey has been a helpful tool in terms of generating community input.
Mr. Buckley asked people to visit www.planorinda.com for those wishing to participate and take the survey. Based on statistics from the Housing Element, Safety Element, community profile descriptions which are in draft form, he thinks the ethnicity statistics were close to the City’s actual demographic breakdown.
Mayor Fay asked if Survey Monkey has the ability to weight the results by demographic factors of the survey, and Mr. Buckley said it could filter results to see how different categories answered the question such as those over 60 or 70 years of age and how those answers differed.
Mayor Fay opened the Public Forum, and there were no speakers.
E. PUBLIC FORUM
Brian Davis, LGBTQ-Tobacco, spoke about LGBTQ youth who are much more likely to smoke and vape than their peers, LGBTQ and transgender high school youth in California are also four times more likely to smoke hookah, and asked not to exempt hookah flavored tobacco products from the ordinance.
Matt Fogarty spoke about the last Council meeting and the decision by the Council to not pursue MCE membership, stated MCE is 100% clean and PG&E is only 33% clean and this dirty energy is destroying their planet. He spoke about unprecedented climate changes, the extinction of plants and animals, and asked to reassess Orinda’s energy policy. He described PG&E’s solar energy which is over-subscribed for new customers, PG&E’s profits from price gouging, and he asked the Council to reconsider their decision.
Orinda City Council Minutes Page 4 of 11 05.03.22
Gene Gottfried referred to the Council’s last meeting regarding MCE and thinks its position is contrary to the overwhelming majority of neighboring cities and counties. He echoed Mr. Fogarty’s comments and said anything that can be done now to mitigate the threat will help.
Amaya Wooding, Contra Costa Tobacco Prevention Coalition echoed the comments of Mr. Davis regarding hookah and clarified that over 100 cities and counties in California include hookah in their comprehensive flavored tobacco policies. She then cited statistics for youth use, spoke about small cigars and cigarillos, and said these are the second most tobacco product among youth after cigarettes which are often used with marijuana to make blunts which expose young lungs to both THC and nicotine.
Caitlin Roach, President, Climate Action Club at Miramonte High School, expressed her club’s disappointment and surprise in the Council’s reluctance to initiate matters to seek more information on MCE and that only two Councilmembers were in favor after having received over 20 emails in favor of exploring options. She asked to reconsider this decision to gather more information and get answers to questions by the July 1st deadline to join MCE.
Jules echoed comments, said he is shocked the Council would not consider researching and possibly joining MCE, and urged the Council to look at this again and make a different decision by July 1st.
Helen, Intern, American Heart Association, voiced her support of the ordinance in banning the sales of flavored tobacco and vaping products, spoke about statistics voiced by previous speakers, said the ordinance will go a long way to protect the youth of Orinda, and asked that it move forward.
F. CONSENT CALENDAR
Mayor Fay announced he would recuse himself from voting on Item F.3 because his residence is in one of the lighting districts. He asked if there were requests for removal of items or public comments, and there were none.
F.1. City Council Minutes
Recommendation:
Approve City Council Minutes:
1. April 19, 2022 - Closed Session
2. April 19, 2022 - Regular Meeting
F.2. Authorization For Continued Use of Remote Teleconference for City Meetings
Recommendation:
Orinda City Council Minutes Page 5 of 11 05.03.22
Approve the Ratification of Orinda City Council Resolution No. 42-21 and Authorize the Continued Use of Teleconference Meetings for the Period of May 4, 2022 to June 2, 2022 Pursuant to the Provisions of Assembly Bill 361.
F.3. Ordering the Preparation and Filing of a Report for the Fiscal Year 2022/23 Assessments for the Orinda Street Lighting and Landscaping Assessment District No. 1986-1
Recommendation:
Adopt Resolution No. 20-22, Ordering the Preparation and Filing of Report for Levy of Annual Assessments for Fiscal Year 2022/23 for Orinda Street Lighting and Landscaping Assessment District No. 1986-1.
F.4. Award a Construction Contract to Valentine Corporation for the Lavenida Culvert Repair Project (Project No. 4148), Authorize Contract Amendment #2 with Dewberry/Drake Haglan for the Design, Accept Grants of Storm Drain Easements and Approve Budget Changes for said project.
Recommendation:
Staff recommends that the City Council: (1) Award a Construction Contract for the Lavenida Culvert Project (Project No. 4148) to Valentine Corporation of San Rafael, California for an amount of $619,369 and authorize a 15% contingency; (2) Approve the Design/ Construction Plans for said project; (3) Authorize Contract Amendment No. 2 with Dewberry/Drake Haglan to increase the contract limit by an addition of $49,970 to a new total contract amount of $141,045 and authorize a 7% contingency; (4) Accept Storm Drain Easements for facilities constructed with said project and (5) Approve budget change of $243,978 in additional funding required to complete said project.
F.5. Acceptance of the Library Parcel Tax Independent Review Annual Report For The Period Ending (June 30, 2021)
Recommendation:
Receive and accept the Report for the period ending June 30, 2021.
F.6. Authorize Contract Amendment No. 3 with CSG Consultants, Inc. for On-Call Civil Engineering Services
Recommendation:
Staff recommends that the City Council authorize the City Manager and City Clerk to execute Contract Amendment No. 3 with CSG Consultants. The amendment will increase the maximum contract amount to $515,000 and extend the term from June 30, 2022 to June 30, 2023.
F.7. Temporary Full Road Closure of portions of Overhill Road, Overhill Court and Tara Road for EBMUD's Pipeline Replacement Project Recommendation:
Orinda City Council Minutes Page 6 of 11 05.03.22
Staff recommends the City Council Approve the Traffic Control and Detour Alternatives Requested by EBMUD; and Adopt Resolution 16-22 (Traffic Order #220) Authorizing the Temporary Full Road Closure of portions of Overhill Road, Overhill Court and Tara Rd between Moraga Way and Hillcrest Drive intersections for the purposes of EBMUD to perform their Pipeline Replacement Project which involves replacement of approximately 6,000 linear feet of the existing water main.
F.8. Request Approval for Purchase of Wes Horn’s and Doug Heine’s Artwork Pieces Using Private Donations
Recommendation:
Approve Resolution No. 15-22 authorizing the purchase by the City of Orinda of artwork by Wes Horn (Surfboard Seat) and Doug Heine (Full Circle) using Private Donations.
MOTION by Councilmember Kosla and seconded by Councilmember Worth to approve Consent Calendar Items F.1.1, F.1.2, F.2, F.3 (Fay recused), F.4, F.5, F.6, F.7 and F.8.
Said motion carried by (4-0) roll call vote.
G. PUBLIC HEARING – None.
H. POLICY MATTERS
H.1. Introduction of an Ordinance Banning the Sale of Flavored Tobacco and Vaping Products
Recommendation:
Staff recommends the Council waive a full reading and introduce the proposed ordinance. Alternatively, the Council could direct staff to make changes to the proposed ordinance and bring it back at a later meeting for introduction.
City Manager Biggs introduced the item and provided a brief background.
City Attorney Osa Wolff gave an overview of the staff report, stating she has prepared an ordinance based on what the Council instructed when it discussed the matter, was available for questions, and noted that staff added some definitions and prohibition on the sale of flavored tobacco.
Councilmember Kosla referred to the definitions and other areas regarding the vaping part, and confirmed it is “flavored and non-flavored vaping” or all vaping.
Ms. Wolff clarified it is banning the sale of flavored tobacco and vaping products and said it is banning all flavored tobacco and all vaping products.
Orinda City Council Minutes Page 7 of 11 05.03.22
Councilmember Kosla cited the amount of national data as well as statistics from Miramonte, and asked if there was any local data of where the vape products are coming from such as older brothers and sisters, from Orinda stores or other local stores.
Mr. Biggs referred to statistics cited by speakers and stated the City of Lafayette has a ban and if the ordinance is adopted it would make sense to encourage the Town of Moraga to also consider a ban to have the entire Lamorinda area on the same page.
Councilmember Worth asked and confirmed with Ms. Wolff that the ordinance is strictly focused on the sale of the products and does not seek to affect products someone may have purchased in other locations.
Mayor Fay questioned who would enforce the ordinance.
Mr. Biggs stated it will become a violation of the Municipal Code and would fall more into a code compliance issue. The City will likely seek voluntary compliance from businesses with a 120-day grace period and will then identify those businesses selling the products.
Mayor Fay opened the Public Forum.
Yete McMahan, Senior Health Education Specialist, Contra Costa Health Services, Tobacco Prevention Program, thanked the Council for its consideration of restricting the sale of tobacco products in the city of Orinda. She referred to health risks of hookah and said while it is part of some cultures it is increasingly common for young people of many backgrounds which is rising among youth and diverse groups. Restricting hookah could increase health inequities in those groups most prone to nicotine addiction.
She cited evidence where communities should not exempt it from any regulation intended to protect public health, provided statistics among high school student use, and said best practices do not exempt certain products from a flavor restriction. The County can provide technical assistance on behalf of the County Tobacco Prevention Program and Sheriff’s program and are available to assist with the rollout of the implementation of the ordinance, provide technical assistance with enforcement, and spoke about public outreach tools they have developed.
Orinda City Council Minutes Page 8 of 11 05.03.22
Thomas Lawton, Government Affairs Representative for hookah manufacturer Fumari, Inc., and member of the National Hookah Community Association, said he is speaking for those who practice the centuries-old tradition of hookah and are proud members of the NHCA. They show support for taking action against youth nicotine addiction epidemic, although they asked not to implement an ordinance that criminalizes the cultural tradition of hookah. He said the staff report did not mention the cultural significance hookah has within minority communities, and also that youth’s use of hookah is at 0.8% nationally, the lowest it has ever been and dropping. He asked the City to consider including a cultural hookah exemption that mirrors SB 793 and many other local ordinances.
Jamie Rojas, National Association of Tobacco Outlets, said they represent retailers throughout the country including those in the City of Orinda and if the Council exempted hookah it would be the only city with such a ban. He then described sting operations conducted, the 100% compliance rate over the last four years, and clarified that most of the purchases are done through on-line sales and adults, family and friends who provide them to youth.
He asked to let voters decide in the November election on SB 793, requested the City review the study the FDA paid Yale University’s Public Health Department over the summer on the oldest flavor ban ordinance passed in the City of San Francisco which did not work but shifted youth’s usage of combustible traditional cigarettes, and asked the City to wait until the election to start enforcing the ordinance.
Haley Hodges said she is worried about how this ban would impact retailers and small business owners in the community who rely on neighbors to keep small businesses afloat. If the ban passes, business owners will no longer be able to sell these products which will drive those customers to a different city and result in a loss of tax revenue for Orinda. She asked the City to also wait until election results, likened the ordinance to an overreach of local government, and said adults can purchase these on-line and pass them onto family and friends.
Councilmember Worth referred to the Styrofoam ban of last year which had a grace period and it involved many restaurants. As far as Orinda, there is Safeway, gas stations which are earning significant money and she did not believe there were other entities that sell these products.
Mr. Biggs said it appears to be the two drug stores, Safeway and two convenience gas station stores, and Councilmember Worth noted the two drug stores are not going to sell any tobacco products and asked if three months is standard.
City Attorney Wolff said ordinances require introduction and adoption would not occur until the next meeting at the earliest. Then, there is a 30-day period before the ordinance takes effect. The 120 days proposed was on top of that to give retailers extra time to phase out, but this is entirely within the Council’s discretion on what grace period to provide.
Orinda City Council Minutes Page 9 of 11 05.03.22
Mr. Biggs clarified the ordinance would not be enforced until October 17, 2022 if a 120-day grace period were approved.
Councilmember Worth then described the kinds of flavored products Jaime Rich had presented to the Council targeted to young people and indicators that tobacco and flavored vaping is so harmful. She thinks this is a logical extension from all work done to date, voiced support for the ordinance, and supported amending it to have it follow the statutory requirement for ordinances and not add 120 days, as she did not believe it would be a hardship to retailers at all, particularly as they approach the summer.
Vice Mayor Miller echoed comments by Councilmember Worth and noted this is an important health decision. The Council has looked at benefits and detriments and she feels strongly the benefits weigh in favor to have it be in effect before summer months.
Councilmember Kosla echoed comments, said his only concern was telling businesses what they can sell. He suggested also working with the Two-by-Two Committee for students and getting the Town of Moraga on board, as well.
Mayor Fay said he has agreed with all comments and thinks these can be dangerous products. He asked and confirmed the proposed ordinance does not exempt hookah, supported removing the 120-grace period, suggested a letter from the Mayor be sent to the Town Manager of Moraga suggesting the ban, and Councilmembers agreed.
Ms. Wolff suggested a motion to introduce the ordinance, waiving a full reading with the change discussed that the effective date would be 30 days following adoption of the ordinance, and that staff bring the ordinance back for adoption at the next regular meeting on the Consent Calendar.
MOTION by Councilmember Worth and seconded by Vice Mayor Miller to introduce the ordinance, waiving a full reading of the ordinance with the change discussed that the effective date would be 30 days following adoption of the ordinance, and that staff bring the ordinance back for adoption at the next regular meeting on the Consent Calendar. Said motion carried by (4-0) roll call vote.
H.2. Discussion of Annual Update to the Capital Improvement Plan Recommendation:
Staff recommends the City Council conduct its first review and discussion of the annual update to the City's rolling five year Capital Improvement Plan (CIP) for Fiscal Years 2021/22-2026/27 and receive PowerPoint presentation from Staff on the Status of the 2021/22 CIP Projects. No action is being taken to approve projects or appropriate funds. The information obtained from this meeting will be used to develop formal updates to the CIP, including the addition of new projects. The City Council will have additional opportunities to review and provide input in the next two months along with the mid-cycle budget adjustments before the CIP is approved.
Orinda City Council Minutes Page 10 of 11 05.03.22
City Manager Biggs briefly introduced the item.
Scott Christie, Public Works Director, gave an overview of the staff report and PowerPoint presentation, showing highlighted projects proposed for the current year, new projects with proposed funding identified, selected projects from the CIP unfunded project list, and changes to the unfunded CIP projects list.
Regarding next steps, staff will follow the direction given by the City Council and address/incorporate any comments into the draft of the CIP Update to be reviewed by City Council in May or June 2022. Staff will further analyze the selected projects, and determine impact to the funding sources and the fund balances.
Mr. Biggs commented that the CIP will be increasingly more dynamic in that California Consulting has helped the City look for grants to use on CIP projects. Staff also looks to supplement their resources with contract assistance in taking on more projects.
Councilmember Worth referred to the changes for 3.1 Camino Pablo Medians and she confirmed with Mr. Trimble this was moving forward with half of the earlier project being funded from donations from the Garden Club and the current project still requiring a funding source.
Councilmember Worth referred to the TDA grant for the crosswalk, cited its importance for students, and asked and confirmed with Mr. Christie that once MTC makes its final appropriations letter around August, staff will move forward with obtaining feedback from stakeholders and preparing the bid package.
Mayor Fay opened the Public Forum, and there were no speakers.
Councilmember Kosla referred to the retrofit for the LED lights and asked if this requires simply replacing the lights or additional efforts. Mr. Christie said savings appear to be significant and he did not believe it would take too much effort for replacing bulbs.
Councilmember Worth voiced support and thanked staff for the CIP report and presentation. She thinks the investment in the library building and others are on point and recognized staff for their work to position the City to apply for grant funds.
Vice Mayor Miller echoed comments and voiced appreciation of the work on priorities as listed, with priority on pedestrian safety enhancements.
Mayor Fay commented that he was happy to see the lighting replacements with LED, asked to consider climate change when considering new CIP projects, EV fleet vehicle and equipment replacement, and suggested ways to keep police vehicles systems powered up without having their engines running.
Mayor Fay concluded the item and confirmed staff had direction.
Orinda City Council Minutes Page 11 of 11 05.03.22
I. COUNCILMEMBERS’ REPORTS – Vice Mayor Miller reported on the Solid Waste Authority, reported the Director will be moving on effective July and the Board voted to extend the existing recycling and solid waste contracts with contractors.
Mayor Fay reported on their first meeting of the Two-by-Two Committee with MOFD which resulted in significant progress. The Committee asked staff and Chief Winnacker to work to put together an actionable plan they could recommend within a month and the Chief will be making a presentation at the May 11th SSTOC meeting.
J. CITY MANAGER’S REPORT – City Manager Biggs congratulated Scott Christie who is now the City’s permanent Public Works Director and also Siva Kumar Natarajan, the City’s permanent City Engineer. The 2021 paving project which was delayed has kicked off and people can see what streets will be impacted on the City’s website under Public Works. The City will start work on the El Toyota sink hole tomorrow, and the City will have a presence on Saturday from 10:00 a.m. to 12:30 p.m. at the Fire District’s Open House at the station in the Village portion of downtown Orinda.
K. MATTERS INITIATED – None.
L. ADJOURNMENT
The Regular Meeting was adjourned at approximately 10:08 p.m. in memory of Norman Moneta to the next Regular Meeting on Tuesday, May 17, 2022 at 7:00 p.m. ______________________________________
Sheri Marie Smith, City Clerk