The Santa Clara City Charter requires a competitive bid process when public funds are used.

The 49ers don't like this requirement.  They want to keep the contractor they've been working with for a few years, but at the same time, they want public dollars.


So the 49ers went to Sacramento to take away our right to vote on whether or not they could bypass our city charter's requirement for competitive bidding.

 

Here's a July 10, 2010 article by the San Jose Mercury News reporter Karen de Sa about how laws are really made in Sacramento.   The 49ers end run around Santa Clara's charter is described:

"The team was frustrated that the city's charter required them to put the contract to build the stadium out for competitive bid. Alquist's bill exempted the stadium from the bid mandate.

Alquist said she came up with the idea herself. That surprised some local officials: "It's hard for me to believe the 49ers didn't go in and ask for this bill," said Santa Clara Councilman William Kennedy, a stadium opponent. What's more, city staff said the team had mentioned during negotiations that it might turn to the Legislature for help.

"I have no idea what the 49ers said to people at City Hall," Alquist said, explaining that she simply wanted to help expedite the process. "I had nothing to do with that."

Whatever the bill's origin, the 49ers became the driving force. The team spent $73,779 on lobbyists who schmoozed the governor and the Legislature on the bill, according to reports filed with the secretary of state. The bill sailed through both houses, although legislative staffers cautioned of "a bad precedent," noting that 125-year-old "competitive bidding requirements exist to prevent favoritism, corruption and waste of public money."  "

 

http://www.mercurynews.com/top-stories/ci_15452125

 

The Term Sheet signed on June 2, 2009 between the City of Santa Clara and the 49ers promised us 2 votes (Section 6.3):

  • The first on the funding for the stadium, and
  • The second on whether or not the 49ers could bypass our competitive bid process.

The ink on the Term Sheet wasn't even dry when the 49ers went to State legislators Elaine Alquist and John Torrico to have bill SB43 gutted and re-written just for the 49ers.

 

At the Oct. 27, 2009 city council meeting in which our city council majority voted to approve SB43 and take away our right to vote, the city manager said that, prior to signing the Term Sheet, the 49ers had mentioned several times in the course of meetings to negotiate the Term Sheet that they wanted to look at a state law to avoid the competitive bid process required by our charter.


Here's clips from the Oct. 27th City Council meeting that shows the taking away of our right to vote.


Also at the Oct. 27, 2009 council meeting, Council member Will Kennedy said that he thought the 49ers did some polling and found out that voters were more likely to vote the stadium down if there were two votes.   In fact, in April/May 2009 before the Term Sheet was signed, the 49ers polled Santa Clarans to ask, 'Would you support or oppose allowing the 49ers to bypass Santa Clara's city charter requirement for competitive bidding?' Also at that meeting Council member McLeod noted that we haven't overridden our charter for other businesses before.


Conclusion-the 49ers knew before they signed the Term Sheet on June 2, 2009 that, while they promised in writing to let us vote on a city charter bypass, they intended to take that vote away from us through state legislation.  And they did.  46,000 Santa Clara voters were disenfranchised by the 49ers,our state Senator Elaine Aquist, and our city council majority helped them do it with SB43.


The June 30, 2009 version of SB43 shows the gutted original bill together with the re-write solely for the 49ers benefit.

http://www.leginfo.ca.gov/pub/09-10/bill/sen/sb_0001-0050/sb_43_bill_20090630_amended_asm_v96.pdf

 


Mayor Mahan and Councilmembers Matthews and Moore went to Sacramento to lobby for SB43 even though they too had promised us two votes.   On July 8th and September 9th, 2009, the stadium proponents on our own City Council went to Sacramento and urged State Legislators to pass SB43 - and they gave away our right to vote on our own City Charter.


It was reported that our elected leaders thought two votes would 'confuse' us (San Jose Mercury News).


On July 8, 2009, at the Local Government Assembly Committee meeting in Sacramento,

Those present in support of taking away our right to vote were:

Patricia Mahan, Mayor of the City of Santa Clara
Santa Clara and San Benito Counties Building & Construction Trades Council
San Francisco 49ers
http://www.leginfo.ca.gov/pub/09-10/bill/sen/sb_0001-0050/sb_43_cfa_20090707_151024_asm_comm.html

On Sept., 9, 2009 at the Local Government Senate Committee meeting,

Those present in support of taking away our right to vote were:

San Francisco 49ers 
Santa Clara & San Benito Counties Building & Construction Trades Council 
Silicon Valley Leadership Group 
State Building and Construction Trades Council of California 
Santa Clara Mayor Patricia M.Mahan 
Santa Clara Vice Mayor Jamie L. Matthews 
Santa Clara City Councilmember Kevin Moore
 
Those present opposed to SB43 (those present who wanted Santa Clarans to have two votes):
Santa Clara City Councilmember Will Kennedy
Santa Clara City Councilmember Jamie McLeod
Members of Santa Clara Plays Fair (in person, and via email/fax and phone calls)

http://www.leginfo.ca.gov/pub/09-10/bill/sen/sb_0001-0050/sb_43_cfa_20090909_180649_sen_comm.html


So: California's State Government Code now contains a law SB43 which has only a single purpose - To exempt the San Francisco 49ers from Santa Clara's City Charter:


"This bill would authorize the Santa Clara Stadium Authority to let a design-build contract without utilizing a competitive bid process for the stadium construction project,..."

[Emphasis ours.]

 

The state legislative analyst sounded some warnings about SB43:

The following are excerpts from the Legislative Analysis of SB43:


“The City and team officials believe that the team should get to hire the general contractor of its choice."


“The City Charter and the Community Redevelopment Law both require competitive bidding.  SB 43 exempts the Stadium Authority from these competitive bidding requirements.   The Committee may wish to consider whether Santa Clara's situation is unique enough to warrant this special exemption.  If legislators allow a precedent-setting exemption so that Santa Clara can lure an NFL franchise, how can they say "no" when other communities want their own exemptions to attract professional sport franchises, other big businesses, and attractions?  It's a slippery slope.”


“The design-build language in current law is based on a compromise struck in 2000 among local officials, labor groups, and contractors.  Local officials wanted the flexibility and potential cost savings offered by design-build contracts.  Labor unions wanted to ensure that counties pre-qualify employers to protect workers' interests.  Contractors wanted to be sure they had fair access to county contracts.”

“This bill breaches the carefully crafted compromise reached in 2000 between all interested stakeholders by not including any of the language included in every other design-build authorization law.  There is not a single cross-reference to existing design-build laws.  This bill states that all existing design-build laws are legally inapplicable in this situation.  Furthermore, this bill goes another step beyond existing design- build laws and allows the JPA to decide how subcontractors will be hired.   According to the author's office, the City and 49ers have already agreed that 80 percent to 85 percent of all subcontracting work will be required to be done with local union labor.  The Legislature may wish to consider whether it wishes to diverge from the well-established precedent of the 2000 compromise language.”


Sources:

June 30, 2009 version of SB43 (shows cross outs, bill gutted and re-written to favor the 49ers)

http://www.leginfo.ca.gov/pub/09-10/bill/sen/sb_0001-0050/sb_43_bill_20090630_amended_asm_v96.pdf

Local Government Assembly Committee meeting:

http://www.leginfo.ca.gov/pub/09-10/bill/sen/sb_0001-0050/sb_43_cfa_20090707_151024_asm_comm.html

Local Government Senate Committee meeting:

http://www.leginfo.ca.gov/pub/09-10/bill/sen/sb_0001-0050/sb_43_cfa_20090909_180649_sen_comm.html

Final version of SB43:

http://www.leginfo.ca.gov/pub/09-10/bill/sen/sb_0001-0050/sb_43_bill_20091011_chaptered.html

Term Sheet (see Section 6.3 - promised us 2 votes)

http://santaclaraca.gov/ftp/csc/pdf/49ers-20090601-Exhibit-5.pdf


SB43 authored by state Senator Elaine Alquist, D-Santa Clara allows the 49ers and the City of Santa Clara more than the ability to bypass the City of Santa Clara Charter in their quest to use a design-build approach to construct a stadium in Santa Clara, CA, for the San Francisco 49ers. SB43 took away the right of Santa Clarans to vote on a change in their city charter AND:

In addition, SB43 made the California Department of Transportation (CalTrans) responsible for many facets, including construction and operation of State highway improvements related to the construction of the San Francisco 49ers stadium in Santa Clara.

SB43 states that: CalTrans expenses “shall be included in the department's capital outlay support program for workload purposes in the annual Budget Act.”

Is it customary for the California State Department of Transportation to be required to pay for highway improvements deemed necessary for the construction and operation of a project such as this?

The citizens of California have the right to know that their tax dollars, which are in such short supply, are being used to make highway improvements necessitated by the building of the 49ers stadium.  Why aren’t the 49ers paying for the necessary improvements?

The following are excerpts from the Secretary of State’s Chaptered 330, Statutes of 2009 on October 11, 2009:

 

“This bill would provide that for state highway improvement projects deemed necessary by the Department of Transportation based on the construction and maintenance of the stadium, the department is the responsible agency for project development services, as specified.”

“  (i) If the construction and operation or maintenance of a stadium as contemplated by this section is deemed by the Department of Transportation under otherwise applicable law to require improvements on the state highway system, all of the following provisions shall apply:”

“(1) Notwithstanding any other provision of this section, for any project on the state highway system deemed necessary by the department due to the construction, operation, or maintenance of the stadium as contemplated by this section, the department is the responsible agency for the performance of project development services, including performance specifications, preliminary engineering, prebid services, the preparation of project reports and environmental documents, project design, and construction inspection services. The department is also the responsible agency for the preparation of documents that may include, but need not be limited to, the size, type, and desired design character of the project, performance specifications covering quality of materials, equipment, and workmanship, preliminary and final plans and specifications, and any other information deemed necessary to design and construct a project that meets the needs of the department.”

“(2) The department may use department employees or consultants to perform these services, consistent with Article XXII of the California Constitution. Department resources, including personnel requirements necessary for the performance of those services, shall be included in the department's capital outlay support program for workload purposes in the annual Budget Act.”