DECEMBER 05, 2006

MEETING MINUTES

CLOSED SESSION/REGULAR MEETING

LIVINGSTON CITY COUNCIL

DECEMBER 5, 2006

A Closed Session/Regular Meeting of the Livingston City Council was held in the City Council Chambers on December 5, 2006, with Mayor Samra presiding.

CLOSED SESSION

Mayor Samra opened the meeting at 5:30 p.m.

ROLL CALL

Mayor Gurpal Samra

Mayor Pro-Tem Frank Vierra

Council Member William Ingram

Council Member Rodrigo Espinoza

Council Member Roy Soria

Also present were City Manager Warne and City Attorney Hallinan.

The Council/Staff went into Closed Session at 5:31 p.m. to discuss the following matters:

1. Conference with Legal Counsel: Existing Litigation—Government Code Section 54956.9(a). Foster Poultry Farms, Inc. v. City of Livingston, Merced County Superior Case No. 149443.

2. Conference with Legal Counsel: Existing Litigation—Government Code Section 54956.9(a). City of Livingston v. Foster Poultry Farms, Inc., Merced County Superior Court Case No. 149647.

3. Conference with Legal Counsel: Existing Litigation—Government Code Section 54956.9(a). Foster Poultry Farms, Inc. v. Richard Warne & Paul Creighton, United States District Court, Eastern District Court of California: 1:06-CV-00931-OWW-DLB.

4. Conference with Legal Counsel—Anticipated Litigation. Significant Exposure to Litigation. Government Code 54956.9(b). 3 Cases.

5. Conference with Labor Negotiator—Government Code Section 54957.6.

Agency Negotiator: City Council.

Unrepresented Employee: City Manager.

At the hour of 6:25 p.m., the Council and Staff were joined by City Engineer Gottiparthy, Public Works Director Creighton, Larry Parlin, and Mark Mulkerin.

The Closed Session ended at 7:03 p.m.

OPEN SESSION

The Council/Staff came out of Closed Session and into Open Session at 7:04 p.m.

REGULAR MEETING

Mayor Samra opened the meeting at 7:14 p.m.

PLEDGE OF ALLEGIANCE

The pledge of allegiance was recited.

ROLL CALL

Mayor Gurpal Samra

Mayor Pro-Tem Frank Vierra

Council Member William Ingram

Council Member Rodrigo Espinoza

Council Member Roy Soria

CLOSED SESSION ANNOUNCEMENTS

Mayor Samra said the City Council had negotiated and approved a Compromise Employment Agreement with the City Manager. He asked City Manager Warne to explain the contract amendments.

City Manager Warne gave the following summary of the contract changes:

1. The number of votes needed to discharge the City Manager is four (4) votes.

2. In accordance with State law, there would be a three (3) month cooling off period after an election or appointment of a City Council Member during which time the City Manager could not be terminated.

3. In the event of termination, the City Council would give the City Manager thirty (30) days notice.

4. Severance pay is twelve (12) months.

Mayor Samra thanked City Manager Warne for his willingness to work with the Council and come to an agreement on the contract changes.

Council Member Soria commented that it was a difficult decision; however, the Council and City Manager came to an agreement in an effort to move forward.

Mayor Pro-Tem Ingram commented that the contract changes are for the betterment of the community and he was happy with the outcome.

CHANGES TO THE AGENDA

Remove Warrant No. 61399 from the Consent Calendar because it was already placed on the regular agenda as Item No 11.

DEVIATION FROM AGENDA

Police Chief Eldridge spoke about Toys-for-Tots and the coat drive and noted the Department needs the schools’ help to identify students who are in need of coats.

Chief Eldridge gave an update on MDT’s and talked about the unique system the Police Department is now using. He said once the system is in operation he would like to make a presentation to the Council.

Chief Eldridge commented on the bad publicity in the newspapers regarding the City Manager. He relayed that he has been working for the City for 15 years and said the City Manager is a good man and he has a high regard for him. Chief Eldridge added that the City Manager is moving the City forward and it was his hope that the Council will work with him. He added that other staff members that felt as he did should come forward and show their support.

Assistant City Manager Lewis agreed with Chief Eldridge and said that in her 30 years of city and county employment she has never worked with a more professional person.

AWARDS, PRESENTATIONS, APPOINTMENTS AND PROCLAMATIONS

· None.

ANNOUNCEMENTS AND REPORTS

Supervisor John Pedrozo Announcements and Reports.

Nick Dawidczik, Supervisor Pedrozo’s assistant, commented the only announcement the Supervisor had is that on December 12th at 6:00 p.m., the Board of Supervisors is having a meeting for the Riverside Motorsports Park and the public will be given an opportunity to speak.

City Council Members’ Announcements and Reports.

Council Member Espinoza

· Commented that curbside recycling is going well.

· Relayed that residents are not happy with the change from 300 gallon cans to 90 gallon cans and suggested the Council have a workshop about curbside garbage pickup versus alley pickup.

Council Member Soria

· Commented that it was brought to his attention that there are no sidewalks or lighting at the Vintage West Apartments on First and Front Street, directly behind the Casitas Del Sol. He asked the City Manager to bring this matter back to the Council for an update.

Mayor Pro-Tem Ingram

· Concurred with Council Member Espinoza about the garbage cans and noted the City needs to add green waste containers. He also agreed with Council Member Soria and commented that he has gone out on emergency calls with the Fire Department many times and the apartment area is very dark.

Mayor’s Announcements and Reports.

· No reports.

CITIZEN COMMENTS

Dwight Benafield, 1330 Queen Way, read a statement and said he has always been supportive of the City Council; however, he questioned the $46,000 spent for the attorney hired to give guidance to the Council during the election.

Mr. Benafield agreed with staff’s comments regarding the City Manager; however, he does not agree with the manner in which the contract changes were handled or the changes made. He added that these actions are very serious and not in favor of the community and who ever was responsible should be ashamed.

Bill Thompson, 11200 Cressey Road, spoke on behalf of Merced County agriculture and showed maps of the agricultural land in this area. He further spoke about the proposed Riverside Motorsports Park and addressed the reasons why the Council should not support this project.

PUBLIC HEARINGS

1. Resolution Approving Site Plan/Design Review 2006-05 for the Development of the Livingston Commons Shopping Center.

Community Development Director Kenney and City Engineer Gottiparthy gave an overview of the proposed project and stated that the left turn is unsafe for the project.

Mayor Samra opened the Public Hearing at 9:14 p.m.

Mark Blancarte, developer, presented an overview of the project.

Galan Grant, architect, also gave a presentation and showed a diagram of plans for the project.

Mr. Blancarte pointed out that a traffic study has been completed and pointed out that the left turn is safe under current traffic conditions.

Council Member Soria stated he has been following this project from the beginning and the safety issue is very important. He said he is keeping in mind that there are plans for a signal light at the intersection of “B” Street and Winton Parkway in the vicinity of the proposed shopping center.

Mr. Blancarte said that Blake-Hunt Ventures paid for the traffic study, and the study states that the left turn will work. He added that once the traffic pattern is established and the left turn in becomes a problem they will close off the left turn.

Council Member Vierra read page 2 of the traffic report and said that the left turn in was the first issue he wanted to address. He proceeded to read the traffic report and said the City did not want to be sued if an accident occurred.

Mr. Blancarte commented that the developers also do not want to be sued.

Council Member Vierra asked Director Kenney about the CC and R’s on the awnings, pointing out the awnings are not going to last forever.

Director Kenney asked the developer how often the awnings will need to be replaced.

Mr. Blancarte replied about five years. He added that the awnings they are proposing are lighter in color and less likely to fade.

Council Member Vierra wanted a condition of approval to keep the awnings maintained.

Frank Borges, representing Gallo Land Company, explained that a condition of approval was not necessary because the developer will use triple net leases.

Brandon Friesen, 929 Opal Court, commented that the triple net leases should be sufficient.

Mr. Borges stated the CC and R’s that Mr. Gallo is proposing include trees, but no awnings.

Council Member Vierra asked about the delivery hours and why the hours are restricted.

Council Member Soria commented that he attended the Planning Commission meeting where the shopping center was considered and he did notice there were restricted delivery hours and he wanted to bring this up because there should not be any restricted hours.

Mayor Samra asked if the developers were in agreement with having no restricted hours.

The developers agreed.

Mayor Pro-Tem Ingram said there had been some discussion in 2000 about erecting a Welcome to Livingston sign with logos for all retail businesses.

Council Member Vierra raised a question about outside storage.

Director Kenney explained that outdoor storage were pallets and recycling behind the store that would be screened by trees.

Council Member Vierra asked if these were final landscape plans.

Director Kenney replied that the developers are required to turn in three sets of plans for staff review and approval.

Jose Benavides from JKM, Fresno, stated he prepared the traffic impact study and he responded to some of the questions raised by Council Member Vierra.

Council Member Vierra asked when the traffic study was prepared did Mr. Benavides take into consideration that the Travel Centers of America would be located across the street from the shopping center.

Mr. Benavides commented that left turn out would be crossing three lanes of traffic.

Councilmember Vierra commented that his main concern is health and safety.

Councilmember Espinoza stated that as the City Council, it is their responsibility to take action. He subsequently asked the City Attorney if they could close off the left turn if it becomes a problem.

Mayor Pro-Tem Ingram expressed concern about the left turn out and said he had no problem with the left turn in.

Mayor Pro-Tem Ingram added that if the left turn in becomes a problem, the City has the right to immediately close it off. He noted the traffic between the Winton Parkway ramps is horrendous and this is where the most congestion is.

Mayor Pro-Tem Ingram said he does not have a problem with the left turn in as long as closing it off is a condition of approval or it becomes unsafe.

Mayor Samra asked Director Kenney to elaborate further on the parking spaces.

Director Kenney explained that the City requires a 9×20’ parking space. She noted the developer proposes a 9×10’ parking space.

Mr. Grant explained that the typical parking space in other cities is 9×18’ or 9×19’. He said he knew of no city that has a 9×20’ standard. Mr. Grant added that this project could have up to 25% of small car (sc) parking spaces.

Director Kenney asked the City Attorney about liability with the left turn in.

The City Attorney replied the left turn in would be a big liability issue.

Mr. Borges commented that City Manager Warne is his favorite City Manager. He said he has worked with the last four city managers and one of the best things he can say about Mr. Warne is that he is very accessible.

In reference to the CC and R’s which regulate the awnings, Mr. Borges said Mr. Gallo loves redwood trees.

Dennis Wells 1159 Second Street, voiced concern about the parking. He feels that parking at Liberty Market and Sam’s Food City is a waste of his time. Mr. Wells said he has a large vehicle and it is difficult to maneuver his truck in the stores’ parking lots.

Wayne Koehn, representing the Livingston Union School District, was concerned about the traffic that will be coming down “B” Street and Winton Parkway, especially when school is opening and closing. He added there is currently a traffic issue in front of school offices and this would add to the problem. Mr. Koehn suggested that a sign be placed on “B” Street warning of a school zone ahead and perhaps flashing lights could be placed at the crosswalks.

Brandon Friesen spoke in favor on the project.

Patricia Backers, a member of the Citizens Advisory Committee, commented about almost being in an accident in a similar situation with a left turn out and commented the lane reduction area between Joseph Gallo Drive and the highway is too short.

Ms. Backers asked how soon it will be before they will make it six lanes.

City Engineer Gottiparthy replied there is no project in the plans and there is a need for funding.

Mayor Samra closed the Public Hearing at 9:29 p.m., as there were no further comments.

Mr. Grant addressed the matter of parking spaces and said that big stores do not like angled parking.

City Attorney Hallinan requested the City Engineer read out loud certain conditions, the left turn in and the bond conditions. He stated the awnings will be one of the conditions included in the lease agreement.

Mr. Grant commented this would not be problem.
City Engineer Gottiparthy proposed that City staff and the developers work together to resolve the issues and move forward with the project.

Motion: M/S Soria/Ingram to adopt Resolution No. 2006-84, as amended, approving Site Plan/Design Review 2006-05 for the Development of the Livingston Commons Shopping Center. The motion carried 5-0 by the following vote:

AYES: Council Members: Espinoza, Ingram, Soria, Vierra, Samra

NOES: Council Members: None

ABSENT: Council Members: None

RECESS

The Council took a short break before continuing with the meeting.

The meeting resumed at 9:42 p.m.

2. Resolution Approving Site Plan/Design Review 2006-07 for the Development of a Three-Unit Apartment Building at 730 Eighth Street.

The item was presented by Community Development Director Kenney.

Lupe Montanez, applicant, did not have any comments but was present to answer any questions that arose.

Council Member Espinoza said this is a good project that will improve the area.

Council Member Soria agreed and said Mr. Montanez did everything the City asked of him.

Council Member Vierra asked how the people on the second floor will gain access to their storage and patio areas.

Director Kenney replied they will come down the front stairs and around the building.

Council Member Vierra said he was glad to see that staff added a condition about details for the front because he thought it looked plain.

Mayor Pro-Tem Ingram favored the project and hoped it will revitalize the neighborhood.

Ana Montanez asked about a patio for the second floor and asked if she needs to add a patio.

Council Member Vierra commented that where he lives there is no balcony or storage

on the second floor. He added the Council is willing to work with staff in any recommendation they may have for the Council to approve the project.

Mayor Samra opened the Public Hearing at 10:00 p.m.

Warren Urnberg, 1331 Eighth Street, raised a question about the laundry. He noted he has seen people hang their laundry out on the trees and in yards.

Director Kenney noted that each unit has their own laundry facility.

Wayne Koehn said he had no problems with this project; however, he wanted to remind the applicant of the school impact fees.

Mayor Samra Closed the Public Hearing at 10:01 p.m., as there were no further public comments.

Motion: M/S Ingram/Espinoza to adopt Resolution No. 2006-85, approving Site Plan/Design Review 2006-07 for the Development of a Three-Unit Apartment Building at 730 Eighth Street. The motion carried 5-0 by the following vote:

AYES: Council Members: Espinoza, Ingram, Soria, Vierra, Samra

NOES: Council Members: None

ABSENT: Council Members: None

2. Introduce and Waive the First Reading of an Ordinance of the City Council of the City of Livingston Adding Livingston Municipal Code (LMC) Section 5-4-9, Outdoor Dining Areas and Modifying LMC Section 5-7-2 Definitions, Outdoor Dining Areas, and Establishing a $75 Fee for Outdoor Dining Permits.

Community Development Director Kenney presented the agenda item.

Council Member Espinoza commented he did not like the way this was handled when Little Caesar’s Pizza opened.

Council Member Vierra had questions about the division between the people who are walking and the people that are eating and suggested a fence be built around the seating area.

Director Kenney asked if the Council would like this to be placed as a condition.

The Council deferred this matter to staff for review of each application.

Mayor Pro-Tem Ingram said it would be the owner’s responsibility to pay for the fees and he would like to change the fees to $50 instead of $75.

It was the consensus of the Council to change the permit fee to $50.

Mayor Samra opened and subsequently closed the Public Hearing at 10:17 p.m., as there were no comments from the public.

Motion: M/S Ingram/Samra to waive the first reading and introduce Ordinance No. 556, an Ordinance of the City Council of the City of Livingston Adding Livingston Municipal Code (LMC) Section 5-4-9, Outdoor Dining Areas and Modifying LMC Section 5-7-2, Definitions, Outdoor Dining Areas, and Establishing a $50 Fee for Outdoor Dining Permits. The motion carried 5-0 by the following vote:

AYES: Council Members: Espinoza, Ingram, Soria, Vierra, Samra

NOES: Council Members: None

ABSENT: Council Members: None

CONSENT CALENDAR

The following items were presented for Council consideration under the consent calendar:

4. Resolution No. 2006-86 Accepting the Improvements for the Rehabilitation of Various Streets – 2006 Project (Project A and B); Directing the City Clerk to Record a Notice of Completion with Merced County; Authorizing the City Manager to Release Performance and Material Bonds and the 10% Retention to the Contractor; and Appropriating Additional Funding to Cover Costs of Additional Project Construction.

5. Approval of Minutes of City Council Meeting Held on November 17, 2006.

6. Approval of Minutes of City Council Meeting Held on November 21, 2006.

7. Approval of Warrant Register Dated November 29, 2006.

Motion: M/S Soria/Ingram to approve the consent calendar items with amendments to the Minutes of the Special Meeting of November 17, 2006, and the Regular Meeting of November 21, 2006. The motion carried 5-0.

DISCUSSION AND POTENTIAL ACTION ITEMS

8. Resolution Approving Application and Contract Execution to Apply for Funding from Department of Water Resources (DWR) Agricultural & Urban Water Use Efficiency Grant (Proposition 50), and Authorizing the City Manager to Submit the Application and Act on the City’s Behalf for Matters Pertaining to this Application.

City Engineer presented the agenda item. Discussion followed.

Motion: M/S Vierra/Ingram to adopt Resolution No. 2006-87, approving an application and contract execution to apply for funding from the Department of Water Resources (DWR) Agricultural & Urban Water Use Efficiency Grant (Proposition 50), and authorizing the City Manager to submit the application and act on the City’s behalf for matters pertaining to this application. The motion carried 5-0 by the following vote:

AYES: Council Members: Espinoza, Ingram, Soria, Vierra, Samra

NOES: Council Members: None

ABSENT: Council Members: None

9. Award of Bid – Memorial Park Improvements.

The agenda item was presented by City Engineer Gottiparthy.

Council Member Soria recommended moving forward with the project.

Council Member Espinoza asked the City Manager where the money was coming from to complete the improvements.

City Manager Warne explained from developers, Foster Farms and the Rotary Club.

Motion: M/S Ingram/Soria to adopt Resolution No. 2006-88, awarding the bid for the Memorial Park Improvements Project to Lockwood General Engineering, Inc. and authorizing the City Manager to enter into an agreement with Lockwood General Engineering, Inc. The motion carried 5-0 by the following vote:

AYES: Council Members: Espinoza, Ingram, Soria, Vierra, Samra

NOES: Council Members: None

ABSENT: Council Members: None

10. City Council Guidance on AB 1234 Ethics Training.

City Manager Warne presented the agenda item.

Council Member Vierra commented he doesn’t like the fact that there is not a live person to answer questions if the training is done on line.

Since time is of the essence, it was suggested that everyone take the training on line and later hold a workshop if someone needs to ask questions.

It was suggested that City Manager Warne check on dates of neighboring cities to see if the Council could take the training with them. The only other option would be to take the training on line.

11. Discussion of Legal Expenses – Warrant No. 61399.

City Manager Richard Warne presented

Councilmember Espinoza did not agree with the payment of legal fees because he felt he was not properly informed of the retention of the legal firm.

Council Member Soria said the City should pay the legal expenses.

Council Member Ingram initially was not in favor of paying the legal expenses, but he agreed to make payment in an effort to put the matter behind them.

Mayor Samra agreed and said to pay the expenses and move forward.

Council Member Ingram made a motion to pay the legal fees. The motion was seconded by Mayor Samra and carried 4-1-0, with Council Member Espinoza voting no.

12. City Manager Announcements and Reports.

· No reports.

ADJOURNMENT

The meeting was adjourned by consensus at 10:48 p.m.

_______________________________

City Clerk of the City of Livingston

APPROVED: December 19, 2006

_________________________

Mayor or Mayor ProTempore

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