CLOSED SESSION/REGULAR MEETING
LIVINGSTON CITY COUNCIL
JULY 7, 2009
A Closed Session/Regular Meeting of the Livingston City Council was held on July 7, 2009, in the City Council Chambers with Mayor Varela presiding.
Mayor Varela opened the meeting at 5:30 p.m.
Mayor Daniel Varela, Sr.
Mayor Pro-Tem Rodrigo Espinoza
Council Member Frank Vierra
Council Member Margarita Aguilar
Council Member Martha Nateras
Also present were City Manager Richard Warne, City Attorney Jonathan Hobbs, and Assistant City Manager/Finance Director Vickie Lewis.
The City Council went into Closed Session to discuss the following matters:
1. Public Employee Performance Evaluation.
Government Code Section 54957.
Title: City Manager.
2. Conference with Legal Counsel—Significant Exposure to Litigation.
Government Code Section 54956.9(b).
Significant Exposure to Litigation (3 Cases).
The City Council came out of Closed Session and into Open Session.
CALL TO ORDER
Mayor Varela called the meeting to order at 7:00 p.m.
PLEDGE OF ALLEGIANCE
The pledge of allegiance to the flag was recited. Mayor Varela led the pledge of allegiance.
Mayor Daniel Varela, Sr.
Mayor Pro-Tem Rodrigo Espinoza
Council Member Frank Vierra
Council Member Margarita Aguilar
Council Member Martha Nateras
CLOSED SESSION ANNOUNCEMENTS
Mayor Varela stated there were no reportable actions taken by the City Council.
CHANGES TO THE AGENDA
Council Member Espinoza asked that citizen comments be moved ahead of the scheduled public hearings. He also requested that Warrants #68216 and #68230 be pulled for separate discussion from the consent calendar. No member of the City Council objected to Council Member Espinoza’s requests..
AWARDS, PRESENTATIONS, APPOINTMENTS AND PROCLAMATIONS
1. Presentation of Five Year Service Pin to Police Officer Mike Baker.
Mayor Varela stated that the City had a five-year service presentation this evening.
Police Chief Eldridge made the presentation. He commented that Officer Mike Baker could not be present tonight because he was on vacation. He stated that Officer Baker has worked for the City of Livingston for the last five years. Officer Baker is responsible for gang suppression in Livingston. He has worked as Livingston’s representative on the Merced County Gang Task Force for the last two years.
ANNOUNCEMENTS AND REPORTS
Supervisor John Pedrozo Announcements and Reports.
Juan Corona, Supervisor Pedrozo’s Administrative Assistant, stated that Supervisor Pedrozo was appointed as Chairman of the Merced County Association of Governments (MCAG) Board of Directors. Mr. Corona commented that he and Supervisor Pedrozo had the privilege of attending the Portuguese Festival this weekend and they had a great time. He thanked Council Member Nateras for the chili peppers.
Mayor Pro Tem Vierra commented that the Saturday, July 4 Modesto Bee newspaper had an article that some Bay Area residents were not happy that the high speed rail route is through Pacheco Pass from the Central Valley to the Bay Area. This group feels, like the Central Valley, that the high speed rail route should go through the Altamont pass.
Mr. Corona said Supervisor Pedrozo was in Sacramento with another group of Merced County officials working to get a high speed rail station in Merced and to have a maintenance facility at Castle.
City Council Members’ Announcements and Reports.
Council Member Margarita Aguilar
· Thanked those who attended the July 4th activities in Memorial Park. She said that there was a great turnout and the weather was great.
· Commented that Scott Newman, Merced County Fire Department Division Chief, was present. She thanked him for being at the meeting and hoped that he would speak under the public comment portion of the meeting.
· Commented regarding sending out a Request for Proposals (RFP) to obtain costs for a facilitator. She said the audience had prior information on what a facilitator does. The facilitator will help the City Council with goal setting for the year. It also includes funds to help the City Council conduct an evaluation of the City Manager. She made a motion to have an independent facilitator considered. She asked the City Attorney to comment and correct her if she is wrong.
City Attorney Jonathan Hobbs said he wished to clarify Council Member Aguilar’s request. He stated that Council Member Aguilar could bring this issue up now or at the end of the meeting to have this item considered as a future agenda item. The City Council can direct that this item be placed on a future agenda, but it cannot have substantive discussions on whether or not hiring a facilitator is a good idea or bad idea at this meeting. She can ask the City Council to place this item on the next agenda and ask staff to bring back a Request for Proposals to hire a facilitator for City Council consideration. The City Council would have time to review the Request or Proposals (RFP) prior to the meeting and before it was sent out to consultants.
Council Member Aguilar made a motion to have the hiring of a facilitator placed on the City Council’s meeting agenda and have staff prepare a Request for Proposals (RFP) for City Council consideration. Council Member Aguilar’s motion was seconded by Council Member Espinoza and failed to carry by the following roll call vote:
AYES: Council Members: Aguilar, Espinoza
NOES: Council Members: Nateras, Varela, Vierra
ABSENT: Council Members: None
Mayor Varela said he understood the value of having someone work with people and help and encourage them. However, he would like to see if the Council could work together for about six months and then maybe look at the matter again later. He said that with the
budget as it is today and the costs for a facilitator, he would have to say no to spending money for a facilitator at this time.
Ms. Aguilar said her motion is to bring back the Request for Proposals (RFP), and not necessary to hire a facilitator. She wants to make sure the citizens know that. Her request was to look at the numbers and consider it.
Mayor Varela respectfully asked if everyone would please hold their applause. He said this is what we are trying to figure out, a win-win for our community, and not be divisive. We are trying to be diverse. He said he is not trying to take time here, but it is time to return to ethics and professionalism. He said Livingston is a great community and there are many great things happening. He asked people to be positive and use wisdom in their critical comments about the community.
Council Member Rodrigo Espinoza
· Council Member Espinoza commented that the Parkside Subdivision park/detention pond has not been completed and that sod has not been placed on the property. He said that the weeds have grown up on the property and asked if maintenance had been turned over to the City. City Manager Warne stated that the property maintenance was still the responsibility of the developer. The developer had installed the sprinkler system, but not the sod. He said that the City was concerned about the weeds and the maintenance of the property. He said that the developer has been sent a Notice-of-Violation. City Manager Warne said that he had been in contact with David Agee, the developer’s representative. City Manager Warne said that he was promised by the developer’s representative that they would move forward and clean-up the property.
· Commented that written minutes of Council meetings have not been available for citizens’ review. He said the minutes should be made available to the public instead of having them wait for a month or more to review them.
City Manager Warne stated that the recent meetings have been long, controversial and tedious due to, among other reasons, the discussion of the water and wastewater rate increases. He said that there had also been threats of litigation. He said if someone wants an audio recording of a meeting to listen to what took place, they are welcome to come to City Hall and get an audio recording within a couple of days after the meeting. He said that the written minutes that correspond with the audio recording takes some time to process because the meetings are so long and difficult. For example, the written minutes of the meeting of May 5, 2009, were over 20-single spaced pages. Staff is being careful and taking the time to be sure that the written minutes accurately reflect what was said in the meetings.
· Commented on the Federal Land and Water Conservation grant the City received for basketball courts at the Livingston Sports Complex. He said he was told by the City Manager that the City did not have money to complete the project. Mr. Espinoza said he knows that the City was in better financial shape three years ago. He also knows that City matching funds are required in order to complete the project. He said he brought this up when he was the City Council liaison on the Parks and Recreation Commission. However, the project has not moved forward. We do not want to lose the grant.
City Manager Warne said that the City received a Federal Land and Water Conservation grant for $50,000 for the construction of the basketball courts at the Livingston Sports Complex. These grants come from off-shore oil and gas leases from the federal government. Livingston was one of three cities in this part of California that received the grant. There is a City match of $80,000 for the basketball courts. The basketball courts do not need to be built until 2011. This capital project along with other capital projects have been put on hold due to the recession and the reduction of City revenues. The City is not in any danger of losing the grant. Livingston is just being prudent in reducing expenditures to maintain our cash balances and be sure that our revenues equal expenditures. As soon as funds become available, the City will move forward with the project. The basketball courts have already been engineered, designed and are ready to go out to bid as soon as matching funds become available.
· Commented that the Campbell Blvd.frontage road sidewalk at East Avenue has tall weeds growing on the sidewalk. People can hardly walk on it. He said that a person was killed close by that area last year. The City needs to clean-up the sidewalks so they are not a hazard. He sees people walking there every morning and people can barely walk on the sidewalk.
City Manager Warne stated that this particular problem had already been turned over to the Public Works Department.
· Stated that he brought up the issue about a dead tree at the corner of C Street and Sixth Street and he asked the City Manager if it was a City tree or did it belong to the property owner. He recently noticed that the tree was cut down by Public Works so he assumes it belongs to the City. The reason he is bringing this up is because he does not want to be accused of benefitting somebody since he has been accused of this in the past when in reality they are citizens’ concerns.
Council Member Martha Nateras
· Reported that eleven City people attended the City-County dinner meeting in Atwater. She also attended the City’s July 4 festivities and the Portuguese Festas. She thanked the Public Works Department for their work at both events. She said it was very nice to see so many members of the community at these two large events. She also attended a Relay for Life wrap-up meeting at the high school on April 10. She noted they are currently looking for committee members for next year. If anyone is interested in serving on the committee, they should contact her. She said they were short staffed for the last Relay-for-Life event.
· Commented that the City has received only four applications to fill eleven vacancies on the Citizens’ Advisory Committee. She talked to the City Manager about working on a mission statement and maybe calling the committee by another name. She would like to see the committee have a different mission and have more involvement in the community. She would like to see the committee working in a positive way such as working on the July 4 festivities, helping with the October Street Fair, Sweet Potato Festival, and finding ways to beautify the downtown. She would also like to solicit committee members from such organizations as the Lions Club, Rotary Club, and the Knights of Columbus.
· Stated that Council Member Espinoza’s comments had reminded her regarding the stop sign at Robin Avenue and B Street. She said there is a tree that blocks the stop sign and the intersection, causing a blind spot. She asked if the tree could be cut down. Public Works Supervisor Jim Rightsell said the stop signs have been relocated on the City side of the street. The other side of the street is unincorporated Merced County and the property is owned by Mr. Mike Gallo. Mr. Gallo has been asked to trim the trees. Mr. Frank Borges was in the audience and was asked by the City Council to address the problem. Mr. Borges said he had a meeting with Mr. Gallo the next morning and would relay the City Council’s concerns to him.
Mayor Pro Tem Frank Vierra.
· Thanked Public Works for all they did in Memorial Park at the July 4 event. He said it was the cleanest park that he has seen in a long time during an event.
· Reported that a group of Livingston High School students picked up 16 bags of garbage, a tree and a tire on B Street. He said it is nice to hear people in the community say that they saw students out there cleaning and they plan to do it again.
Mayor’s Announcements and Reports.
Mayor Daniel Varela, Sr.
· Reported that he participated in a “ride along” with Police Office Dhaine Villarreal. He said he has been communicating with the Police Department and at every opportunity he commends them on their activities. He commented that the Police Department and the Fire Department do an incredible job in the community. On the ride along he observed Officer Villarreal pull over a car driven by a Hispanic male who did not have his license tags on his car. Officer Villarreal was very professional and informed him that he needed to place the tags on the license plates. The Police Department has been very busy. We have a few residents that have been using their homes to sell illegal drugs.
· Last Thursday he met with Congressman Cardoza. He also attended a Neighborhood Visit. It was a very positive event. The Fire Department did a tremendous job getting the kids wet. There must have been 500 people at the Neighborhood Visit. The Police Department was cooking great hot dogs. Riggs Ambulance Service was present. There was lots of comrade. The Mayor is looking into implementing a program entitled, “Citizens in Action (CIA)” to get people involved in our community.
· Commented on the July 4 festivities. He said there were business leaders out there as well as Riggs Ambulance Service. We had a grandmother win the bike on July 4 and that was incredible. By 8:00-9:00 p.m. the park was packed. The fireworks finale was great and everyone had positive comments about the whole July 4 event. Mayor Varela thanked the Public Works Department for their great work. He said that the guys in orange do a great job. He expressed his appreciation to all the vendors and for the carnival which was attended by many. Mayor Varela thanked everyone for doing a great job, and thank you folks for being a part of this community.
Council Member Margarita Aguilar
· Thanked the skateboarders and their parents for being here.
Mike Torres, 1616 Eighth Street, thanked the Mayor and City Council for opening the Council Chambers before meetings for everyone to sit down. Mr. Torres asked for clarification on how the City got the new attorney. Mayor Varela said he requested that this matter be placed on the agenda.
City Attorney Hobbs commented that the City Council met in closed session at the last meeting and retained a new City Attorney. An announcement was made in the open meeting after closed session.
Mr. Torres asked why two members of the City Council were surprised. He asked if the new attorney was going to cost more money or less money. He asked if the attorney had worked previously with any staff member.
Council Member Nateras said Mr. Hobbs was already an attorney working for the City when he was appointed City Attorney. The current City Council did not hire him. She requested that this item be on the agenda because she had certain concerns about the previous City Attorney.
Angelina Torres, 1620 Jantz Court, asked City Attorney Hobbs if there was a conflict of interest regarding Mayor Varela and Foster Farms. She said that the Mayor is an employee of Foster Farms and Foster Farms uses quite a bit of water. She asked the City Attorney to clarify this.
City Attorney Hobbs said he assumed Ms. Torres was talking about the Mayor’s participation in the water rate adjustments. He said that Mayor Varela does not have a conflict under the Political Reform Act because this increase affects the entire City and the general public. He said that there is an exception under the Political Reform Act that allows the Mayor to vote on the water rate increase because the water rate impact is Citywide.
Ms. Torres asked if this is written into law or something. City Attorney Hobbs said the State Fair Political Practices Commission (FPPC) administers the Political Reform Act and this is contained in their regulations.
Ms. Torres said she was very disappointed that the Council voted against hiring a facilitator. She thought it was a good idea from the beginning. She noted that, whether the City Council wanted to admit it or not, there are conflicts. This was proven when the City Attorney said that the water rates could be raised with three votes rather than four votes. She thought that the water rates would be raised on a 3-2 vote. She hoped that she will not see split votes happen all the time.
Maria Cortez, 714 Cardella Court, asked City Attorney Hobbs what was the difference between an ordinance and a resolution, and which supersedes which. City Attorney Hobbs explained that an ordinance is a legislative act that becomes law and a general obligation of the City. An ordinance takes two readings at two City Council meetings and goes into effect 30 days after it is adopted. A resolution takes effect immediately. City Council actions can be either ordinances or resolutions depending on the type of action taken. Neither supersedes the other. It all depends on the type of action being taken. They are both basically laws of the City.
Pedro Valencia, Pastor of the Neighborhood Church at the corner of F Streetand Main Street, stated that for the past four or five years they have put up a tarp on their property for church events. He said the building they have is very small. He said that they do this in order to assist people in the community with baskets of food. Last year the church wanted to put up a big tarp on their property. He went to the City and was told they needed a permit. The church puts up the tarp to protect the cars and people from the sun. He further asked if there was anyway that they can leave the tarp up because it is for the community. Mayor Varela said he and staff will meet and discuss this. He told Pastor Valencia that he appreciates everything that he and his congregation do for the community.
Pastor Valencia said that he owns three pieces of property in the City. He knows the City needs the money, but the water rate increase is too high. He said that this is a big rate increase. He stated that the citizens will be foreclosed on by the City because they do not pay their bill. He said the City should see how the money can be raised by some other means.
City Attorney Hobbs commented that this portion of the agenda is for items not listed on the agenda. He said it sounded like Pastor Valencia was talking about the water rate increase. The water rate increase will be taken up in a few minutes.
Fernando Cortez, 2114 Cardella Court, said that he had a couple of questions regarding the domestic wastewater rates. He thought that this document does not match the original document submitted by the City’s consultant. He said that it is not the same and he thought that someone had made changes. He hopes the Council has seen this. Mr. Cortez said that Council Member Martha Nateras and Mayor Pro Tem Frank Vierra feel that option #3 is the best choice for increasing the domestic wastewater rates. Mr. Cortez feels that option #1 is the best because people would be paying more at the beginning, but in three years the people will be paying less.
Mike Torres began speaking from the audience. He Mr. Cortez was talking out of order.
City Attorney Hobbs said that the City Council was taking general public comments. Only items not on the agenda can be brought up at this time by the public. If someone wants to speak on an item on the agenda, he politely asked that they hold their comments until the agenda item is discussed.
Mark Mendoza, no address given, stated that it is embarrassing the way the City Manager and some City Council Members are abusing their power. He said there is only so much that the community can take. We have people who are able to impeach the president, and so what makes you think that you cannot be impeached . You are doing to the community only what benefits you. Mr. Mendoza wanted to know how Mr. Reyes (Gilbert) was able to obtain confidential information at the last meeting regarding Council Members’ problems. He asked if this was due to the fact that his wife works for the City. Mayor Varela said Mr. Mendoza was making an accusation. Mr. Mendoza said he was present at the last meeting. Mayor Varela suggested that Mr. Mendoza talk to Mr. Reyes and ask him that question directly instead of approaching the City Council.
Mayor Varela asked the audience to refrain from making negative or derogatory comments and that everyone maintain a professional attitude. He said this is embarrassing.
Anna Alberto, no address given, said she noticed that the garbage rates went up. She asked if there is anyway that the citizens could be informed when the City was considering rate increases. She asked if the rates were going to be lowered in the near future.
City Manager Warne explained that the City Council, by resolution, raised the garbage rates on April 21, 2009. He said that prior to City Council action a public meeting was held on March 26 and a public hearing on April 21. The April 21 public hearing notice went out to all residents in two ways. One notice was mailed to each household, using address labels generated by the computer from the utility customer list. A second notice was sent out to each property owner in the City from the property owner records maintained by Merced County. Most people would have received two notifications of the garbage rate increase public hearing. He said the rates have not been adjusted in many years. It just came to a point where revenues were no longer exceeding expenditures. He informed Ms. Alberto that if she would like to come to his office at City Hall he would direct the appropriate office staff to go over her bill.
Ms. Alberto asked if the Council plans to seek a cheaper garbage collection contractor after the contract ends with the current contractor. City Manager Warne said unfortunately the City is stuck with the current contract until 2012 after which time bids could be solicited.
Luis Flores 707Almondwood Drive, said he appreciated that Council Member Nateras brought up the Citizens’ Advisory Committee.
Mr. Flores commented that according to Blacks Law Dictionary, a resolution does not have the force of the law and does not have the distinction between a resolution and an ordinance. An ordinance is a law, whereas a resolution does not have the force of the law. A resolution is more like a set of grievances whereas an ordinance is a law. He asked City Attorney Hobbs to correct him if he is wrong. He said that he was quoting from Blacks Law Dictionary’s eighth edition, page number 1132.
City Attorney Hobbs said the Blacks Law Dictionary has general definitions and he is sure that the definition that Mr. Flores just read is accurate. However, California law provides for different types of legislative actions to be done by an ordinance or resolution, and depending on the type of action. Some things can only be done by an ordinance, but many things can be done by an ordinance or resolution. So you can look at the general definitions in the Blacks Law Dictionary with general applications used throughout the country, but these definitions do not necessarily apply to California.
Mr. Flores told City Attorney Hobbs he went to the county law library and could not find a copy of the City’s ordinances. He asked why these records are not available.
Council Member Nateras said a copy of the Municipal Code is available at City Hall. She knows this to be true because she looked things up when she was City Clerk.
Mr. Flores stated that Livingston is the only city that doesn’t have a copy of its Code available at the County level. Council Member Nateras said the code is available at the City.
Gurpal Samra, 1034 J Street, asked if the change from an ordinance to a resolution affects the Proposition 218 process. City Attorney Hobbs responded, “No.”
Merced County Fire Division Chief, Scott Newman, said he is responsible for the overall operations of Merced County with the exception of the City of Merced and the City of Los Banos. He said Livingston is the busiest station in their system. Chief Newman commented there is outstanding cooperation between the volunteers and staff, and they would like to do anything they can to make it better. He said he is aware that economics are tough.
Council Member Aguilar asked how much Merced County and CalFire, paid out in 2008 for the volunteers and paid staff.
Chief Newman explained that Livingston’s payroll for the volunteers the last fiscal year ran in the neighborhood of about $25,000. The total Countywide budget is approximately $13.5 million for 20 fire stations or roughly $600,000 plus for each station. He said they are in the process of buying new fire engines every year. This current fiscal year will be a struggle. Right now there are no planned layoffs.
Council Member Aguilar commented that Chief Newman was more or less saying that if you combine both Merced County and CalFire it would be something like $625,000 the City is allotted to service our area.
Chief Newman commented that the County does not put money into the City of Livingston fire station. He said the County has a contract with CalFire that provides career trained firefighters. The City of Livingston has an agreement with the County, but he does not know the details of that agreement. He explained that Livingston’s agreement with the County provides a 24-hour per day, 7-day week, 365-day per year career person in the fire station. He said it takes 2 ½ people to achieve that. There is also a Merced County fire engine in the fire station which responds to both City and Merced County calls. The $625,000 comes out of the Countywide fire budget and includes the salary for that person to be at the Livingston fire station 24 hours per day, seven days per week. It also includes a portion of his salary and the whole operation of the CalFire Department. Chief Newman said he did not know how those monies are exchanged. If you are looking to see if the County is putting cash money into the City of Livingston, the answer is no. The agreement is that CalFire provides staffing and training.
Ms. Lewis commented that Merced County has an agreement with the City of Livingston. In exchange for housing their equipment and periodically updating their fire equipment, the County provides the full-time person that Chief Newman spoke about.
Brian DeSilva, no address given, spoke on behalf of himself and the others who own skateboards in Livingston. He said he appreciated the City Council, but they have been trying to get a skateboard park in Livingston for a long time. He requested an update on this issue.
City Manager Warne commented that the City has just negotiated an amendment to the development agreement for one of our developments. One of the things the developer agreed to do (in return for some things that the developer wanted) was to contribute $100,000 towards a skateboard park. This money has to be contributed within 30 days of the second reading of the ordinance approving the development agreement. So what he is saying is that the City Council has heard the concerns of the citizens, and the City Council is working with staff to start down the road to get a skateboard park. He said $100,000 will not cover all of the costs to construct the skateboard park, but will start the design.
Mr. DeSilva thanked the City Council.
Mayor Varela said staff is setting up a meeting with the City of Patterson. They have just approved their skateboard park and it is similar to what we want. He said that he appreciated City Manager Warne for negotiating this concession from the developer. This is really exciting and we need to move forward on this. The $100,000 is enough to get the design work done.
2. Introduce and Waive the First Reading of an Ordinance of the City Council of the City of Livingston Adopting an Amendment to the Kishi (Country Lane) Subdivision Development Agreement.
Mayor Varela introduced the agenda item and Community Development Director Donna Kenney presented the agenda item. She stated that in December 2003, the City Council approved a vested tentative map for this project. The developer moved forward and built several houses before the downturn in the economy. The property is in foreclosure and the developer is declaring bankruptcy.
City Manager Warne explained that a new developer buying the remaining vacant lots approached the City and wanted an extension of time to the development agreement. He said that staff might be able to persuade the City Council to do that, but they would need some concessions from him. City Manager Warne outlined what the developer has agreed to do for an extension of time on the development agreement. The developer has waived all rights to reimbursements for Well #16 and the oversizing of water lines, storm drain lines and sewer lines.
In addition to waiving reimbursements for the oversizing of infrastructure, the developer has agreed to pay the 1% development amenities fee for each house built in the subdivision. On May 3, 2005, the City Council took action that required a 1% amenities fee for parks and recreation and the Court Theater. This particular development agreement was approved prior to that, so all the houses that were going to be built in that development were not going to be required to pay the 1% development amenities fees. The developer has agreed that he will pay the 1% amenities fee on the homes that will be built on the 174 lots.
City Manager Warne stated that the developer has also agreed to pay, within 30 days of the second reading of the ordinance approving the amendment to the development agreement, a cash contribution of $100,000 for a skateboard park. There are also six subdivision lots adjacent to the park. The developer has agreed to give the City the first right to purchase those lots. This was a condition that Mayor Pro Tem Vierra and Planning Commissioner Soria wanted. The development agreement will need to be amended to reflect this provision.
City Manager Warne stated that the total financial benefit to the City of Livingston in cash and in future payments is approximately $1.5 million dollars according to the City Engineer. In return for this financial contribution, the developer will get an extension of time of seven years on his development agreement.
Council Member Aguilar asked for clarification of the development agreement amendment where it stated that the $100,000 would go to the skateboard park or other park use. She wanted to be sure that the money went to the skateboard park.
City Manager Warne stated that this language was a recommendation by the attorneys that helped draft the development agreement amendment. They wanted to be sure that the City still received the $100,000 in the event the City did not move forward on the skateboard park. They wanted to have language included in the development agreement amendment that the money could be put towards another park.
Mayor Varela stated that the City is going to build the skateboard park. Council Member Nateras stated that our number one goal is the skateboard park.
Mayor Varela opened the Public Hearing at 8:26 p.m.
Pastor Valencia from the Neighborhood Church at the corner of F Streetand Main Streetasked if the property can be cleaned and maintained by the developer. City Manager Warne explained the developer has the responsibility to maintain the lots. Council Member Espinoza said that a citizen on Olds Avenuehad been complaining about the condition of the lots, but they look better now.
Mike Torres asked if the Kishi Development is now complete. City Manager Warne stated that the developer is purchasing all of the vacant lots from the bank. Mr. Torres asked when the infrastructure would be complete. Mayor Varela said the infrastructure is all complete in the Kishi Subdivision.
Mayor Varela said he appreciated the hard work the Planning Commission did on this venture. He closed the Public Hearing at 8:29 p.m. as there were no further public comments.
Mayor Pro Tem Vierra thanked the developer for considering allowing the City to have the first right of purchase on the six lots in front of the park.
Motion: M/S Vierra/Nateras to Introduce and Waive the First Reading of Ordinance No. 582, an Ordinance of the City Council of the City of Livingston Adopting an Amendment to the Kishi (Country Lane) Subdivision Development Agreement including the City’s first right of purchase of the six lots in front of the park. The motion carried
5-0 by the following roll call vote:
AYES: Council Members: Aguilar, Espinoza, Nateras, Varela, Vierra
NOES: Council Members: None
ABSENT: Council Members: None
- Conduct Public Hearing Pursuant to Revenue Bond Law of 1941 and Adoption of Resolution to Adopt Water Service Rates.
Subitem A–Resolution of the City Council of the City of Livingston Establishing Rates for Water Service Fees–Scenario 1.
Subitem B–Resolution of the City Council of the City of Livingston Establishing Rates for Water Service Fees–Scenario 2.
Subitem C–Resolution of the City Council of the City of Livingston Establishing Rates for Water Service Fees–Scenario 3.
Mayor Varela had Sudhir Pardiwala, the City’s water rate consultant from Raftelis Financial Consultants, Inc., come forward to make a brief power-point presentation on water rate increases. (See attached power point presentation.) Mayor Pro Tem Vierra wanted the three water rate increase scenarios presented because Mr. Cortez, who spoke earlier, stated that scenario #1 is cheaper. He agrees with Mr. Cortez that scenario #1 is cheaper, but that is not the wishes of several people that have spoken. He would like the consultant to cover all three water rate increase scenarios.
Mr. Pardiwala stated that the he has made this presentation on the water rate study several times and he would present a condensed version this evening. The objective of the water rate study was to develop a multi-year financial plan to be sure that the City has adequate revenues to provide water service to its customers, to provide financial stability and to ensure that the rates generated were proportional to the cost of providing service to all customer classes.
Council Member Espinoza said that he was sorry to interrupt the presentation, but the City Council has heard the presentation on the water rate study before several times. He felt that the City should do the Proposition 218 process again, notify the citizens again and allow them to protest again. He does not think the City is following the right path. He said that an ordinance requires two readings at two separate City Council meetings while a resolution becomes effective immediately and only takes a majority of three out of the five City Council members to approve it. He feels that by changing from an ordinance to the resolution, the City Council needs to do the Proposition 218 process again. He said that just because the City has new attorneys, it does not mean that they have the perfect opinion. All attorneys’ opinions can be overturned by a court or argued against.
City Attorney Hobbs said we have asked the consultant from Raftelis Financial Consultants Inc. to do a brief presentation and just do a reminder of the water rate study. With respect to Proposition 218 compliance, City Attorney Hobbs said that the City has already complied with the Proposition 218 process. During that process, the citizens had the opportunity to protest. The number of protests was not a majority of the property owners, and was not insufficient to prevent the City Council from adopting new rates. The City Council has closed the Proposition 218 public hearing. Now we are looking at adopting the rates themselves.
City Attorney Hobbs stated that, as was explained at the last City Council meeting, the water rate amendment process on the agenda for tonight is to consider approving new rates by resolution under the Revenue Bond Act of 1941, the City’s police powers, and the City’s ordinances. He said that it does not require re-noticing under Proposition 218. City Attorney Hobbs said that the City gave public notice for a public hearing this evening and all will have an opportunity to speak on this tonight. The public hearing this evening is to take public comment on whether or not the rates are excessive or discriminatory. This is the topic for the City Council to consider. City Attorney Hobbs said that following the public hearing, the City Council will have the opportunity to approve or not approve new water rates by resolution. He noted that the water rate increase by ordinance is also on the agenda later in the meeting to provide the opportunity for the City Council to adopt the water rate increases by ordinance if it so desires. The resolution to increase water rates is also on the agenda and it will take a majority vote if the Council wishes to approve it.
Council Member Espinoza said changing the rate approval from an ordinance to a resolution changes the voting structure. He said you are not giving them another chance to protest.
City Attorney Hobbs stated that if the City Council wants to provide additional notice beyond what it has already done and required by law, it is free to do so.
Council Member Espinoza said it seems like the citizens are being cheated. He knows that the resolution is a law. The Bond Act of 1941 is an old law. He said that an ordinance is stronger than a resolution.
Sudhir Pardiwala continued his presentation. (See attached power-point presentation.)
Council Member Espinoza noted that the increase is 175% for scenario #1. He said that 175% is for 6,000 gallons, and not 35,000 gallons. For every 1,000 gallons used the rate goes up. He just wants everyone to know that. Mr. Pardiwala said that Council Member Espinoza is not correct. The 175 percent refers to the total revenues that the City will receive under scenario #1.
Vickie Lewis commented that a customer using 35,000 gallons of water under scenario #1 would pay an increase of $70.12. Mr. Pardiwala said that a person using 6,000 gallons would not see a 175 percent increase. Council Member Espinoza said that a person using 35,000 gallons under the current rate structure is paying $10. This is a 700 percent increase.
Council Member Espinoza asked what the average amount of water is used per month within the City by a residential customer. Mr. Pardiwala responded that it was 20,000 gallons a month. He asked why the first tier of the rate structure was 6,000. Mr. Pardiwala said that 6,000 provides for basic domestic residential inside water usage. This is the essential usage. Vickie Lewis said she ran some numbers on average consumption during the winter time. She said that during this period, the average consumption was 13,000 and 15, 000 gallons.
Council Member Espinoza noted that even in the winter people are still using 30,000 or 40,000 gallons without even watering their lawns. Ms. Lewis commented that a person using 35,000 gallons is abusing the water. The basic needs can be met during the winter months of 13,000-15,000 gallons.
Council Member Nateras asked about the percentages used in the rate study. Mr. Pardiwala gave an explanation of the percent of increases. He said that the City is trying to encourage water conservation through the tiered rates.
Mr. Pardiwala continued with the power-point presentation.
Council Member Espinoza asked if City Attorney Hobbs was able to look at the letters from Fosters Farms. City Attorney Hobbs responded that he had read them.
Council Member Espinoza quoted from the June 15 letter from Foster Farms. He read the following:
“On March 25, 2009, in the case of City of Los Angeles v. All Persons interested in the Matter of Validity of the Transfer of $29,931,300 from the Water Revenue Fund to the Reserve Fund (2006-2007), L.A.S.C. Case No. BC369238, Judge Kenneth Freeman invalidated the City of Los Angeles’ illegal transfer of revenues generated from its water rates from the Los Angeles Department of Water and Power and Power Water Reserve Fund to the City’s General Fund. The Court found that the amount Los Angeles charged for water rate service exceeded the costs required to provide said service, the exceedence created a surplus, and to the extent this surplus was then transferred to the General Fund, the transfer is prohibited by and violates Proposition 218. The court invalidated the transfer, prohibited Los Angeles from transferring surplus revenue derived from water services to the City Reserve Fund.”
Council Member Espinoza commented that Livingston’s General Fund has already paid the Water Enterprise Fund deficit of $1.3 to $1.5 million. Therefore, the Water Enterprise Fund does not have a deficit. He thought that it was illegal for the Water Enterprise Fund to pay back the General Fund. He asked City Attorney Hobbs for his opinion on this issue.
City Attorney Hobbs commented that the City of Los Angeles’ case is a trial court decision and it is not published. This means that it cannot be used as a legal precedent and has no value in Livingston’s situation. He said that it cannot be cited by any court. Since it is not a published case, it does not control our situation at all. Livingston’s situation is a lot different than what was happening in the City of Los Angeles. The City of Los Angeles was using water funds for non-water purposes as opposed to simply paying back the General Fund. There is a case out of Roseville that says this sort of thing is not allowed.
City Attorney Hobbs said what is happening here in Livingston is that the City’s Water Enterprise Fund is paying back loans that were made by the General Fund. This is permissible and consistent with Proposition 218 and state law. So the case is different with different circumstances. Even if the case was on point (which it is not), it has no precedential effect because it is a trial court case. Trail court cases are issued all day long.
Mayor Pro Tem Vierra did not think we are going to have to be worried about paying back the General Fund. The City received a letter from the state regarding high levels of manganese in one of its wells. We need a million dollars right now to install a filtering system to fix the problem. He does not see anything getting paid back to the General Fund in the near future. Mayor Pro Tem Vierra said that the City is going to have to fix the problem or pay fines levied by the State.
Mayor Varela asked if there were any more comments.
Council Member Aguilar wanted the residents to know that they will have a different water bill each month because it will be based on water usage. She told the audience that they need to conserve their water and keep their bill on tier one. She said this is an issue that each and every one of the residents will have to consider and those of us making the choice for you also have to consider that it is impossible to try and monitor your water. You can try. She personally has cut back on front yard watering and for some reason the consumption keeps bumping up to 18,000-20,000 gallons per month. Ms. Aguilar said every month you will have something different on the water bill depending on your water usage. This is going to depend on you and how you manage your water usage.
Mr. Pardiwala said Livingston has a higher average monthly water consumption than the state-wide average. The state average is about 13,000 gallons per month.
Mayor Pro Tem Vierra commented that we have a lot of seniors paying the $9.90 per month. They pay the same amount as a house with three or four families living there. So this means that the seniors are subsidizing those that are using a lot of water. He said that if the City Council chose scenario #3, a single-person household is going to be paying less than $9.90 per month.
Council Member Nateras asked City Attorney Hobbs that, if the City Council chose scenario #3, does the City Council have to automatically go to the next step. She asked can we lower the next step. She hates to increase water rates, but it is needed. City Attorney Hobbs said you can do less, but the City Council cannot go higher.
Council Member Aguilar asked if we can do those adjustments, why can’t we consider a whole lot of other things. City Attorney Hobbs reiterated that you can go less on any of the scenarios, you just cannot go higher.
Council Member Espinoza asked if the City could change the 6,000 gallons to 20,000 gallons. City Attorney Hobbs said no. He said that the City Council can change the numbers around and make the numbers lower if they want.
Mayor Pro Tem Vierra said we could redo everything again. He said we have gone over this twice and it has cost us thousands of dollars.
Mayor Varela opened the Public Hearing at 9:06 p.m.
Bill Ingram, 656 F Street, said he waters his lawn two times a day, three days a weeks for 7 minutes. He said that there are two people living in the house. He said that his usage went up to 46,000 gallons. He would like someone to come to recalibrate his meter. There is no way that two people are using this much water.
Fernando Cortez stated that the base rate for all three scenarios is lower than what we pay right now, but with the cap on the usage for the 6,000 gallons, that is what is going to kill everyone. He feels that scenario #1 is better than scenario #2 and scenario #3. He has done his calculations and in the end scenario #1 is better because the rate increase is lower in the long-run. Mr. Cortez said if you do not watch what you are using you will be paying a lot of money. He said that he read in the newspaper that people who do not pay the utility bill will have a lien attached to their property. He said that he does not know how this will work.
Pedro Valencia said he understood the charges, and according to these figures, he will be charged 1,100 percent more. He said he is pumping over 2,300,000 gallons per month with his agriculture well outside the City for $800 a month. Mr. Valencia said the water rate increase is not fair. He asked what the City Council was going to do when the houses are foreclosed on. He asked, “Who is going to come and bail us out?” He cannot pay the water bill right now. A lot of people cannot pay the bill right now. Mr. Valencia said he agrees with turning off your faucet and not watering your lawn, but this is a fire hazard. He said that he owns three properties in Livingston. We cannot drink the water. When he takes a bath, the water stinks. He thinks the rate increase is too high. He said that the City can pump water cheaper. We have a high water table.
Mr. David Loeser, 1343 Eighth Street, stated that he has not watered his front yard in about eight months and his average water bill shows that he uses 13,000 gallons. He said that it is impossible to use only 6,000 gallons per month. Unless a person is a senior citizen, he is going to use more than 6,000 gallons. Whoever did this should have figured an average usage of 8,000 gallons, 9,000 gallons or 10,000 gallons per month. The City should have a water rate so people can afford it. Mr. Loeser said he is retired and his wife will soon retire. They cannot afford these bills that keep getting higher and higher. He said he is one of the lucky ones. There are a lot of people here who cannot afford this. They are living paycheck to paycheck right now. He would like to take a poll of who can afford it. He knows that he cannot. He said, show him and he will go along with you. Do not give him a guide that he cannot understand. There is no way that someone can get down to 6,000 gallons per month. He said show him how a normal family of three can survive. We will have to move because we cannot pay this. He asked the City Council to look at people who are on a small income. Mr. Loeser asked the City Council to consider those of us who are on a small income check. Decide on what you honestly need to raise. He said if you want to go 1%-2%, he will go along with it, as long as we are not talking 200% in the beginning.
Angelina Torres said if she understood the City Attorney correctly, you can lower the water rate, but you cannot raise it. City Attorney Hobbs said that this is correct.
Ms. Torres said that this is what we need to do. We cannot stick to 6,000 gallons. When you add the other two services to the water cost, it is a high bill. Some people do not realize that. She said when you have all three services together you are going to be paying at least $100. You are going to have two or three families living together because they cannot afford the rent or whatever. You guys are going to be killing families and the children and that is child abuse.
Mayor Varela asked Ms. Torres to please refrain from using such language because that is “very careless.”
Anna Alberto stated that most of the people that work here are field workers and only get $200-$300 dollars a week. She called earlier to see what her bill was going to be. She said that her family uses 9,000 to 10,000 gallons per month. It is going to cost her about $80 per month. She asked where people are going to get the money. They are not going to be able to afford the water bill. Foster Farms only pays minimum wage. Are we only going to take a shower twice a week? That is what is going to happen. Ms. Alberto said she understands the City is trying to raise money, but thought that the City should allow 15,000-20,000 gallons at the current rate. She said she will not be able to pay for her water. She will not be able to wash her dishes or take a shower because the bill is too expensive.
City Manager Warne said he thinks there is a misunderstanding on the water rate tiers. He said that there is a lower rate for usage for the first 6,000 gallons. A higher rate goes into affect for usage between 6,000 gallons and 20,000 gallons. A higher rate is calculated for usage above 20,000 gallons. Everyone, regardless of usage, gets the benefit of the lower rate for the first 6,000 gallons. If a person uses 9,000 gallons, they will be charged the lower rate for their first 6,000 gallons and the middle rate for 3,000 gallons. Everyone gets the benefit of each water rate tier, regardless of how much water is used.
Ms. Alberto said that water, wastewater and solid waste charges together would cost her about $80 per month.
Mike Torres asked why the water rate increase was being considered now, and then it was on the agenda again later in the meeting. City Attorney Hobbs stated that the City Council is considering adopting new water rates by resolution pursuant to the Revenue Bond Law of 1941, the City’s police powers and City ordinances. The other water rate item on the agenda at the end of the meeting is carried over from the last meeting.
Mr. Torres asked if the City Council will listen to the people or base their decision on the City’s needs. He asked if the City Council is just trying to make money on this.
Mayor Varela stated that the City Council is taking the necessary steps forward to make sure that the water being served to our community is good water. He noted that we have old water lines that need to be replaced and wells that need to be treated. This is for the safety of our community. This is why the City Council is considering this decision tonight.
Mr. Torres said he understands this, but why have three different scenarios if the City knows what it needs. He asked if it would be cheaper to drill a brand new one. Why spend the money on the three scenarios and all the surveys.
City Manager Warne explained why the City developed three water rate scenarios. He stated that any one of the three scenarios will work. They cover current operating costs, the operating deficit that has accumulated over the years and capital costs. City Manager Warne showed a jar with discolored water taken from the water system and said that he thought it was a travesty that the people in the community have to drink this water. He said that they will continue to drink this discolored water unless something is done and the water rates are increased. Once again City Manager Warne said that any one of the scenarios will work. Each scenario has its own advantages and disadvantages.
City Manager Warne said we cannot be like the state legislature and divorce ourselves from fiscal reality. It takes a certain amount of money to operate the system and to take care of the needs of the community. He said one thing that will be discussed later on the agenda that has not even been considered in the water capital improvements plan in the rate study is the manganese problem in Well #15. The City is going to have to deal with this problem. City Manager Warne said the City is facing large capital costs, as well as costs to continue to operate the water system. The objective, as the Mayor has said, is clean, safe water from a reliable source for the City of Livingston.
City Manager Warne stated that a water rate of $9.90 for 35,000 gallons is unheard of in the State of California. He showed an article about the City of Hughson that he gave to each City Council member. Hughson’s current water rate is $38 per month. They are going to raise it $47 per month now, and by 2012 the water rate is going to $90 per month. This does not include what the residents of Hughson are going to pay for sewer and garbage service. City Manager Warne stated that the regulatory environment we are living in and the cost structure that is being forced upon us just to take care of these kinds of problems is forcing the City to take action, regardless of how painful it is. Action must be taken now because we simply cannot do what the State Legislature is doing– which is spending more money than what we are taking in. The City of Livingston has done this for a long time and simply cannot do it any longer.
Mr. Torres said he was just saying that we cannot do it in one day. He felt scenario #3 was the easiest for the community and recommended the City Council select scenario #3.
Mark Mendoza asked how can the City base the water rate increase on the 6,000 gallons per month. He said if there are 3,000 homes in Livingston and only 169 homes use less than 6,000 gallons per month. Most of these people reside in the mobile home park.
City Manager Warne responded that everyone gets the first 6,000 gallons at the lower rate regardless of how much water the customer uses.
Mr. Mendoza repeated himself and stated that the City is starting off the rates at 6,000 gallons per month. Most of the citizens’ use more than 6,000 gallons per month. There are only 169 homes that use 6,000 gallons. He said he met with Vickie Lewis and felt the Council should go with 20,000 gallons per month, which is what everyone uses. Mr. Mendoza noted that at previous meetings Mr. Pardiwala had suggested that there might be assistance from the County. He said he talked to the County and they told him that people could only get help with the utility bills once every 18 months. Mr. Mendoza stated that the Council should start thinking about those people who live from paycheck to paycheck.
Gilbert Reyes, 1325 Emerald Drive, felt the Council should go with scenario #3. This would be an increase of $12.20 per month for water. He commented that there are people that are complaining that they are going to pay an additional rate for water, but they have not mentioned that the City Council voted to raise the garbage, so do we care more about our garbage than our water. We have to pay this, he said. Mr. Reyes stated that there is a problem with Well #15. It will cost the City more to drill a new well. It is like managing your money, and this is why we have meters. If you use the water, you are going to have to pay for it.
Mr. Reyes said he has lived here for six years and started coming to Council meetings six years ago. He commented that the politicians did not want to raise our rates because they didn’t want to be labeled. He said we should blame ourselves because we did not ask the question of why this issue has not passed. The City is not making a profit. No one is going to get a raise. The rate increase is just going to cover our costs. Well #15 is going to cost over a million dollars to fix. If we shut that well off, Foster Farms is not going to be very happy. If we shut that well off, God help us if there are two fires. He reiterated that the City Council should go with scenario #3. Let’s get it done. He said when the gas prices went up, people still bought the good gas. This is not about anybody getting a raise or just anyone sticking it to us. This is about something we have to do.
Sabin Escobedo, Escobedo Income Tax Services, said he was concerned about the water rate increases. He said he pays $469 a month for water, sewer and garbage and with any type of increase, nobody is going to be able to do business in Livingston. He noted that $469 a month in Livingston is a heck of a lot of money. We are paying more for services in Livingston than other cities. He recalled that back in the 1980’s we had the same problem. The City sued and received $6 million. He asked what happened to the money. We had the money to fix the problem. He said he is also a farmer and has dug agriculture wells to deliver millions of gallons of water. It does not cost a million dollars to fix a well or dig a well. He knows the City wells are a little bigger. He asked what kind of a well are they are going to charge you for. Maybe we need to get better bids. Mr. Escobedo said he had to purchase drinking water. He said consider the people, look at who is doing the work and try to find a solution to fix it.
Warren Urnberg, 1331 Eighth Street, asked if he was correct to say that 13,000 gallons is the average water consumption. Council Member Espinoza said 20,000 gallons. Mr. Urnberg asked then why didn’t we set it there if the average is 20,000 gallons and go from there instead 6,000 gallons.
Sudhir Pardiwala gave an explanation of the tiered water rate structure. He referred to a slide and said that it costs the City $1.01 per 1,000 gallons to cover the cost of the water service. In order to provide an incentive for conservation and provide a better mechanism for recovering the cost of the services provided, the City has a tiered rate structure.
Luis Flores stated that the effective date of the water rate increase was July 1, 2009. City Attorney Hobbs corrected him and said the rate increases would go into effect on August 1, 2009.
He said he knows he has said this before at previous City Council meetings, there are other things the City of Livingston can do in addition to increasing the water rates which he favors. He said the rates are low. He thinks that the City should reinstate the restricted watering days. The City of Fresno eliminated the day time use of watering. He does not know why the City of Livingston does not do something similar. He asked what is going to happen after 2012.
Mayor Varela closed the Public Hearing at 9:45 p.m., as there was no one that wished to speak and there were no further public comments.
Council Member Nateras asked the City Attorney if they could change the water usage to something like 25,000 gallons. City Attorney Hobbs said you cannot change the water rate tiers, but you can change the water rate increase percentages downward. He stated you cannot change the water usage in the water rate tiers. You can change the effective rates downward, but you cannot change the water rate tiers or the water usage in the tiers.
Council Member Espinoza said that he knows that the average usage is 20,000 gallons per month. Most people use over 10,000 gallons per month. He favors increasing the usage to 20,000 gallons per month and then charging $2 to $3 per month on top of the base rate. He said that 35,000 gallons is a lot of water, but he said he knows citizens that use 35,000 gallons. He favors the restricted watering days rather than trying to limit people to 6,000 gallons per month. Council Member Espinoza said that the meters are incorrect.
City Manager Warne said the City can have the meters tested in place. If someone thinks their meter is not registering, they should call the Public Works Department. They will come out and test it. He said most meters run slow over time instead of fast. If they are running slow, they can be adjusted.
Mayor Pro Tem Vierra said Mr. Escobedo mentioned the cost of drilling wells. He said Mr. Escobedo, a business owner, and Foster Farms do not have to pay prevailing wages on their construction project labor costs. A private business can pay minimum wage, but a City by law must pay prevailing wages, which are set by the State and are much higher. City Manager Warne said the public health standards are also much different and much higher for a City well than an agriculture well.
Motion: M/S Espinoza/Aguilar to not take action on the resolution and direct staff to go back and reanalyze the water rate scenarios.
Mayor Varela stated that we have gone through and talked about this since the end of last year, and we are now at July 7, 2009. Information put together by the water rate consultant should have already been implemented. This continues to cost the City and the community money that it should not. We need to move forward.
The motion failed to carry by a vote of 2-3. Mayor Varela, Mayor Pro Tem Vierra and Council Member Nateras voted no.
Council Member Nateras said this issue has been going on too long, and we need to make a decision. She made a proposal that the City go with scenario #3 with a 15 percent reduction in all rates; or come back and revisit the increases in the future when it is time to move to the next rate increase step.
City Manager Warne said he agreed that the water rate increases are high, but the City has waited so long to act, and needs the revenue to operate. He said that a 15 percent reduction in all rates in scenario #3 will not financially work. He suggested that the City Council adopt scenario #3 with a 15% reduction for the first step, but all the other rate increase steps would go into effect as outlined in scenario #3, unless the City Council takes action to stop or reduce the water rate increase.
City Attorney Hobbs summarized and clarified the motion. He said that if he understood the Mayor’s motion, he is proposing that the City Council adopt scenario #3 with an initial 15% reduction in the water rates. The City Council will revisit this issue again prior to February 1, 2010, when the next rate increase would take effect. If the City Council takes no action, the next rate increase automatically goes into affect.
Council Member Martha Nateras said that she is withdrawing her previous motion.
Motion: M/S Varela/Vierra to adopt Resolution No. 2009-32 increasing water service rates with the selection of scenario #3 and reducing the first step of the rate increase by 15% effective August 1, 2009, and revisit the rate increases before February 1, 2010. The motion carried 3-2 by the following roll call vote:
AYES: Council Members: Nateras, Varela, Vierra
NOES: Council Members: Aguilar, Espinoza
ABSENT: Council Members: None
The Council took a short recess at 10:00 p.m. The meeting resumed at 10:12 p.m.
4. Conduct Public Hearing Pursuant to Revenue Bond Law of 1941 and Adoption of Resolution to Adopt Domestic Wastewater Service Rates.
Subitem A–Resolution of the City Council of the City of Livingston Establishing Rates for Domestic Wastewater Service Fees–Scenario 1.
Subitem B–Resolution of the City Council of the City of Livingston Establishing Rates for Domestic Wastewater Service Fees–Scenario 2.
Subitem C–Resolution of the City Council of the City of Livingston Establishing Rates for Domestic Wastewater Service Fees–Scenario 3
Sudhir Pardiwala, the consultant from Raftelis Financial Consultants, Inc., gave a power-point presentation on the domestic wastewater service rate increases. (See attached power-point presentation). He said that the City has an operating deficit of approximately $1 million. He explained in detail each of the three domestic wastewater rate increase scenarios.
Council Member Espinoza asked if the residential domestic wastewater charges were based on water use. Mr. Pardiwala said that the domestic wastewater residential customers are charged a flat rate regardless of water use.
Mayor Varela opened the Public Hearing at 10:19 p.m.
Gerri Martin, 16181 Vinewood, asked what is the $4.3 million in capital improvements?
City Manager Warne said that there is a list of the capital improvements in the domestic wastewater rate study. Mr. Pardiwala reviewed the capital improvements from the domestic wastewater rate study.
Ms. Martin asked how much of the capital improvements plan is part of the domestic wastewater treatment plant expansion. City Manager Warne stated that, as far as he knew, none of it was related to the expansion of the domestic wastewater treatment plant.
Fernando Cortez stated that the residential customers have a flat rate that has to be paid. Mr. Pardiwala said that non-residential customer rates are subject to a minimum flat rate plus a water usage rate.
Pedro Valencia commented he still thinks the City is raising the price of everything too much. He does not understand why there should be a flat rate for all residential customers. He said he has a big yard and 80% of the water will be going into the yard. Mr. Valencia said they are in the church three times a week for only two hours. He thought the charge for churches was too high. He said that the City was giving them no options.
Mr. Pardiwala stated that churches are charged a flat rate. Their charges are not based on water use.
David Loeser stated that he thought that scenario #3 was probably the best of the three scenarios. He suggested that the City Council do the same as they did on the water rate increase and give a reduction in the initial rate increase. He said that any help the City Council can give would be appreciated, even if it is 1%. Mr. Loeser said he is not greedy. He is grateful if the City Council helps with anything on this issue. He said that the City should go with scenario #3 because it is less painful.
Gilbert Reyes said he was in favor of scenario #3. It is $24 and pays for operational costs, equipment costs and for our contracted company that takes care of our domestic wastewater plant. He said it boggles him that no one is here. Everyone was against the water rates, but no cares that they are going to pay more for their sewage.He said he is for the increase as he has to flush his toilet and he wants it to go.
Luis Flores stated that his concern is the figures that were presented tonight are one fiscal year old. The General Plan is predicting something different. He said there needs to be some conversation about the 2020 General Plan and these domestic wastewater rates. The figures are one year old and do not reflect what is happening right now. He asked what is going to happen on February 3, 2012. He asked why the rate increases stopped in 2012. Why not go out 10 years.
City Attorney Hobbs explained that the domestic wastewater rate increase proposal goes until 2013. The reason for this is that state law only allows rates to be set for a five-year period.
Katherine Schell Rodriguez, P.O. Box 163, said she wanted to talk a little bit tonight about Whisky, Water, Faith, and Facilitation. She said Mark Twain once said “Whisky……is for drinking. Water….is for fightin.” How true. Isn’t it ironic? Here we are, once again, our own sad version of the movie “Groundhog Day” fighting over how much to pay for the water (and wastewater rates). The City’s budget is not quite done yet. The State is looking at raiding our General Fund. It’s like 1995 all over again. And we are staring down the barrel of a possible compliance order that could force us to spend a million dollars we just don’t have. Which brings her to that awful “F” word we seem to be struggling with so much tonight. Faith or should she say, a lack of it. Faith that our elected leaders are honestly trying to do what’s best for the community. And not just what best covers their political behinds. As for “facilitation.” Sometimes she wonders what would happen if we locked the Council in a room with a bottle of Jack Daniels and didn’t let them out until they resolved their differences. At any rate by the time this night is over, if anyone asks how it went……we just might be tempted to reply “I stand on the Fifth… but I’d rather drink it!”
Mayor Varela closed the Public Hearing at 10:32 p.m. There were no further comments from the public.
Mayor Pro Tem Vierra said that looking at scenario #1, the rate increase is $14.50 and stays the same all the way through. In scenario #2 there is a $14 rate increase the first time and then $15.50 the second time which is a $29.30 increase. Scenario #3 has a $14 increase the first time then $11, and then $7 the third year for a total of $32. He stated that he thought that scenario #3 is best when the entire rate increase over time was considered. He recommended that the City Council adopt scenario #1 with a 15% decrease like the City Council did on the water rates. Then revisit the rates in six months.
Motion: M/S Vierra/Nateras to adopt Resolution No. 2009-33 increasing the domestic wastewater service rates effective August 1, 2009, with the selection of scenario #1, and reducing the rate by 15% for the first six months, and revisit the rate increases before February 1, 2010. The motion carried 3-2 by the following roll call vote:
AYES: Council Members: Nateras, Varela, Vierra
NOES: Council Members: Aguilar, Espinoza
ABSENT: Council Members: None
City Attorney Hobbs said that Items #16 and #17 are now moot due to actions the City Council has already taken during the meeting. These items can now be dropped from the City Council agenda.
5. Resolution Conditionally Approving Site Plan / Design Review 2009-02 for the Verizon Wireless Antenna Project.
The agenda item was presented by Community Development Director Donna Kenney. She explained the project proposal to the City Council. She stated that the project would improve service for Verizon customers in the City. The Planning Commission recommended approval for this project.
Mayor Pro Tem Vierra asked if Verizon can help with the skateboard park? Mayor Varela said the City already unsuccessfully tried to get this concession.
Richard Weimar with Verizon Wireless was available to answer questions. Mayor Varela thanked him for coming.
Mayor Varela opened the Public Hearing at 10:36 p.m. He subsequently closed the Public Hearing at 10:37 p.m., as there were no public comments.
Motion: M/S Vierra/Aguilar to adopt Resolution No. 2009-34, a Resolution Conditionally Approving Site Plan / Design Review 2009-02 for the Verizon Wireless Antenna Project. The motion carried 5-0 by the following roll call vote:
AYES: Council Members: Aguilar, Espinoza, Nateras, Varela, Vierra
NOES: Council Members: None
ABSENT: Council Members: None
6. Discuss the Fiscal Year 2009-10 Community Development Block Grant (CDBG) Program Applications for the General Allocation and Solicit Citizen Input.
City Engineer Nanda Gottiparthy presented the agenda item. He said that the Community Development Block Grant General Allocation program requires public hearings to take public comment and receive input on potential projects. This public hearing is to take public comment on potential projects. He said that the City is proposing to apply for funds to repair the domestic wastewater treatment plant levee break at Pond #2. The other project is to apply for funds to install additional waterlines. This public hearing is to invite public comment on these two applications or to propose other projects.
Mayor Varela opened the Public Hearing at 10:40 p.m.
Angelina Torres asked if these grants are going toward water improvements on top of the funds that the City is already raising through its water rate increase. City Manager Warne stated that there are no guarantees, but the grant could potentially offset the cost of a project that would otherwise have been funded by the water rate increase.
Ms. Torres asked if the money could be used for any other project.
City Manager Warne stated that the City becomes more competitive in its grant applications for water and wastewater capital improvements when the City has a rate structure that is deemed to be more reasonable by state regulators. The actions taken by the City Council this evening on the water rates and the domestic wastewater rates will make the City’s grant applications more competitive in the future.
Mayor Varela closed the Public Hearing at 10:42 p.m., there being no further public comments.
Council Member Espinoza said he didn’t recall getting a cost estimate for the repairs.
City Manager Warne said cost estimates are in the domestic wastewater rate study. He believed the cost is $440,000, but he would have to check the exact amount.
Council Member Espinoza stated that he thought the City usually used the Community Development Block Grant (CDBG) for housing. City Manager Warne explained there is a separate Community Development Block Grant (CDBG) program called the HOME program that is specifically for housing. The City will be applying for $800,000 in HOME money under a separate application for a housing rehabilitation program and first-time homebuyer program. The City can apply for additional housing funds under the Community Development Block Grant (CDBG) General Allocation program, but it seemed that applying for infrastructure projects would be the best use of these funds.
Mayor Pro Tem Vierra said this levee repair is to improve it so that we do not have `another problem where it breaks again. City Engineer Gottiparthy said that Mayor Pro Tem Vierra was correct.
Council Member Aguilar said that the cost of the levee repair was $440,000. But the grant application for the levee break is for $400,000. There is also an $80,000 request for City funds for the waterline improvements. City Engineer Gottiparthy explained that the Community Development Block Grant (CDBG) has a 10% local match requirement. The local match for the waterline improvements will come from the Water Enterprise Capital Projects Fund and the domestic wastewater treatment plant levee break local match will come from the Domestic Wastewater Treatment Capital Projects Fund.
Council Member Aguilar asked if the City was going to hire a contractor for the repairs. City Engineer Gottiparthy said that every large project such as this goes through the bidding process.
Mayor Varela asked if the project will go through the Planning Commission. He said that once the project is approved, an agreement for the use of the funds will come back to the City Council for approval.
7. Discuss Proposed Scope and Activities for the Grant Application for $800,000 under the General Allocation of the Community Development Block Grant (CDBG) Program for Water Line Improvements, Phase II to be Performed within the City of Livingston.
City Engineer Nanda Gottiparthy said that this public hearing is very similar to the previous public hearing. The City proposes to apply for $800,000 in Community Development Block Grant (CDBG) for Phase II waterline improvements.
Mayor Pro Tem Vierra asked if the most the City can request is $800,000? City Engineer Gottiparthy said this is the maximum amount.
Mayor Varela opened the Public Hearing and subsequently closed the Public Hearing at 10:49 p.m. as there were no public comments.
Mayor Varela asked how much of the waterline replacement is left after this project. City Engineer Gottiparthy thought that it was about 40 percent.
Mayor Varela asked if was better to replace all of the pipes in one portion of the town before moving to another area. City Engineer Gottiparthy said that the City’s application is more competitive if it can be shown that a large number of targeted income group residents benefit from the improvements. More points are given to projects that benefit more people. For this reason, it is better to do the project in a number of sections of town.
Council Member Espinoza said that is a good answer and helps the citizens from saying you are trying to favor certain people.
8. Discuss Proposed Scope and Activities for the Grant Application for $400,000 under the General Allocation of the Community Development Block Grant (CDBG) Program for Wastewater Treatment Plant (WWTP) Pond Perimeter Levee Repair to be Performed within the City of Livingston.
City Engineer Gottiparthy said that this is the second Community Development Block Grant (CDBG) application that the City is making. It is to complete the design and construction of the levee repair. There will also be some costs for permitting for this project.
The Public Hearing was opened by Mayor Varela at 10:53 p.m.
Angelina Torres stated she understood that the Community Development Block Grant (CDBG) was for older housing. She said that the City was proposing to use the money for another purpose.
City Manager Warne explained that the Community Development Block Grant (CDBG) program can be used for a wide variety of purposes as long as it is used for the targeted low-income group. The City can apply for housing or it can apply for infrastructure projects as long as it benefits low- and moderate-income residents. He said what the City has chosen to do is infrastructure projects with these funds and apply for housing funds under the HOME program for a housing rehabilitation program and first-time homebuyer program under a separate application.
Council Member Espinoza stated that the City used Community Development Block Grant (CDBG) funds for the Court Theater.
Council Member Warne stated that the City Council, as the governing body, could choose to do something different than what staff is recommending. He said the City Council could direct staff to make an application for another project.
Council Member Espinoza said that he feels that he is under pressure to apply for the grant funds for the levee break. City Manager Warne said that if you do not want to use the funds for the levee break, you can direct that the money be used for another purpose. The decision rests with the City Council.
Mayor Varela closed the Public Hearing at 10:57 p.m. as there were no public comments.
Mayor Pro Tem Vierra said the City was found to be in violation when the levee broke. We do not have the money from another source to fix the levee break. This seems like a good use of these Community Development Block Grant (CDBG) funds.
Mayor Pro Tem Vierra presented the following consent agenda items for the Council’s consideration:
10. Approve Resolution for the Acceptance of the Proposition 1-B Roadway Rehabilitation Project (Project B), Authorizing the City Clerk to Record a Notice of Completion with Merced County and Authorizing the City Manager to Release Performance and Material Bonds and to Make Final Payment of Retention Monies to Top Grade Construction, Inc.
12. Approval of Minutes of Meeting Held on May 19, 2009.
13. Approval of Warrant Register Dated July 1, 2009.
Council Member Espinoza requested that Warrant Number 62816 be pulled for discussion. Council Member Espinoza said that there was a City-County dinner and the City Manager did not attend the dinner after he had registered for it and Council Member Martha Nateras had a guest at the dinner. Council Member Nateras stated that she paid the City for her guest. City Manager Warne said that he worked on the City budget until 11:00 p.m. that evening. He said that he has already written a $30 check to the City for the dinner.
Council Member Espinoza pulled Warrant No. 68230 because he said that he wanted to vote no on legal bills for the grand jury investigation. Mayor Pro Tem Vierra said these charges are for miscellaneous legal counsel services. He noted that anytime we talk to the attorney there is a charge.
Mayor Varela asked if these are personal calls from CouncilMembers. Mayor Pro Tem Vierra reiterated that when the Council calls the attorney, the City gets charged.
Council Member Nateras asked if anyone verifies if these charges are correct. Vickie Lewis said she does not verify City Council calls, but she does verify department head calls. City Attorney Hobbs said that he and his law firm have fiduciary and ethical responsibilities to be sure that clients are not improperly billed. He said that he takes these responsibilities seriously.
Motion: M/S Vierra/Varela to accept all Warrants with the exception of # 68230. The motion carried 5-0.
Motion: M/S Vierra/Varela to approve Warrant No. 68230. The motion carried 3-2, with Council Members Aguilar and Espinoza voting no.
DISCUSSION AND POTENTIAL ACTION ITEMS
14. Approve Resolution for 2009/2010 Applications for Funding and the Execution of a Grant Agreement and any Amendments Thereto from the General Allocation of the State Community Development Block Grant (CDBG) Program and Authorizing the City Manager to Act on Behalf of the City.
City Engineer Nanda Gottiparthy presented the agenda item. This is where the resolution is passed authorizing the City to submit the Community Development Block Grant (CDBG) applications.
Council Member Aguilar asked once that money comes in, and the project bids are less, what happens to the money. City Engineer Gottiparthy said the City would not be reimbursed. The City is reimbursed only for actual expenditures.
Mayor Pro Tem Vierra commented that if the waterline project bids come in lower than expected, the City can do additional waterline replacement to use all of the federal funds. City Engineer Gottiparthy said that Mayor Pro Tem Vierra is correct.
Angelina Torres asked if this resolution gives the City Manager the authority to sign documents for this project. City Engineer Gottiparthy said that it did. Ms. Torres asked if the City Manager had to come back to the City Council to report on what he is doing. The City Engineer stated that the City Manager will bring back the bids for City Council approval.
Motion: M/S Vierra/Nateras to adopt Resolution No. 2009-37 for 2009/2010 Applications for Funding and the Execution of a Grant Agreement and any Amendments Thereto from the General Allocation of the State Community Development Block Grant (CDBG) Program and Authorizing the City Manager to Act on Behalf of the City. The motion carried 4-1 by the following roll call vote:
AYES: Council Members: Espinoza, Nateras, Varela, Vierra
NOES: Council Members: Aguilar
ABSENT: Council Members: None
15. City Council Guidance Regarding California Department of Public Health Enforcement Letter for Failure to Comply with Secondary Drinking Water Standard for Manganese for Well #15.
City Manager Warne said that this issue has been before the City Council previously. The City Council needs to decide if it would like to seek a waiver for manganese or proceed with engineering to do well-head filtering. Staff recommends that the City move forward with well-head filtering treatment for manganese in Well #15, inform the State of its decision, and authorize the City Engineer to begin to work with the State to determine the most appropriate treatment process.
Mayor Pro Tem Vierra asked how long the State will allow Livingston to get the money for treatment. City Manager Warne said the State is going to work with Livingston, as long as the City has a plan and is moving forward to solve the problem.
Council Member Espinoza said that the City Engineer suggested that it would cost $1 million to do well-head filtering. He asked if the City got any other bids. City Manager Warne said that the City will bid the project when it comes time to do the engineering and the construction. The City Engineer’s estimate of $1 million is a ballpark estimate.
Council Member Espinoza said he favors filtering the water as long as it costs less. City Manager Warne stated that the City will work to find the most cost-effective method of well-head treatment.
Katherine Schell Rodriguez commented that an engineering friend on twitter told her that the approximate cost for the well-head filter would be about $1 million.
Motion: M/S Vierra/Nateras to move forward with well-head filtering treatment for manganese in Well #15, inform the State of the City’s decision, and authorize the City Engineer to begin to work with the State to determine the most appropriate treatment process. The motion carried 4-1, with Council Member Espinoza voting no.
16. Introduce and Waive the First Reading of One of the Three Ordinances Relating to Establishing Rates for Water Service Fees.
Subitem A–An Ordinance of the City Council of the City of Livingston Establishing Rates for Water Service Fees–Scenario 1.
Subitem B–An Ordinance of the City Council of the City of Livingston Establishing Rates for Water Service Fees–Scenario 2.
Subitem C–An Ordinance of the City Council of the City of Livingston Establishing Rates for Water Service Fees–Scenario 3.
This item was pulled from the agenda.
17. Introduce and Waive the First Reading of One of the Three Ordinances Relating to Establishing Rates for Domestic Wastewater Service Fees.
Subitem A–Ordinance of the City Council of the City of Livingston Establishing Rates for Domestic Wastewater Service Fees–Scenario 1.
Subitem B–Ordinance of the City Council of the City of Livingston Establishing Rates for Domestic Wastewater Service Fees–Scenario 2.
Subitem C–Ordinance of the City Council of the City of Livingston Establishing Rates for Domestic Wastewater Service Fees–Scenario 3.
This item was pulled from the agenda.
18. Introduce and Waive the First Reading of an Ordinance of the City Council of the City of
Livingston Amending the Livingston Municipal Code Relating to Water Service Penalties and Collection Procedures.
City Attorney Hobbs presented the agenda item. This is a housekeeping measure and brings the City’s Municipal Code into line with the actions of the City Council this evening. It allows the City to charge up to 10% of the unpaid balance on City water bills and authorizes property liens for delinquent water bills.
Motion: M/S Vierra/Nateras to Introduce and Waive the First Reading of Ordinance No. 583, an Ordinance of the City Council of the City of Livingston Amending the Livingston Municipal Code Relating to Water Service Penalties and Collection Procedures. The motion carried 3-2 by the following roll call vote:
AYES: Council Members: Nateras, Varela, Vierra
NOES: Council Members: Aguilar, Espinoza
ABSENT: Council Members: None
18. Introduce and Waive First Reading of an Ordinance of the City Council of the City of Livingston Amending the Livingston Municipal Code Relating to Wastewater Service Penalties and Collection Procedures.
The agenda item was presented by City Attorney Hobbs. This is a housekeeping measure for the domestic wastewater ordinance and brings the City’s Municipal Code into line with the actions of the City Council this evening. It allows the City to charge up to 10% of the unpaid balance on City domestic wastewater bills and authorizes property liens for delinquent water bills.
Council Member Aguilar stated that she was concerned about the 10% penalty after the City had already passed the domestic wastewater rate increase. Now the City is trying to charge the residents more. She said the City will be lucky to get any of this money.
Council Member Nateras said that the City is actually going to be charging less. City Manager Warne agreed, and said that the City currently charges 10% on the unpaid balance for as long as there is delinquency. Under this ordinance amendment, the City can only charge 10% the first month and then a half of a percent every month thereafter on unpaid bills. The City is going to administratively adjust its computers to charge five percent every month for two months. After two months the water will be shut off. The City can do this and be within the parameters of State law and City ordinance.
City Manager Warne said this is a housekeeping and administrative action.
Motion: M/S Vierra/Nateras to Introduce and Waive First Reading of Ordinance No. 584, an Ordinance of the City Council of the City of Livingston Amending the Livingston Municipal Code Relating to Wastewater Service Penalties and Collection Procedures. The motion carried 3-2 by the following roll call vote:
AYES: Council Members: Nateras, Varela, Vierra
NOES: Council Members: Aguilar, Espinoza
ABSENT: Council Members: None
20. City Manager Announcements and Reports.
City Manager Warne reported the City received approval from the State to begin the design of the sidewalk program funded by the Federal Highways Administration grant.
The meeting was adjourned by consensus at 11:26 p.m. ______________________________
City Clerk of the City of Livingston
APPROVED: September 15, 2009
Mayor or Mayor ProTempore
The written meeting minutes reflect a summary of specific actions taken by the City Council. They do not necessarily reflect all of the comments or dialogue leading up to the action. All meetings are digitally recorded and are an official record of the meeting’s proceedings. Digitally recorded verbatim minutes are available, upon request, and may be obtained at Livingston City Hall.