APRIL 20, 2010 Draft Minutes



APRIL 20, 2010

A Closed Session/Regular Meeting of the Livingston City Council was held on April 20, 2010, in the City Council Chambers with Mayor Varela presiding.


Mayor Varela opened the meeting.


Mayor Daniel Varela, Sr.

Mayor Pro-Tem Frank Vierra

Council Member Rodrigo Espinoza

Council Member Margarita Aguilar

Council Member Martha Nateras

Also present were City Manager Richard Warne, Assistant City Manager/Finance Director Vickie Lewis, and City Attorney Jonathan Hobbs.

The Council went into Closed Session to discuss the following matters:

1. Conference with Legal Counsel—Existing Litigation.

Government Code Section 54956.9(a).

a. Merced County Farm Bureau v. City of Livingston, et al., California Superior Court, County of Merced, Case No. CU151754 [consolidated with Valley Advocates v. City of Livingston, et al, Superior Court, County of Merced, Case No. CU151757].

b. Fernando Davalos et al, v. City of Livingston, et al, California Superior Court, County of Merced, Case No. CV000669.

c. Foster Poultry Farms, Inc. v. City of Livingston, et al, California Superior Court, County of Merced, Case No. CV000752

d. Foster Poultry Farms, Inc. v. City of Livingston, Merced County Superior Court, Case No. CV000292, California Court of Appeal, Fifth Appellate District, Case No. F059871. 

2. Conference with Legal Counsel—Anticipated Litigation.

Significant Exposure to Litigation pursuant to Government Code Section 54956.9(b): (1 Case).


The Council came out of Closed Session and into Open Session.



Mayor Varela called the meeting to order at 7:07 p.m.


The pledge of allegiance to the flag was recited.


Mayor Daniel Varela, Sr.

Mayor Pro-Tem Frank Vierra

Council Member Rodrigo Espinoza

Council Member Margarita Aguilar

Council Member Martha Nateras


There was no reportable action from Closed Session.


There were no changes to the agenda.



1. Presentation of Government Finance Officers Association (GFOA) Budget Presentation Award to City of Livingston for City Budget Beginning July 1, 2009.

Mayor Varela read a letter from the Government Finance Officers Association (GFOA) stating that the City had received the Distinguished Budget Presentation Award for the fiscal year beginning July 1, 2009. The letter stated that this award is nationally the highest form of budget recognition. He said that the plaque will be presented at a future meeting.

2. Silver Star Banner Day Proclamation.

Mayor Varela read a Proclamation declaring May 1 as Silver Star Banner Day in the City of Livingston in honor of the wounded members of the Armed Forces. Mayor Varela said that there was no one present to accept the Proclamation.

3. Week of the Young Child Proclamation.

Mayor Varela read a Proclamation declaring April 18-24 as the Week of the Young Child in the City of Livingston. He presented the proclamation to Jenny Salazar and Carmen Quiroz.

Carmen Quiroz thanked the Mayor and members of the City Council for the proclamation. She is a licensed child care provider in the City of Livingston and has been in business for 12 years. She has worked to help children prepare themselves to be successful when they reach school age. Ms. Quiroz said that their organization wants parents to feel that they leave their children in a safe place when they go to work. She thanked the City Council, on behalf of the Merced County Week of the Young Child Committee, for making our children a priority.

Mayor Varela said he had the opportunity to visit these facilities and it is very exciting that we can provide this type of care for our children. It is important for the community to provide a safe learning environment for children.

3. Donna Kenney – Five Year Service Recognition.

Mayor Varela presented a service pin to Donna Kenney, Community Development Director, in recognition of her five years of service with the City. He said that Donna Kenney did an excellent job for Livingston and expressed appreciation for her service.

4. Kathryn Reyes – Five Year Service Recognition.

Mayor Varela presented a service pin to Kathryn Reyes, Public Works Supervisor, for her five years of service with the City. He said that Kathryn Reyes was an excellent employee that was proactively trying to make the community a better place to live. Mayor Varela expressed appreciation for her service to the community.


Supervisor John Pedrozo Announcements and Reports.

· Stated that he had been traveling frequently to Sacramento in support of the high speed rail.

· Commented that he was glad that the City Council had issued a Proclamation designating the Week of the Young Child. The Board of Supervisors passed a similar Proclamation last week. He has adopted six pre-schools where he goes and reads to the children three or four times a year. He is a big supporter of early childhood development and education.

· Stated that the high speed rail project will now analyze two routes in the environmental study. Elected and appointed officials from San Joaquin County to Merced County favor Route #2. The project is moving forward rapidly due to the stimulus dollars from the Federal Government and bond revenue approved by the voters in November 2008. There is stiff competition for the heavy maintenance facility between Merced County and Fresno County.

· Commented that more construction will take place on Highway 99. The next improvement phase will begin in November and will involve the widening of the highway and the elimination of the at-grade crossings in the southern part of Merced County.

· Reported he participated in the Livingston Relay for Life last Sunday. He said that Martha Nateras did an outstanding job with the event. This weekend he will participate in the City of Merced Relay for Life.

· Commented that it was going to be a difficult budget year for Merced County with additional funding cuts from the State. He said the Board of Supervisors will be doing the best they can during these difficult times.

Mayor Pro-Tem Vierra asked where the Relay for Life in the City of Merced will be held. Supervisor Pedrozo said that it will be held at Merced College beginning at 8:00 a.m.

City Council Members’ Announcements and Reports.

Council Member Margarita Aguilar

· Stated that some people have expressed concerns to her about the volume of the televised City Council meetings. She asked Mayor Varela and Mr. Hobbs to remember to turn on their microphones at all times when talking with residents. Sometimes you can barely hear the Mayor. She also asked that the cameras focus on the speaker instead of the City Council during public comments. Residents want to know who is speaking.

· Stated that she was absent from the last Special Meeting of the City Council. She emailed Donna Barnes and the City Attorney in advance to let them know that she would not be attending the meeting. She said that she did not hear an announcement of her excused absence on the meeting recording. She wanted everyone to know that she did have a good excuse for not attending the meeting.

· Reported that the Livingston Community Network is having a chicken dinner on Saturday morning in Memorial Park. All of the proceeds will go towards scholarships to promote education for our students. Scholarship awards will be handed out in mid-May.

· Announced that the Volunteer Fire Department will hold its annual pancake breakfast on Saturday, May 1, from 7:00 a.m. to 1:00 p.m. Tickets are $8.00 and can be purchased at the fire department or from fire volunteers. Some of the businesses have been kind enough to let them post fliers and she wanted to thank those businesses. The kids are able to tour the fire department during the breakfast. The staff does prepare the pancakes, and the event is a lot of fun.

· Said she would like to commend those individuals who were responsible for staging the Relay for Life. She did not attend because of a medical problem that kept her from walking; however, she heard many great things about the event. Her prayers go out to the survivors and to those who have lost someone to cancer. We need to remember that there are caregivers for these people. They give so much and do not ask for anything in return.

Council Member Rodrigo Espinoza

· Asked when this televised meeting would be replayed? City Manager Warne said City Council meeting is televised live and then aired on Saturday at 10 a.m. He asked if there could be a sign put up so that people know when the meeting will be replayed. He wants to make sure that people know when the meeting will be re-televised.

· Asked when the sod will be installed at the park/storm water basin in the Parkside Subdivision. City Manager Warne said he had discussions with the developer today regarding this issue. There are more issues and things that need to be done than just the sod. These include the well house, drainage problem, storm water pump station and several other things. The developer has promised to move forward to complete the sprinkler system, fix the drainage problem, finish repairs on the well house, storm water pump station and storm drain and installation of the sod.

Council Member Espinoza said the weeds are going again in the park/storm water basin. We need to send a notice to the developer. The developer promised the City that he would install the sod and it has not been done. City Manager Warne stated that he reminded the developer of his promise in a City Council meeting to install sod when the weather improved. The developer is well aware of the City’s position on the sod issue and staff has been pressing him about this. The City’s problem has been, as he has explained previously to the City Council, is the

Development Agreement negotiated before he became City Manager. The development agreement contains no certain date when the developer had to have the park/storm basin improvements completed. He believed that the developer will move forward after today’s meeting.

Council Member Espinoza felt that the City should not issue any building permits to the developer until they installed the sod. Citizens are paying for a park when they buy their houses. City Manager Warne agreed and reminded Council Member Espinoza that the developer promised in a City Council meeting to move forward with the sod installation as soon as the weather cleared up.

· Stated he has been pulling warrants payable to the City Attorney because the City Council meetings are being cancelled. He said that the City Council meetings are being cancelled only a few days before the meeting. City Council meetings have been cancelled since we started talking about the water rates. He thought that this was deceitful. The Resolution on the agenda tonight gives all the power to the City Manager and City Attorney. He thinks the City Council should be able to look at the warrants. He knows that all warrants will still come before the City Council for approval, but they will still be paid anyway. City Manager Warne said that issue is being addressed tonight on the City Council agenda and he had no comment at this time.

Council Member Martha Nateras

· Said she would like to thank everyone that donated and contributed to the Young Women’s Conference held on March 20. She said that the conference was a huge success. She gave copies of the evaluations to those that contributed to the conference. The conference will be an annual event.

· Reported that the Livingston Relay for Life raised over $51,000. Additional donations still coming in. She said the goal was $32,000. She thanked everyone that participated and contributed to this activity. She encouraged those who had not been part of Relay for Life to participate next year. It is a great experience to participate in this event.

· Reported that the new Planning Commissioners, Luis Flores, Alexander Gonzalez and Hugo Salgado, were sworn in at the last Planning Commission meeting and had assumed their new duties. Planning Commission agenda items included approval of an antenna on the tower next to the Public Works Department for Open Range Communications and approval of the office relocation of Newman Internet Auto Sales.

· Asked Community Development Director Kenney for a status report on the replacement of the asphalt shingle roofs with tile roofs in Parkside Subdivision. Residents in the subdivision have informed her that the developer had not communicated any information to them regarding the replacement of the roofs. Community Development Director Kenney explained that the vacant houses that had asphalt shingle roofs were being completed before the occupied houses due to the weather. The developer will then move on to the occupied houses. She said that she would give the developer a telephone call the next morning to have him communicate with the homeowners.

Mayor Pro-Tem Frank Vierra

· Stated that some Parkside Subdivision residents were told by K. Hovnanian Homes that they were working on the new homes first so that the new buyers could qualify for the $8,000 tax credit from the State and Federal Government. He thought that the owner-occupied homes deserved just as much attention on their homes as was being spent on the houses of the new homeowners. Community Development Director Kenney said she will discuss this with the developer in the morning.

· Stated that he was proud of the community’s young people at the Relay for Life. Half of the people participating in the event were under 20 years old. Many more people participated in Relay for Life this year than participated last year.

· Stated that Council Member Espinoza and Council Member Aguilar had requested that the interviews for the Planning Commission be televised. But, when one Planning Commission candidate complained about the televised interviews, Council Member Aguilar withdrew her request to have the interviews televised to the community. Mayor Pro Tem Vierra stated that many people wanted to see the interviews and were upset about the decision not to televise them. He said that transparency means that everything is transparent, not just certain items, and not just certain people. It is everything. Transparency means that you cannot pick and choose. It means across the board.

Council Member Aguilar said she was guilty of that. She wanted to make sure that every person who applied for the position felt comfortable enough in their interview to answer the questions to the best of their ability. It was an idea because there were residents who were not going to be able to view the interviews. She wanted to thank those that applied for the Planning Commission. She did not think it made a bit of difference if they were on television. They were here for themselves. She is confident that we picked three good planning commissioners.

Mayor’s Announcements and Reports.

Mayor Daniel Varela, Sr.

· Reported that the City hosted a meeting with Larry Combs, the new Merced County Chief Executive Officer (CEO). The City Manager and Mayor gave him a tour of the community and reviewed City projects with him. The meeting gave Mr. Combs a good background and perspective of the community.

· Reported that Thursday, April 1 was the 2010 Census Day. He thanked the members of the Livingston Census Complete Count Committee, especially Kaye Greeley, the chairperson of the committee for her leadership. He also thanked community members, the kids and Kathy Berkeley, the Census liaison for the Livingston Union School District for her commitment to the 2010 Census. Students from the high school and middle school participated in a public service announcement encouraging people to participate in the 2010 Census. Mayor Varela said that the U.S. Census Bureau had reported that 65 percent of the residents had mailed back their census forms. City Manager Warne encouraged everyone to mail in their census forms if they had not done so. Households that do not mail in their census forms will be visited by a census taker.

· Commented that American Legion Post 83 held a Merced County volunteer firefighter recognition night on April 7. Livingston volunteer firefighter James Clark was recognized and we want to recognize him tonight. Mayor Varela will be attending the Livingston Volunteer Firefighter meeting next month.

· Stated that the Livingston Recreation Baseball program had their opening ceremony on April 9. The adults and kids at the event had a good time. He thanked the Livingston Recreation Department for doing a great job. He hoped that everyone has a safe and fun baseball season.

· Reported that he and City Manager Warne met with Livingston Union School District Superintendent Henry Escobar on April 14 to promote some after-school youth programs. Mr. Escobar promised to promote the City’s media program and get the school involved. The government access channel is not just for City Council meetings.

· Reported that he and the City Manager went to Pacifica to look at their solar energy project at their wastewater treatment plant. He said we are looking at how we might implement a similar program in the community. This project could save the community and the taxpayers’ money in the future.

· Commented that on Thursday he attended a Merced County Association of Governments (MCAG) Board meeting. Later that day he attended the 100th anniversary of the Merced County Library system. In the evening he attended the Hispanic Chamber of Commerce meeting.

· Stated that next Thursday he is going to host Merced Junior College President Ben Duran. He is going to take a tour of the community and the school campuses.

On Friday he plans to attend the grand opening of the new Merced Mercy Medical Center.

· Reported that on Wednesday he and the City Manager will be participating in the Livingston High School senior exit interviews. He said that he is always looking for ways to promote the positive things that are happening in the community.

Council Member Aguilar asked Mayor Varela if he would like to share details of his recent trip to Washington, D.C. She believed he was gone for a few days with the City Manager.

Mayor Varela stated that the trip was an opportunity for Livingston to meet with Federal elected officials and federal agencies to lobby on behalf of the community. He said they met with Senator Barbara Boxer, Senator Dianne Feinstein, officials from the Department of Housing and Urban Development (HUD) and other Federal agencies. The objective of the meetings was to obtain Federal funds for Livingston and to get funds from a Federal sidewalk grant released so that the City could begin building the sidewalks in the community. Mayor Varela stated that these Federal sidewalk funds had been held up for five or six months at the California Department of Transportation. However, due to their efforts, the funds were released by State and Federal officials by Friday of the visit. The City Engineer called on Friday and said, “Hey, I don’t know what you guys did, but the federal sidewalk funds have been released for Livingston.”

City Manager Warne explained that $871,000 in federal grant funds for Livingston had been held up for many months in the California Department of Transportation bureaucracy. However, as a result of our meetings with federal officials, the money was released by Friday of the week of the visit. The project is now out to bid and the bid opening is scheduled for May 4. The project will build sidewalks and bring jobs to the community.

City Manager Warne said there is $250 billion dollars of the Federal stimulus monies that still needs to be distributed, and another $150 billion in Federal funds in the pipeline in the new Federal jobs bill. Our goal was to go to Washington D.C. to meet with the people that distribute the money to ensure that Livingston gets its fair share of these funds. We are talking about a significant amount of money. He said that Federal funds released for the Livingston sidewalk project is going to put people to work and provide safe sidewalks to the residents of our community. He said it was a successful visit on behalf of the residents of Livingston.

Mayor Varela stated that it is very important that we work together with the County and the other cities in Merced County. Livingston is not an island. He said that the cities and the County were also working for the Highway 152 by-pass, the Atwater-Merced Expressway, and the Exchequer Dam improvements. Merced Irrigation District (MID) wants to raise the dam 18 feet, but is having issues with the environmentalists. We need to raise the dam to hold more water. We are scheduled to tour the dam site next month to learn more about this project and its impact on the Merced Irrigation District (MID) and the City of Livingston.

Supervisor John Pedrozo said Senator Boxer and Senator Feinstein sent an appropriation request of $500,000 to the Congressional leadership for Merced County as a result of the visit to Washington D.C. He said that Merced Mayor Spriggs and Livingston Mayor Varela did a great job in Washington D.C. in achieving results for the City of Livingston and Merced County.

Mayor Varela stated that Congressman Cardoza visited Livingston two weeks ago and looked at the Livingston Medical Group F Street project. He toured the community and he is going to do whatever he can to get the project funded. This is why we went to Washington to get projects funded and it has paid off.

City Manager Warne commented that the City also discussed Federal funding requests for various water and sewer projects during Congressman Cardoza’s visit to Livingston. We are working diligently to get Federal and State grants for the City of Livingston.


1. Resolution Approving a One-Year Extension of the Approval Date of Site Plan/Design Review 2007-02 for the Horisons Unlimited Health Care Facility to be located at 164 B Street.

Community Development Director Donna Kenney presented the agenda item asking the City Council to approve a one-year extension of the Site Plan/Design Review 2007-02 for the Horisons Unlimited Health Care Facility to be located at 164 B Street. It is a 48,800 square foot medical office building on 2.25 acres of property. The second floor of the facility will be used to train nurses. The Livingston Municipal Code requires that developers move substantially forward with their project within 24 months of approval from the City Council. Due to health issues with the executive director and the economy, the developer had not been able to move forward. Their approvals will expire on May 6, 2010, if an extension is not granted.

Mayor Varela stated that this is an exciting project. He said, if they only want a one year extension, it sounded like they are ready to do something. Community Development Director Kenney said that this was correct. The developer needs to take substantive action such as submitting the grading plans and submitting the off-site improvement plans.

Council Member Espinoza thought that this is a great project. He knows that the developer has been trying to purchase extra land for a parking lot from the Livingston Union School District rather than building an underground parking garage. Community Development Director Kenney stated Horisons found that it was cheaper to purchase additional property rather than build an underground parking garage. She understood from talking to Wayne Koehn that the developer has been in talks with the Livingston Union School District to purchase land for the parking lot.

Council Member Espinoza said he had no problem with this.

City Manager Warne stated that he has had meetings with School Superintendent Henry Escobar on the property transfer. The City’s Redevelopment Agency will purchase the land from the School District and then sell it to the developer for the parking lot. Community Development Director Kenney said that the developer would need to purchase one acre of property in order to get the needed 54 parking spaces.

Council Member Aguilar stated that she favors the project. She feels that the project is in a good location with good access to residential areas and the freeway.

Community Development Director Kenney noted that the clinic is currently located at F and Hammatt Streets. They are extremely crowded in their current facilities.

Mayor Pro-Tem Vierra felt that the developer should be present when their project is considered by the City Council. Community Development Director Kenney said she communicated with the developer this morning and was under the impression that they would be at the City Council meeting.

Mayor Pro-Tem Vierra stated that the property is currently an eye sore. The developer has disked the weeds, except around the house where the weeds are two feet high. There is also graffiti on the back of the construction trailer, plus a washer and several large chairs on the front porch. He said this is the entrance to our City and asked if this is going to be the way the property is going to be maintained when the new clinic is built. Mayor Pro-Tem said that the developer’s clinic in Gustine is unkept. Their current clinic on Hammatt Avenue has signs hanging all over it. He pointed out that there are no sidewalks on B Street and it will be difficult for someone to walk to the clinic. This eye sore needs to be cleaned up by the developer.

Community Development Director Kenney said she would refer this to the code enforcement officer tomorrow morning.

Mayor Pro-Tem Vierra asked who is using the building. There are lights on late at night, and cars parked during the day. He did not know they were using this building before they went into business. Community Development Director Kenney explained they are using the building for staff meetings. They do not have a staff meeting place at their current clinic. It is her understanding that they have had people lurking around, so they do leave lights on and off to show that the building is occupied.

Council Member Nateras expressed concern about the company because the owner is not present at the City Council meeting. This is not the first time that the owner has not been present at a City Council meeting when their project was discussed. She expressed concern about the commitment of the clinic to Livingston because the developer built in Gustine and Los Banos rather than Livingston. Community Development Director Kenney commented that the Gustine site was an on-going clinic. The applicant, Sandy Haar, was trying to pursue the construction of both clinics in Los Banos and Livingston at the same time. She left this project and went to Los Banos and has completed the clinic there. They had their grand opening about two months ago and she now feels she has the experience and the time to move forward with the Livingston clinic.

Council Member Nateras commented she thinks this is a great project.

Council Member Espinoza stated the road in front of the clinic is bad. He hoped that the road will be improved. Community Development Director Kenney said the applicant will be doing street and sidewalk improvements in front of their development.

City Manager Warne said Ms. Haar has to do the set backs. The City is scheduled to receive approximately $113,000 in Proposition 42 street money next month. The State of California has been holding the money all year due to their budget problems. He said the City’s plan was to take that money, already budgeted in the Proposition 42 Special Revenue Fund, to pave B Street from Briarwood Drive to Robin Avenue. The project would also construct a temporary asphalt sidewalk from Briarwood Drive to Winton Parkway. City Manager Warne said he did not think that anyone would disagree with him that this is the worst road in the City. The City will bid the project and the staff will bring the bids to the City Council in early June.

Mayor Varela commented that the temporary asphalt sidewalk is needed. He has seen kids walking along the dirt shoulder and felt that this was very dangerous.

The hearing was opened by Mayor Varela for public comment at 8:10 p.m.

Ralph Mull, 1445 First Street, stated he is glad to hear about your trip to Washington D.C., and that something productive came out of it. Mr. Mull believed that B Street is very dangerous. He said he and his kids ride their bikes on the dirt to Jack in the Box, to Travel Centers of America or other locations on Winton Parkway. Mr. Mull said he is glad that we are getting funds to pave the street and construct the sidewalk, especially if there is going to be a medical clinic on B Street. We cannot put our citizens in danger.

Mayor Varela closed the hearing at 8:13 p.m. as there were no further comments from the public.

Motion: M/S Espinoza/Aguilar to adopt Resolution No. 2010-11, Approving a One-Year Extension of the Approval Date of Site Plan/Design Review 2007-02 for the Horisons Unlimited Health Care Facility to be Located at 164 B Street. 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


Katherine Schell Rodriquez, P.O. Box 163, asked what we are going to do about Well #15. She said about two years ago Well #15, the one by Starbucks, tested just a bit high with manganese, not enough to make you sick, but just enough to make it look funny and just enough to make it taste funny and just enough for the State to tell the City to do more testing. So, the City did what the State asked it to, and tested and retested the well over the course of about one year. When the test results were averaged the State said the manganese was a little too high, not enough to make you sick, but just enough to affect the taste and just enough to affect the smell and just enough for you to have to do something about it. So the State sent a letter to the City in late May 2009 that it better do something and in June the Council talked about what to do. They talked and tabled it until the meeting in July. In July the Council voted to have the City work with the State to get Well #15 filtered, which was going to cost about $1 million which we really do not have. However, the State was willing to work with the City, because the City was raising the rates and there would be enough money to work on this. Ms. Schell Rodriguez said, well here we are and we all know what is going on in the political realm with water rates, so she asked both the Council and the audience, if the rates get rolled back by force or by the Council, what are we going to do about Well #15?

Luis Flores, 707 Almondwood Drive, commented that the Livingston High School Alumni Jazz Band had been practicing for the July 4 celebration. He said he received a call last week and was informed that the band would no longer be practicing because the Livingston July 4 Festival was cancelled. He wondered if that is true and if so, why is it true? Many people come back for this celebration and it is disheartening for Livingston to cancel it.

Mr. Flores also asked if there are any updates with the Citizens’ Service Committee.

City Manager Warne explained that the City is cancelling the July 4 celebration because of funding constraints. He said that the City cannot afford to use government funds to pay for the July 4th celebration this year.

Warren Urnberg, 1331 Eighth Street, commented that the past Public Works Director, Mr. Creighton had a May court date and he does not remember seeing anything in the newspaper about this. He asked for an update on this case. City Attorney Hobbs explained the City and the City Council have no comment on that issue

Mr. Urnberg noted that the meeting before last the City Attorney told a citizen to sit down after they made a comment. City Attorney Hobbs said he did not recall the incident, but if Mr. Urnberg said it happened then it likely did happen. Mr. Urnberg stated that he would not be up here if the City Attorney had not said it because it disturbed him. He felt it should be someone from the dais other than the City Attorney that could tells a citizen to sit down.

Mr. Urnberg said he would like to see a City code book in the library and possibly at the senior center.

Community Development Director Kenney said she placed copies of the zoning code, 1999 General Plan Update, 2025 General Plan Update and the City’s design code at both the library and the senior center. She will check to make sure they are not missing and if they are, she will replace them.


Mayor Pro-Tem Vierra presented the following Consent Calendar items:

Prior to considering consent agenda items, Council Member Aguilar asked that Items 11, 12 and 15 be pulled for separate discussion, individual vote and citizen comments.

Mayor Pro-Tem Vierra asked to pull Item No. 10. Council Member Espinoza requested that Warrant No. 70101 for $92,808.38, part of Item #20, be pulled for discussion.

Motion: M/S Vierra/Varela to approve consent agenda items 7, 8, 9, 13, 14, 16, 17, 18, 19, 21. The motion carried 5-0.

7. Resolution No. 2010-12 Approving the 2010 Update to the City of Livingston Engineering Standards.

8. Resolution No. 2010-13 Approving the Expansion of the Merced County Regional Enterprise Zone Boundaries Within Merced County.

9. Approval of Merced County Association of Governments (MCAG) Work Program and Budget for Fiscal Year 2010/2011.

10. Amended and Restated Joint Powers Agreement for the Transit Joint Powers Authority of Merced County.

Mayor Pro-Tem Vierra said he pulled this item for comments only. He asked Mayor Varela to take this item back to the Merced County Association of Governments (MCAG) as a comment. He said that all of the Local Transportation Funds (LTF) are going to fund the bus program. Some of these funds in past years went for street and road repairs in Livingston. The Merced County Association of Governments (MCAG) needs to find another way to fund the bus system. He said that there were no charges for three or four months to ride the bus. He does not think that this is right and that the transit service is not that good in the County.

Council Member Nateras asked Mayor Varela if he had seen a survey of how many of our residents use the bus system. Mayor Varela said he let the Merced County Association of Governments (MCAG) know that he was not in support of taking our Local Transportation Funds (LTF) monies. There is a group of residents that use the transit services.

Motion: M/S Vierra/Nateras to approve the Amended and Restated Joint Powers Agreement for the Transit Joint Powers Authority of Merced County. The motion carried 5-0.

11. Resolution of the City Council of the City of Livingston Defining the Role, Duties and Responsibilities of the City Attorney.

Council Member Aguilar stated that section one of the resolution says was the City Attorney could be a City employee. She asked if this resolution was making our City Attorney a City employee.

City Attorney Hobbs stated that in the General Law City the City Attorney can be a contract attorney or if you want to have an in-house attorney. He said the City Council appoints the City Attorney and he/she is evaluated by the City Council.

Council Member Aguilar said she knows that the City has not had any rules or responsibilities for the City Attorney and asked who brought this up. City Attorney Hobbs said he brought this up because, in looking through City Municipal Code, he did not find any ordinances or resolutions that define the role and responsibilities of the City Attorney. This is pretty unusual. He brought this item forward to clarify the job description of the City Attorney.

Council Member Aguilar referred to Section 1F and asked how much authority does Mr. Hobbs have to make criminal prosecution decisions without City Council approval? City Attorney Hobbs explained that this section confirms the ability of the City Attorney to act as a prosecutor and prosecute criminal violations. This section is consistent with State law and any criminal prosecution must be filed in the name of the people of California and not in the name of the City of Livingston. He stated that criminal prosecution is generally left up to the District Attorney and he does not envision filing criminal charges against anyone without the approval of the City Council.

Council Member Espinoza stated he did not like this resolution because it gives too much power to the City Attorney and the City Manager. The resolution takes the power away from the City Council.

Gurpal Samra, 1034 J Street, said he has a broad concern about Section 1D. He said that, nowhere does it say that the City Attorney has to come to the Council. He reads it that the City Attorney can file whatever law suits he wants,

City Attorney Hobbs explained that the City Attorney shall and will always consult with the City Council. He will always do that. He said the resolution authorizes the City Attorney to take action to protect the legal interests of the City just like the City Finance Director can take actions to protect the financial interests of the City. This resolution does not authorize the City Attorney to file civil action.

Mr. Samra stated the resolution allows the City Attorney to hire outside legal counsel. He felt that this should only be done with the consent of the City Council.

Ralph Mull felt that the resolution was vague and is worded where the City Attorney can pretty much do what he wants with no regard to what the City

Council wants. If we give away our legal rights, how can we defend ourselves?

Council Member Espinoza said that he pulled the attorney’s bills for discussion by the City Council. Imagine what the legal fees are going to be if the City Council passes this resolution. Council Member Aguilar agreed with Mr. Mull and felt the City was giving away too many legal rights. She said that the Foster Farms appeal was filed without discussing it with the City Council due to urgent time constraints.

Motion: M/S Espinoza/Aguilar not to approve the Resolution Defining the Role, Duties and Responsibilities of the City Attorney. The motion failed to carry by the following 2-2 split vote:

AYES: Council Members: Varela, Vierra

NOES: Council Members: Aguilar, Espinoza

ABSENT: Council Members: None

ABSTAIN: Council Members: Nateras

Council Member Nateras said that she thinks that the resolution needs more clarity. She trusts the City Attorney and when he makes a decision, she believes that he is looking out for the best interest of the City.

Mayor Varela stated that the City Attorney is appointed and serves at the pleasure of the City Council. He said that the City Council as a whole has the authority to terminate the City Attorney if it is not happy with his or her performance.

Council Member Nateras said that the citizens have expressed concern that the City Council is giving too much authority to the City Attorney. Mayor Varela said when the City Council hires the City Attorney; they expect him to protect the interests of the City. If he does not do this, he or she can be terminated by the City Council at anytime.

City Attorney Hobbs stated the City Council has the ultimate authority to fire the City Attorney any time if they are not satisfied with his or her performance. Like any other person on your professional staff, the City Attorney needs to be able to exercise discretion in performing his or her duties. If he were terminated by the City Council, he would shake the hands of the Council Members and professionally walk away.

Council Member Espinoza stated he was not happy with Mr. Hobbs’ performance because he filed the appeal in the Foster Farms case without discussing it with the City Council and giving the citizens information. He said that decision is costing this City money and that decision was wrong.

Mayor Varela stated that if the decision was to defend the City. There are people in this audience that would like these people to fail. He said we probably have 75% of these people here tonight that would like to see these men gone. He stated you are not the voice of Livingston.

Council Member Nateras commented that Council Member Espinoza was not at the last Closed Session. She stated she trusts City Attorney Hobbs to act in the best interests of the City.

Council Member Aguilar said the people here tonight are the voice of the community. We have to be proactive. She felt that the City Council needs to take the resolution back and work on it. Just because something is legal does not make it right. Council Member Espinoza said that he cannot believe that the Mayor said that your voice does not count.

City Attorney said that the City Council can approve this resolution, disapprove the resolution or make changes to the resolution. It is up to the City Council.

Motion: M/S Varela/Vierra to adopt Resolution No. 2010-14, a Resolution of the City Council of the City of Livingston Defining the Role, Duties and Responsibilities of the City Attorney. 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

ABSTAIN: Council Members: None

12. Resolution of the City Council of the City of Livingston Providing for Warrant Payment Procedures.

Council Member Aguilar said that the City has a Warrant Review Committee comprised of her and Council Member Espinoza. She said that they were pulling warrants that they had questions on to be discussed in City Council meetings. Some of the City Council meetings have been cancelled due to lack of agenda items and she and Council Member Espinoza were holding all the warrants until the next City Council meeting. Assistant City Manager/Finance Director Vickie Lewis told her that the City was incurring late fees and they were holding warrants of people that needed their money. She understood where the staff was coming from. The people should know where their money is going and it is going for lawsuits from the water rate increase voted on by the majority of the City Council. The resolution will give the City Manager and the Assistant City Manager/Finance Director the authority to pay warrants where there is a budgeted expense or where there is a City Council-approved contract. They are trying to keep us from looking at the warrants. The resolution eliminates the Warrant Review Committee and requires every City Council member to look at the warrants prior to the City Council meeting. Before only two City Council members were looking at the warrants. This is not fair.

Council Member Espinoza said that he has been pulling the warrants for the City Attorney. His expenses have been close to $1 million for the last six months. Your hard-earned money is going to the City Attorney. Now they want to give all the power to the City Manager and the City Attorney. They will pay vendors for expenses that they will later bring to the City Council for approval. This is being done because some City Council Members are being recalled and they do not care what the people think. The citizens do not have a voice anymore. He does not think it is right. That is his opinion.

Council Member Nateras said that Council Member Espinoza is stopping all vendors from being paid for work that has already been done, not just the City Attorney. What is the purpose for delaying payment to vendors that have done the work? You will have vendors who will not deal with the City because the City does not pay its bills on time. She asked Council Member Espinoza if his towing business towed vehicles for people that did not pay.

Council Member Espinoza commented that the vendors will get paid if City Council meetings are not cancelled. You cancel meetings on purpose so the citizens do not see you or hear you.

Council Member Nateras stated this was not true. She said that the City is not suing anyone. The City is only defending itself against people that are suing Livingston. City Attorney Hobbs said that Council Member Nateras was correct. Council Member Nateras said that the City needed to pay its bills on time.

Mayor Pro-Tem Vierra commented that one week every single check was held and including child support checks from employee wage garnishments. There were some children that did not receive their support checks because the whole batch of checks was held up by Council Member Espinoza and Council Member Aguilar. He said he can see holding a check or two where there are questions, but it does not make sense to hold all the checks. He does not believe it makes sense to go against a child that depends on the monthly check.

Council Member Espinoza stated if you would have had a Council meeting the bills would have been paid. He told Mayor Pro-Tem Vierra that he was not here to hear the comments of the people regarding their water rates.

Mayor Pro-Tem Vierra reminded Council Member Espinoza that he missed two City Council meetings and he did not say a word to anybody.

Vickie Lewis, Assistant City Manager/Finance Director stated that she hated politics. Her only concern is taking care of the community. She said that the payment of warrants should not be used as a political weapon against other City Council Members. If you are going to play political games, find something else. Do not use the community, the City’s vendors, people that need their deposits back or child support garnishments from the District Attorney’s office in your political battles. Either work it out or do not work it out. Either way, do not use the citizens, vendors or anybody else in the political battles. She does not care about sides and not paying warrant is wrong. You can still vote against any warrants that you do not believe in.

Council Member Espinoza said Ms. Lewis was being political right now. Ms. Lewis said she was not being political. She is trying to stop the politics so, that she can get across the fact the there is no place for politics when you owe people money. Council Member Espinoza said again that Ms. Lewis was being political for the other side. Ms. Lewis asked Council Member Espinoza what he meant by his remark. She said again that she doesn’t care about politics, so what did he mean when he said she is being political?

Council Member Espinoza said that Ms. Lewis is trying to make him out to be the “bad guy.” City Council meetings are being cancelled because some City Council Members do not want to listen to the citizens on the water rates.

Mayor Varela stated that we have never cancelled a Council meeting because we did not want to hear from the public.

Vickie Lewis said Council Member Espinoza is not happy about not having City Council meetings. Work it out, find another way, but do not use the warrants for that purpose because it is wrong. People have to be paid for the services they have provided. All she cares about is taking care of the community, the vendors, people who have deposits. She noted paying warrants is operational. State law as outlined in the Government Code says that warrants can be released without prior City Council audit. We have allowed the City Council to audit the warrants in spite of that. We have encouraged it and we still encourage it. Every member of the City Council should be looking at the warrants.

Mayor Varela said we need to move forward. Anyone can pull a warrant, but the bills need to be paid. Vickie Lewis agreed.

Council Member Aguilar thanked Vickie Lewis for her time in discussing with her the subject of delayed payment of warrants. She said that she delayed paying all of the warrants once. Vickie Lewis said that Council Member Espinoza has also pulled all warrants and kept them from being paid. Council Member Aguilar said that Vickie Lewis stated that every City Council Member had the right to pull warrants, but to be careful about what warrants are being pulled. She is learning from Vickie Lewis and understands where she is coming from and that it hurts the whole community when warrants are not paid. Her intention in holding all of the warrants was out of concern about paying the City Attorney for the current litigation with Foster Farms. Those costs add up because of the tough decision and we have to realize why we are in the hole.

Vickie Lewis said all members of the Council should review the warrants and she hoped that Council Member Aguilar would continue to review them.

City Attorney Hobbs stated that it appeared to him that the legal fees are the focal point of this issue. He did not think it was fair to the other vendors that this be the case. He agreed with the Assistant City Manager/Finance Director that this should not be a political issue. He does not think it was fair for it to be political issue. City Attorney Hobbs said the water rate issue has polarized the community and that is unfortunate. He would ask, regardless of what the Council does with this resolution, that the City not pay the legal fees until they are brought to the City Council. He said it is not fair to the other vendors to make them wait for their money. Maybe this will help with the concerns of some of the other City Council Members.

City Manager Warne commented that the procedures outlined in the resolution provide more accountability and oversight than in the past. Instead of only having two Council Members review the warrants or invoices, all five of them will now review them. What the resolution avoids is what has been happening over the last several months. This is the withholding by Council Member Espinoza and Council Member Aguilar payment for every single warrant for no particular reason. This is not right. It has been explained to both these Council Members the impact of not paying warrants in a timely manner. This procedure allows the City to pay small businesses, refund park fees and have child support payments made. He said that 99 percent of all warrants are not controversial. These new procedures are a way to streamline the process. It still provides for the same City Council oversight and still requires a vote from the City Council for all warrants. The City Attorney has agreed voluntarily to have a formal vote by the City Council before his warrants are released. This resolution improves City payment procedures, is a good business practice and does not reduce City Council oversight in the payment of warrants.

Council Member Espinoza said that none of this would have happened if Mayor Pro-Tem Vierra had not missed City Council meetings in November. This would also not be an issue if the City Council had meetings every two weeks. He said that he is being accused of being the “bad guy” because he will not allow the warrants to be released.

Mayor Pro-Tem Vierra stated that Council Member Espinoza is saying that the three of them have to attend 100 percent of meetings in order to have the bills paid, but that Council Member Aguilar and Council Member Espinoza can take a vacation whenever they want. That is not right.

Mayor Varela stated that the City Council needs to relax and move forward. We know the history here and it just keeps coming back over and over. This is not a pretty picture we are giving the community.

Council Member Nateras said she wanted clarity from Vickie Lewis. Could she explain to the citizens of this community that their water rate has not been increased just to pay the attorney fees as Council Member Espinoza has suggested?

Vickie Lewis stated that not all of the legal fees that are being brought to the community’s attention deal with the utility rate litigation. Attorney fees include a wide range of legal issues from different projects and issues in different City departments, including planning and administration. Some of these legal fees are reimbursed to the City by developers or other third parties.

Ms. Lewis commented that what Council Member Espinoza was saying is only partly true. She said Council Member Espinoza had been on the Council long enough to know that attorney fees deal with projects and issues in all City departments that have nothing to do with the utility rate litigation. The utility rates include the cost of providing the service involved in the utilities. Therefore, what Council Member Espinoza said had some truth, but was not totally accurate.

Katherine Schell Rodriguez, P.O. Box 163, said she has been coming to Council meetings for a long time–maybe, not as long as Mike Torres and Warren Urnberg–but definitely longer than some of the current members of the City Council. She stated that even prior to this City Council taking office; the City Council would have some months with one meeting and some months with two meetings. There were even some months when there were no City Council meetings. That was even before some of you were City Council Members. During this time, not once did she hear about people not getting paid on time for lack of a Council meeting. She asked Mayor Pro-Tem Vierra, have you ever heard of an entire warrant register being held because of no City Council meeting. She certainly never had until recently. She said she has read the staff report and has looked at the government code and she could not think of one damn good reason to hold peoples’ money hostage just because there are not two meetings a month. She said some of you here may have accused her of seeing conspiracy theories and flying saucers and men in silver suits, but it sure smacks of some politics to her. Using the people of this community as pawns in a political war game is just plain wrong. Only one meeting a month? Well, we will show you. We will make sure no one gets paid. She said not paying people on time just because there is only one meeting or no meeting is unjust unfair, unconscionable, and flat out immoral. It needs to stop tonight.

Ralph Mull, 1445 First Street, stated that the City needs to pay its bills on time, instead of accruing debt or paying any more fees. We have seen our attorney fees skyrocket because of the lawsuits. Mr. Mull said he was not happy about the situation and doubted if anyone else here is. He said we probably are paying a little bit out of our pocket for those fees and those bills, but we still need to pay bills. Our vendors depend on that money to keep business going. Mr. Mull said a person could loose their job with they are laid off. He repeated that the City needs to pay its bills in a timely manner and needs to have supervision over those bills. Mr. Mull commented to Ms. Nateras that for a moment he actually thought she was going to have her own opinion and she did for a bit. He congratulated her on that. He said she had her own opinion and he would like to see the other members of the City Council step-up to the plate and do that too.

Gurpal Samra stated that Mr. Warne said that this resolution gives more accountability and that any Council Member can pull a warrant. He thought they always had that authority, regardless of who was on the committee.

City Manager Warne commented that any Council Member can pull a warrant. This resolution requires all City Council Members to look at the warrants prior to payment. It also allows the staff to release warrants with City Council ratification at a later date. The City Attorney has agreed that his bills will not be released prior to formal action by the City Council. There is actually more oversight and more accountability with the proposed procedures in the resolution than in the past.

Mr. Samra asked if one Council Member comes to you and says that he/she does not think this warrant should be paid, will it be stopped or paid? City Manager Warne explained that the way the procedure is set up is that it allows staff to pay the bills, but what has been happening is that all the warrants on the warrant register have been held by two City Council members. It allows us to pay the bills if City Council members have reviewed them.

Mr. Samra asked if an individual warrant is brought to you by an individual Council Member for discussion, will it be held and brought to the City Council meeting. City Manager Warne responded that it will be held, but we will ask the Council Member why the warrant is being held. If there is a legitimate reason why the warrant is being held, then we will look into it and hold it.

Mr. Samra asked who would make that decision. City Manager Warne responded that it will be held, but we need to avoid the situation where all warrants are arbitrarily held for payment. Mr. Samra asked if an individual City Council Member requests a warrant not be paid, who makes the decision on payment if the City Council has not met?

Vickie Lewis stated that she could answer that question. If any member of the City Council comes to review the warrants and if they want a warrant held, we have them fill out a form that says this warrant is to be pulled and is to be held until the next City Council meeting. The City Council member signs it and gives it to her. She pulls the warrant and it is held.

Council Member Espinoza said that he pulled a warrant for discussion at the City Council meeting. He later found out that it was magically paid. Vickie Lewis told Council Member Espinoza that the new procedure just outlined was put in place after the incident. There has not been a repeat of this incident with the new procedures. She has become more involved in the oversight of the warrants.

Mayor Varela stated that he and the City Manager were recently in Sacramento. They received a call from Vickie Lewis stating that Council Member Aguilar and Council Member Espinoza wanted all the warrants to be held and not paid. Ms. Lewis asked the City Manager what she should do. City Manager Warne told Ms. Lewis not to release the warrants. Mayor Varela stated he was a witness to the City Manager’s decision because he was standing right next to him.

Council Member Espinoza said that a special meeting can be held to approve warrants. It is not a big deal. A special meeting can be held on any day at any time.

Gurpal Samra stated that in March, he had submitted a public records request form asking for the total amount of money spent on lawsuits. He said he has not heard anything. He added the his request was made on March 1 and it was dated by the City Clerk saying it was received and they would let him know. Mr. Samra stated he knows this staff. He knows you and knows everybody. He said this staff is incapable at this level and incompetent to not give the people the information they have requested.

Council Member Espinoza asked the City Attorney if the Council could call a special meeting to approve warrants.

City Attorney Hobbs said he will work with the City Clerk to ensure that Mr. Samra received the requested information. City Attorney Hobbs said he did not know why Mr. Samra had not received this information, but he will ensure that he does receive it. Mr. Samra noted that he just wanted Mr. Hobbs to know that. Mr. Hobbs said he had no reason to think that there was any political motivation.

Julio Valadez, 1158 Sixth Street, stated he was not going to attend the City Council meeting tonight, but it was very hard to hear the meeting. He said that he had the volume on his television turned up all the way. He said that Mr. Vierra’s microphone was off or something was wrong. He repeated that he was not going to come to the meeting until he heard the Mayor say that you are not the voice of the people. He asked if they are not the voice of the people, who is the voice of the people?

Mayor Varela explained that he was talking about the context of this voting body. He has never said that the vote of the people does not matter. Mayor Varela stated that he respects everyone, but they do not respect him. He said that he has never met Mr. Valadez. Mr. Valadez replied well you shook my hand and thanked me for being a coach. Mayor Varela said he has met many people in the last two years and he is sorry that he did not remember Mr. Valadez. The respect has to go both ways

City Attorney Hobbs asked the Mayor and Mr. Valadez if they could keep their discussion on the warrants topic.

Mayor Varela stated that the whole process is back and forth. He said we need to get down to the root of it. The root of it is that we have to behave in a civil and diplomatic way. Mr. Valadez said that he heard a comment from the Mayor that said that you were not the voice of the people. Mayor Varela said that he was referring to people on this side of the dais. He was glad that he came and was glad to hear that this is not what Mayor Varela meant.

Mr. Valadez commented that Vickie Lewis stated that this issue is not political. He guessed she worked for the City. He said that it is political because this is a City Council meeting. There is no way not to make it political. Mr. Valadez said it is really hard to hear the meeting from home and perhaps we should look at the system. He asked what the warrant for attorney fees was for one month. Is that the reason we are canceling the July 4 festival? What does it cost for the fireworks? Mayor Varela said that we need to stay on topic.

Warren Urnberg, 1331 Eighth Street, said he was under the impression when a warrant was pulled that all the rest of the warrants got paid. He does not understand why all the warrants were not being paid.

Council Member Aguilar said the City Manager was constantly saying that all warrants have been pulled. That is not true. Only one or two warrants were pulled. Council Member Aguilar said that Vickie Lewis has the yellow sheets that we fill out. She said that she pulled all of the warrants one time to keep them from being paid. Council Member Espinoza said that all warrants were pulled two times. Council Member Aguilar said we did not have a meeting and it took awhile for us to pay them. She said that after speaking with Vickie Lewis she understood what the impact was, and she will be careful when she is doing this in the future.

Mr. Urnberg asked that when a warrant is pulled, are the rest of the checks mailed? The rest of them get paid. Is this correct? Council Member Espinoza said Mr. Urnberg was correct.

Vickie Lewis said that was not correct. She stated that the non-payment of all warrants on the warrant register did not arise from the request to pull one or two checks by Council Member Aguilar and Council Member Espinoza. The request was made by these City Council members to hold all warrants. That is why all warrants were not paid. Council Member Aguilar made one request to hold all warrants. But the following request to hold all warrants was made by Council Member Espinoza. There have been two requests to hold all warrants.

Council Member Espinoza stated that the City Council could have held a special meeting to approve the warrants if the other members of the other City Council really wanted to pay all of the warrants.

Warren Urnberg said that Vickie Lewis showed him the two written requests to from Council Member Espinoza and Council Member Aguilar to hold all warrants. He did not understand why someone would pull all warrants and hold up payment to everybody. He thought that when a warrant was held, everyone else got paid.

Robert Kuyper, 1811 Park Street, stated he was concerned with several issues. He said we do argue in politics. As many of you know he does use hearing aids and the sound in here is so terrible and part of the reason is that so many people in the audience are clapping, murmuring, and laughing. He is trying to listen to the City Council. Mr. Kuyper told Council Member Espinoza that he could understand very little of what he was saying. He was not sure why, but maybe he was not close enough to the microphone.

Mr. Kuyper said we are going to have a recall election. He suggested that rather than clapping and disrupting the City Council meeting with pulling warrants, the people should get out and start going door to door. You know how to campaign. Both of you have been at my door and have talked with me about City issues when you were running for office. Someone is going to run against the City Council members that are being recalled. That is politics. Do not pull warrants just because of the recall election. When the recall election is held we will see who is going to run against the two of you. The people are going to make a decision and that will be the politics. It may change the City Council and it may not, but that is the way politics work. Let’s not disrupt our City Council meeting. These people are on TV and the audience should be respectful and should be quiet. We are not the ones here debating the issues. He wants to hear what the City Council has to say. He does not want to hear the applause and the murmuring. It interferes with his hearing aide and it must interfere with the people at home trying to listen to the TV. People should start going door to door, putting up signs, writing letters to the editor, and doing the things that we normally do during a campaign. But please do not disrupt the City Council meeting. Thank you.

Ana Maria Galvan, no address given, (in Spanish) stated, “You know me for quite some time now. You, Mr. Varela and Mr. Richard, you ask for respect from us when you are talking. A while ago, you were talking about the water rate increase and what we think about it and you were laughing. Maybe I am ignorant; I am not as educated as you are, but you ask for respect and yet you fight here like in a boxing match. I sat in here and I did not laugh at anybody when you were asking what we thought about the increase and we requested that you not increase the water rates so much. We are paying a lot for water. The money you are collecting from us is being used to pay for a new police chief who used to make less money where he lived before than what he is now making here. He is making $10,000 more here than where he lived before. Escalon is bigger than Livingston. You shouldn’t charge us more for our water use so that you can pay the new chief of police $10,000 more. I understand that the garbage contract has not yet expired, yet you also increased the garbage rates. Where is that money going? Your City employees are lazy. When it was raining, they were standing around or sitting in their trucks drinking coffee. Your employees are lazy. You now have a new chief of police and you are paying him more money. Where is that money coming from if you say that if you don’t increase our water rates, you will not have money to make improvements in the county and city? Is the City Manager going to pay that extra $10,000 that was offered to the new chief of police? A chief of police is not going to be smarter if you pay him more. I don’t think that is right. I am currently paying $94.50 for less than 5,000 gallons of water. I have a new energy efficient washer and I don’t waste any water and my grandchildren don’t waste any water either.”

City Attorney Hobbs said that was the end of Ms. Galvan’s three minutes.

Ana Maria Galvan (in Spanish) stated, “no, no, don’t give me only three minutes because you gave Mrs. Vickie more than one hour. You give her more time only because she works for the City and I don’t.”

Mayor Varela told Ms. Galvan, (in Spanish) “Ma’am, we are discussing a matter that is not relevant to what you are saying.”

Ana Maria Galvan (in Spanish) stated, “I know it is not relevant, but I am not leaving. I have to say what I want to say. I have freedom of speech. I am not offending anybody. I know you are discussing another matter, but you first spoke about the water rates and you two were both laughing. You ask us to be prudent.”

Mayor Varela thanked Ms. Galvan.

Gurpal Samra asked for a translation. Mayor Varela asked Council Member Espinoza to translate the comments. The Mayor said, “I am not going to translate that. If you want to translate it, go for it.”


Mayor Varela said he was closing the public comment period at 9:52 p.m.

Motion: M/S Aguilar/Espinoza to not adopt a Resolution Providing for Warrant Payment Procedures. The motion failed to carry by a vote of 2-3 with Mayor Varela, Mayor Pro-Tem Vierra and Council Member Nateras voting no.

Motion: M/S Vierra/Nateras to adopt Resolution No. 2010-15, a Resolution of the City Council of the City of Livingston Providing for Warrant Payment 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

13. Resolution No. 2010-16, A Resolution of the City Council of the City of Livingston Authorizing the City Manager to Enter Into a Temporary Lease with Jim Brisco Enterprises, Inc.

14. Resolution No. 2010-17, Setting Aside Resolution 2008-55 Certifying the Environmental Impact Report Prepared for the 2025 General Plan Update and Approving the General Plan Update.

15. Receive Signature Verification Certificates for Recall Petitions.

Council Member Aguilar requested public comments on this item.

Theresa Land, 995 Hilltop Avenue, stated that in the April 9 Merced Sun-Star she read that City Manager Richard Warne said the City is trying to cut costs by consolidating agenda items, and going to one City Council meeting a month rather than two. She said if the City wants to save money, she has a suggestion. She thought that Mayor Varela and Council Member Nateras should resign instead of forcing the City to pay for a special election.

Ms. Land said she believed that the signatures that were collected to recall Mayor Varela and Council Member Nateras were more than the amount of votes that got them into office in the first place. She believed the people have spoken. She asked that Mr. Varela and Ms. Nateras do the right thing for our City and people and step down. Ms. Land stated, “ Mr. Mayor you said you thought it would never be this bad. It can be over as soon as you step down. Our voice does count and we have proven that and it will go to a vote now.” She also wanted to know who paid for the trip to Washington and how much did it cost?

Mayor Varela replied that he could call Ms. Land later or the next day regarding this matter.

Mario Mendoza, no address given, stated you are talking about money and that the City is behind and in debt. He said it would have been pretty easy if you just would listen to the public, to the community, take our opinion or hear our voices. But instead you listened to City Manager Warne and Council Member Vierra. You did not check his background. Mr. Vierra makes him upset. He wondered if the City Council could vote on this tonight.

City Attorney Hobbs said no. That item must be on the agenda and it would be a violation of the Brown Act to take that action tonight. Mr. Mendoza said that there are Brown Act violations all the time.

Mr. Mendoza asked is it a violation of the Brown Act all the time at meetings.

Julio Valadez, 1158 Sixth Street, said he did not vote for the recall because he did not want to, but the same number of people that signed petitions for Mr. Vierra were the same for Mr. Varela so what happened there?

Ralph Mull, 1445 First Street, stated as far as the recall goes, the people have a voice and the voice is speaking in the recall. He does not like the recall, but the City has had them before. In these situations who knows what goes on in this place. He was confused and he has been here forever. Mr. Mull commented that Mr. Vierra knows better. He and the Mayor grew up here and have lived here all of their lives. He knows this because we went to school together. He realizes that the job up there is not an easy one. You get lots of pressure. You get it from all sides, but what he sees is that no one has their own opinion. Mr. Mull said that for once he would like to see those two vote against each other and you three vote against each other. That maybe part of the reason why we are having this recall because you aren’t voicing your own opinion. Instead, you just follow like a herd of cattle. He said you do that all the time. Now if we were lemmings we would all fall off the cliff and die. He does not agree with all that has been done. Maybe you are making progress for the good of the City. If it is good for the City and the people are speaking and this is what they want, let them have it. There is more than one way to “skin a cat.” You need to start talking to citizens, let them know what is really going on. Maybe when the vote comes around you might still be here. It is what it is and he feels bad that you are getting recalled and they are after you. You all know better. You have your own opinion. You choose to follow whoever you are following. Mr. Mull said he was congratulating Ms. Nateras because she actually had her own opinion for a moment and that is what he wants to see out of our Council Members. The voters voted you in to do a job. We have an opinion and we have the right. This is why there is a recall. He does not like it, but it is happening. Go talk to the people. Only you can change their minds.

Katherine Shell Rodriguez, P.O. Box 163, commented that she has been City Council watching and writing about it for a considerable amount of time. The 3-2 voting split and bickering is nothing new. They only thing different is the 3-2 split is on the other side. There is an old saying, “be careful of what you ask for, you just might get it.” She said it is no secret that the housing bubble has burst and California is in a recession. Once again the State is borrowing thousands upon multiple thousands of dollars from Livingston’s General Fund. Now the State says that they will give it back in 2013, but that is not going to help us now. Now we have to deal with the triple whammy of the recession, the State borrowing from us and the consequences of the General Fund having shored up the water, wastewater and sanitation fund for years–since 1995. Now how does this relate to a recall? No matter who wins the recall, the consequences this utility deficit spending that has been going on since 1995 is as much the responsibility if not more of the responsibility of prior City Councils, since the current City Council was handed this problem. If anyone really owns the problem about the big fat whopping deficit it is the people who were on the Council prior to the last election cycle.

Ms. Schell Rodriguez said she has looked at the independent auditors’ reports and they prove what she is saying. No matter who wins the recall the consequences of utility deficit spending and State raids on our General Fund will not go away. Whoever wins will have to deal with it. And then there is Well #15. Because of environmental regulations by the State, Well #15 will have to have a new well filtration system. She was at the meeting when the Council voted 4-1 to proceed with filtration. The way she understands it is because the City was in the process of raising the rates at that time the State held off on dropping the hammer on enforcement and fines. Ms. Shell Rodriguez said think about it for a second. The State might not be so forgiving if rates here get rolled back whether it be by the court or the City Council. And whoever is on the Council at that time is going to have to deal with it, and if for some reason the general fund is forced to shore up the enterprise funds again, whoever is on the City Council after the next two election cycles will be faced with a budget in crisis. The State breathing down their necks to get the Well #15 filtration project on line and no money in the enterprise funds to do it. She added be careful for what you ask because you just might get it.

Gurpal Samra, 1034 J Street, stated that we want Mayor Varela and Council Member Nateras to know that we feel bad for you. Your constituents warned you over and over again. You can probably relocate the well to save money. And no criticism to you Mr. Warne, but Mr. Samra does not think anyone can recall a time when the City has had so much in legal fees. These things add to our water bill. He said that Mayor Varela and Council Member Nateras should not take the recall personally. If they think it will cost too much, they have other options. They can forego the election and take the money that would have been spent on the recall election and use it to pay for the July 4 celebration.

Council Member Aguilar stated (in Spanish), “This message is for the residents of Livingston that hopefully are watching this meeting tonight. We don’t totally speak Spanish. We hope that you understand English. This Agenda Item #15 is saying that the signatures have already been verified for the removal of Mayor Daniel Varela and City Council Member Martha Nateras from their Council seats. Frank Vierra did not have sufficient votes, but based on Mrs. Land, one of the residents that proposed the removal of these people, she assures us that they will proceed with Frank Vierra in the near future. The only thing I want to tell you is that there were many comments made. I am not going to go over all of them, but I just want to tell you that you do have a voice. You demonstrated it. Don’t give up. Like the phrase used when they were campaigning for the presidency, Si se puede – Yes we can, and you have done it. Don’t let people tell you that it is wrong and that the City is going to spend a lot of money. The City is already spending and is going to continue spending with all the debts we have and the cost of our City Attorney and the lawsuits we have from Foster Farms and others that will come up for sure. So I just want to tell you to please have faith that what you know is wrong, if you feel that it is wrong, for sure it is. If it was me, the advice given to the two City Council Members Martha Nateras and Mayor Daniel Varela, they were told that if they want to save money for the City, as they are constantly saying that we are going to spend here and there, then step down, you yourselves can say, ok, I made a mistake, or to campaign and when they go campaigning that they want to remain in their seat that they tell the truth and be truly transparent which is a word that they really like to use. They were not transparent and that is why they are being asked to resign. That is one thing when someone is in this position should know that when you make a decision, you have to ask yourself, how will it affect the majority of the people? And that is the community in general, not just your favorite group of people that put you in office, but the community in general. In regards to the water issue, which is one of the biggest reasons why these members are being asked to resign, if they have so much pride, if they truly think they were correct, then they can continue on, but take into consideration that people are not dumb and make sure to get informed and do not make it seem that it is something wrong. It’s the first part of the Constitution, but you have that right to speak, okay, freedom of speech, of expression. So in my part, if I was in this situation, truly if I felt that, okay, I have to think things over and I do have an individual voice, I would apologize and I would do my part to keep my position, but due to the pride that some people have, sometimes they prefer to continue on with the battle. Well, the people have it and let’s see who wins. Thank you.”

Council Member Espinoza (in Spanish) stated, “Like Council Member Aguilar just said, Mayor Varela and Council Member Martha Nateras were asked to please resign to their seat. If they resign to their seat, we are going to avoid spending money in the election coming up in two to three months and that money could be used to pay for our 4th of July event. Otherwise, there will not be fireworks or anything else because there is no money. It has now been cancelled, but by avoiding the election that can be avoided by Mayor Varela and Council Member Martha Nateras, there could be money to celebrate. That’s for the families, for the whole community, if they truly care about their community. The people already decided. They got the signatures and they have made a decision, but they will finish deciding with their vote very soon. If they already got the signatures, the people already signed for them to be taken out. Please avoid spending that money and please save it for the community. The community is asking them to resign to their seat so that we can move on and not keep on fighting up here. We have tried to avoid the problems, but, in my opinion, the community is asking you. The excessive charges on the water bill, it’s too much. In the newspapers, it says 100%, but the bill goes up from $60 to $200 or $300+. They are lying because that is in excess of 100%. It’s too much. Thank you.”

Mayor Varela (in Spanish) stated, “On my behalf, when we entered into the position of leadership of the community, we encountered some situations, some costly projects that we knew about and even during the campaign, they used that information to promote their campaign. Everything we have done, we have done it with the plan that everyone was aware of what was going on. We have done the most essential for the future of our community – for the future in the next 15-20 years. We have not promoted ourselves in a manner to reach the favoritism of the community, to say, “Look, we voted to help you.” The purpose of our vote is to help the City completely and for the future. That is our purpose. The cost for water, sewer, and garbage had to be increased because there are needs in the community, such as you have, and that is one area that prompted me more than anything. In the schools, we have six schools in our community. Some do not like the water because it smells bad. They don’t like the color because it looks brown, but that is the water that we provide to the children, which are more than 3,000 children in our community that drink that water daily. The teachers are not giving them clean bottled water. We want to promote the safety of our future as a city. That is my purpose. To increase the water? We knew it had to be increased. We knew it. We promoted it in the best way possible so that it was not as painful. We even had a 15% reduction, but that information was utilized to excite the City and create more cost because we tried to do something good for the City. It’s easy to be here and say, You shouldn’t pay all that money, but how can we expect our City to have the benefits that we gave you if the funds are cut, if the system that has been put in place gets cut? What you participate in towards the future of our city. When you pay for electricity, that money goes away. You don’t get a benefit from the electric or the heater or the air conditioner, but when you invest in your City payment, you are investing it into the future of your city – the future of your city, of our city! We have not gained any favors by making this decision. We have gained criticism and that is fine, that is why we are in this position, but you have to understand that the purpose of this increase is for our city, for the future of your children, of your grandchildren, that’s the purpose of this vote.”

Council Member Nateras (in Spanish) stated, “What the Mayor just said is true. The numbers don’t lie. Every eight days, the City Manager gives us a report of the costs. We are in the negative in the water fund. When we were campaigning for this position, many of you asked us to please fix the water problem. How are we going to fix the water problem if we are in a deficit? We have a well, Well #15, that by law has to be repaired and it is going to cost us $1 Million. As you know, the Livingston water, like the Mayor said, is dirty, even if they say it is good to drink, you cannot tell me that after some time, it is not going to cause you damage to drink dirty, stinky, discolored water. We want our city to prosper. We cannot continue with the same rates of 1995. It was a very difficult decision. It was not easy. We all here knew that we had to do this. What hurts me the most is that various persons that went to knock on doors spoke badly about us. We are affected too. We also have to pay the water bill with those rates. It is not free for us, but what hurts me the most is that many of you were tricked with the lies of the people that were knocking on doors. If any of you have any questions or regret signing the petition because you were tricked, please call Mayor Varela and me.”

Council Member Nateras commented the numbers don’t lie. We are in the negative. We cannot continue to run this community with numbers from 1995. She thinks for herself. Her responsibility is taking care of this community. She said if we had not increased the water rates, which we all three already knew had to be done, when we ran for office, we would eventually lose our police department, fire department, and recreation department. She stated that for those of you that feel like she has let you down she is sorry that you feel that way. She was looking out for the best interest of our community. Her actions should speak for themselves. She cares for this community and has proven it by all the things that she has been involved with and she doesn’t get anything out of it.

Council Member Espinoza asked a member of the audience if he had a question. City Attorney Hobbs told Council Member Espinoza that the public comment portion of this agenda item has been closed. The City Council can reopen it if it so chooses.

Council Member Espinoza stated he had the right to ask questions. Mayor Varela (in Spanish) asked, “What is your comment sir?”

Enrique Vasquez, 1255 Ninth Street (in Spanish) stated, “I have a question here for the lady. I respect everyone. I was one of those people that were knocking on doors and I didn’t lie to anybody about what you were doing. The water is too much. Now, another thing, the schools have wells. They don’t use the City water.

Mr. Vasquez (in Spanish) stated, “Another thing, Foster Farms sued the City because you increased the water too much. If there would not be that money, if the City lost. If you had increased it only a little, we would not be having these problems right now.”

Mr. Vasquez (in Spanish) stated, “So all you in charge have to discuss this and resolve the problem so the people can be satisfied.”

Council Member Nateras (in Spanish) asked, “Sir, can you please identify yourself?” Mr. Vasquez (in Spanish) said Enrique Vasquez, 1255 Ninth Street.


The Council took a short break at 10:25 p.m. The City Council meeting resumed at 10:34 p.m. The Mayor asked everyone to be polite.

Julio Valadez, 1158 Sixth Street, stated to Ms. Nateras, that she was saying in Spanish that people lied to get votes and to recall her and Mayor Varela. You go on to say that if you had not voted the city would have lost the fire department, the police department and the recreation department. He asked if that is a true statement or was she lying?

Council Member Nateras said she would ask the City Manager and the City Attorney, plus the numbers that we receive weekly don’t lie. City Manager Warne said he had been advised by the City Attorney not to comment on pending litigation. Julio Valadez said that he did not believe that the City would lose three departments because we did not vote on the rate increases.

Julio Valadez, 1158 Sixth Street, (in Spanish) stated, “What I was saying, for those of you who don’t understand English, Mrs. Nateras said that somebody made up lies so people would vote to recall her and Mayor Varela and to call her or him to change their vote because they were tricked. That I am aware of, nobody made up lies, but I was not there, so I cannot clear that up, but what I do know is that Mrs. Nateras just now said that if they had not voted the way they did, we would have lost the Police Department, the Fire Department, and the Recreation Department, and that for me is a lie because I don’t think that we would lose all three departments. Maybe Recreation, but I know that many, like me, would volunteer wherever necessary to be there for the children. I have volunteered to coach the children and I didn’t charge the City any money and I know that many others would do the same because if that type of help is needed, I know that the community would come forward. I just wanted to make that clear because if she said that somebody lied, she is also lying by saying that three City departments were going to close. The City Attorney told the Mayor and the City Manager not to respond to my questions about whether or not it was true that all three departments would close and they could not respond, as usual.”

Council Member Nateras (in Spanish) stated, “ I do want to respond because I don’t want you to think I am lying. Little by little… where did you think the money was going to come from after being in the negative in the water account? Little by little we were going to have to reduce the Recreation, Police, and Fire Departments, not necessarily in that specific order, but it is going to happen. Now, in reference to the lying to people in order to get signatures, that is true because some of my co-workers told me that Mr. Samra approached them and told them to please sign a petition so the City would reduce the water rates and the property taxes, and I have proof of that.”

Julio Valadez (in Spanish) stated, “Why don’t you bring them in to make it clear to the public?” Council Member Nateras said, “No, I’m saying what I was told.”

Gurpal Samra asked for a translation. He said that his name was mentioned. Council Member Espinoza told Mr. Samra that Council Member Nateras said that it was her friends told that her that he lied to him to get signatures. Gurpal Samra said that these people were her friends. Were her friends going to defend him?

Mayor Varela said that it is a simple fact that you were doing that. Let us move forward. We are almost through the consent calendar.

16. Denial of Claim for Damages from Janice Taber.

17. Approval of Minutes of Meeting Held on January 5, 2010.

18. Approval of Minutes of Meeting Held on February 2, 2010.

19. Approval of Warrant Register Dated March 11, 2010.

20. Approval of Warrant Register Dated April 1, 2010.

Council Member Espinoza said he pulled the attorney fees because he did not agree with them. It is Warrant No. 70101 for $92,038.00.

Motion: M/S Espinoza/Aguilar not to pay Warrant No. 70101. The motion failed by a vote of 2-3, with Mayor Varela, Mayor Pro-Tem Vierra and Council Member Nateras voting no.

Mayor Pro-Tem Vierra said the legal bill is for $92,808.38 and included in that is a lot more than just water. It has Wal-Mart, Blueberry Crossing, Livingston Family Apartments, Country Lane, Livingston High School expansion and the list goes on and on. It also has the planning commission and calls from City Council members to the City Attorney. The list is 1 ½ typed pages. The attorney fees are not just for water litigation.

Motion: M/S Vierra/Varela to approve entire warrant register, including Warrant No. 70101. The motion carried 3-2, with Council Members Aguilar and Espinoza voting no.

21. Approval of Warrant Register Dated April 14, 2010.


22. Consider Adoption of an Urgency Ordinance Establishing a Moratorium on Approval Medical Marijuana Dispensaries.

The agenda item was presented by Chief of Police Douglas Dunford. He said that this was an urgency ordinance establishing a 45-day moratorium on the approval of medical marijuana dispensaries. Chief Douglas Dunford gave the following report:

In 1996, California voters approved Proposition 215, the Compassionate Use Act of 1996 (“the Act”), codified as Health and Safety Code section 11362.5, et seq. The intent of Proposition 215 was to enable persons who are in need of marijuana for medical reasons to obtain and use it under limited, specified circumstances. In 2003, the Legislature passed SB 420, the Medical Marijuana Program Act (“MMPA”), codified as Health and Safety Code section 11362.7 et seq., which authorizes cities and counties to adopt and enforce rules and regulations consistent with the MMPA and the Act.

Under federal law, the United States Controlled Substances Act classifies marijuana as a Schedule 1 drug, meaning it has no accepted medical use. Indeed, the Controlled Substances Act was enforced by the Justice Department against medical marijuana users, growers, etc. until the beginning of 2009. In February 2009, however, the United States Attorney General announced that the Justice Department would no longer raid medical marijuana growers and dispensaries. This led to rapid increase in the number of medical marijuana dispensaries operated throughout California.

California cities and counties have not taken a uniform position regarding medical marijuana dispensaries. Some jurisdictions have allowed them to operate under various degrees of restrictions. Other cities and counties have either prohibited the operation of dispensaries or have heavily regulated them. The regulations and operating conditions imposed by local jurisdictions have varied widely; there is no consistent standard. Cities that have permitted the establishment of medical marijuana dispensaries have witnessed an increase in crime, such as burglaries, robberies and sales of illegal drugs in the areas immediately surrounding such dispensaries.

The City’s Municipal Code currently regulates medical marijuana dispensaries under section 5-5-10. These regulations, however, were adopted prior to the Justice Department’s adoption of its permissive policy towards medical marijuana dispensaries, when the idea of someone opening a dispensary within the City was merely a hypothetical proposition. Recently, there has been an inquiry from a person interested in opening a dispensary in the City. The individual has sought to engage the City in a dialogue regarding the process for opening a medical marijuana dispensary. However, upon being faced with the real prospect of someone wanting to open a dispensary within the City’s boundaries, City staff has concluded that its current ordinance may be inadequate to address the negative secondary effects of medical marijuana dispensaries. Thus, the City needs a moratorium on the establishment of medical marijuana dispensaries so it may study and determine whether its current ordinance will effectively protect City residents from the negative secondary effects of medical marijuana dispensaries.

Section 65858 of the California Government Code allows adoption of an urgency ordinance if needed for the immediate protection of the public health, safety or welfare. The urgency ordinance must be adopted by 4/5 vote of the City Council and will take effect immediately upon adoption. Adoption of this urgency ordinance will give the City time to study and address whether the City’s current regulations are adequate to protect public health, safety and welfare of City residents from the negative effects of medical marijuana dispensaries.

Continued cuts to public safety will lessen ability to deal with impacts and secondary impacts of drug decriminalization and the resultant increase in crime and narco-trafficking. It’s important to understand that neither proposal has any tools in place to deal with the inevitable increase in criminal activity that will accompany legalization. Right now we have serious public safety and social problems caused by abuse of alcohol and abuse of pharmaceuticals.

Although proponents have argued that legalization will result in a revenue increase to the state, there is nothing to support that assertion. In fact, a recent RAND Corporation study of a bill that was identical to Assembly Bill 2254 concluded that potential revenue benefits to the state were illusory. More important, that same study suggested that the actual costs to the state from legalization would far exceed any speculative revenue benefit.

The Deputy Director of the Office of Narcotics and Drug Control Policy under President Bush recently testified in Sacramento that studies have proven that marijuana does impair the development of the teenage brain. Additionally, over 80% of youth being treated for substance abuse are addicted to marijuana.

This is not the “dope” that Baby Boomers smoked in the 80’s. The THC content is five times that of the past and has been clinically proven to be addictive. Smoking marijuana has more carcinogens and negative health impacts than smoking tobacco.

From 1978 through 1990, Alaskan law permitted adults to possess small amounts of marijuana – and use among children was measured at 51%. This was one of the reasons that Alaskan voters passed a ballot measure in 1990 that repealed Alaska’s failed experiment.

Will legalization reduce the organized criminal activity associated with marijuana distribution? The available evidence suggests that it will not. The experience in Amsterdam provides an important canary in the coal mine: Since legalizing marijuana cafes in 1988, Amsterdam has gone from having three identified organized crime organizations to 93 today. That is one of the reasons that the Dutch government, in December 2008, has now embarked on a program to close marijuana cafes: in order to drive out organized crime.

Additionally, as has been seen in the dangerous secondary impacts of marijuana dispensaries, increased drug dealing and trafficking will bring about more dangerous means of protecting the increased profits and activities.

Another crime that we can expect to see exponentially increase is drugged driving. Even without marijuana legalization, this is a serious problem – a 2004 study of emergency room admissions from motor vehicle crashes revealed that more than half of the drivers admitted to a level-1 trauma center tested positive for drugs other than alcohol.

Therefore, staff is recommending Council adopt an urgency ordinance for the purpose of establishing a 45-day moratorium on the establishment of medical marijuana dispensaries to allow time to study whether the City’s current regulations are adequate to deter the unwanted negative secondary effects of medical marijuana dispensaries.

Mayor Varela thanked the Police Chief for his report. He opened the meeting for public comment on this agenda item.

Mike Sperry, no address given, said he did not realize that the Chief of Police was going to speak. He felt like he just got shafted. Mr. Sperry said that the Mayor spoke about letting people know about the kindness of the City of Livingston. He said he is not K. Hovnanian Homes, and he is not Horisons Unlimited Health Care. They are not here. Who is here Mr. Vierra? Mike Sperry, President and the guy that goes to jail if this thing goes wrong. Mr. Sperry said he got legal representation, but did not bring him because he didn’t think he needed him.

Mr. Sperry said he thought that we were going to be a little bit compassionate. As of March 4, 2010, Livingston has 34 active liquor licenses including his license. His business is in the County, but he is in Livingston. There are over 1000 operating medical marijuana dispensaries in Los Angeles. They are going to get shut down slowly, but surely because a lot of them are not doing the right thing. They are not shutting them all down. He does not see how the City can do a moratorium. He said that he distributed a 24-page document on medical marijuana dispensaries the last time he was at a City Council meeting. He has also requested meetings one-on-one and two-on-two.

DUI is driving under the influence. He said that he has a business that contributes to DUIs. In talking to senior law enforcement officers in this town and Merced County Sheriff’s Department, he believes the number of alcohol and drug DUIs is about 50 percent alcohol and 50 percent drugs. How much is marijuana? One percent or less. Mr. Sperry said the Police Chief was citing a national average and a state average. He is not citing what is coming out of this town. He does not care what everybody says. He cares what we say here because he is from here and plans on dying here. He would not come to the City Council if he did not think he could pull it off. He asked why not now? People are waiting for the City Council to get off the pot.

Julio Valadez, 1158 Sixth Street, commented the Police Chief made a good presentation. He thought it was unfair that Mike Sperry was only allowed three minutes to speak and the Police Chief got 10 minutes to speak. Mr. Valadez said he is all for new businesses as long as they are legal. He would like to see where this issue was talked about prior to the meeting.

Mayor Varela stated that if the City Council talked about this before the City Council meeting, it would be a violation of the Brown Act. Mr. Valadez asked how you are going to get it done if you do not talk about it. Mayor Varela said the City Council talks about it in the open City Council meeting.

Mr. Valadez said you talk about other things outside of the meetings. Mayor Varela responded that the City Council does not talk about things outside the public meetings that are coming before the City Council. This would be a violation of the Brown Act. Mayor Varela told Mr. Valadez that he was accusing him of lying and he is not lying.

Mr. Valadez said Mayor Varela said to be respectful. He asked Mayor Varela if he thought it was respectful for the City Council to take a break earlier in the meeting. Mayor Varela explained to Mr. Valadez that the meetings must be orderly and told Mr. Valdez that he was not being orderly.

Mr. Valadez said he was only saying to give Mike Sperry a chance. He is all for new business. He said the Police Chief gave a very good presentation and he had a lot of time to talk about it. He asked when Mike Sperry can give a presentation that is long enough for him to actually show what he is talking about. How can he ask for a specified time?

Council Member Espinoza asked if Mr. Sperry had a location for his business and what would be the zoning district for his business.

Community Development Director Kenney explained that Mr. Sperry had met with her and the business would require a Conditional Use Permit (CUP) in the C-3, Highway Commercial Zoning District.

Mike Sperry said, when he spoke to Acting Police Chief Sharon Silva, she told him that she would prefer the business to be on the beaten path. He promised that there would be an armed guard at the front door. The guard would give the okay to let people in the dispensary. A person would have to have an identification card to buy the marijuana and could only purchase what the doctor recommended for the person. Many dispensaries are going way overboard. He is not going to leave himself open for that. This is why he wanted to speak with you in a quiet area, but now we are here.

Council Member Espinoza asked if there are any marijuana dispensaries in Merced County?

Mr. Sperry said the closest one is in Modesto. He commented on an individual that did not follow the law and was selling marijuana out of his garage. The Drug Enforcement Administration (DEA) shut him down two times. Today, this individual is sitting in a Federal prison and his partner is serving a 22-year sentence. Mr. Sperry stated that this is the issue here. If he “screws up” and when the Police Chief does not feel something is right, the Police Chief can pick up the phone and have him arrested. He is then done because the Feds have a 100 percent conviction rate.

Mr. Sperry said he is not a well educated man, but he does have common sense.

He does not want to spend 21-22 years in prison. He has lawyers and a bookkeeper from hell that will keep him out of jail. He will make sure everything is transparent. He does not want to grow the marijuana. He will bring in the product each day. There will be a 1300 pound fire-rated gun safe to hold and secure the product. Mr. Sperry wanted to have live cameras on his business premises and wanted a dedicated DSL line for vehicle surveillance. He said if you walk into the police department, there are big cameras in there. He hoped he is on one of those cameras. Mr. Sperry stated his business will be conducted from 10:00 a.m. to 4:00 p.m. because he wanted to go home at night. There will be no late night runs.

Council Member Espinoza asked if it was going to take four out of the five members of the City Council to approve his business. City Attorney Hobbs said that this agenda item is not about a specific site or a specific use. This is about whether or not the City Council wants to impose a moratorium tonight, and that would require a 4/5 vote of the City Council.

Mike Sperry said he walked in to the City on December 7. His business application has been before the City for sometime. He felt that we have wasted 50 days. Council Member Espinoza commented that we welcome every new business into town, but this is a hard decision and Mr. Sperry knows it.

Mr. Sperry stated that there is no quicker way to put Livingston on the map than to open a medical marijuana dispensary. Bakersfield was the first Central Valley city to allow a medical marijuana dispensary. Stockton has just allowed one to be opened and Sacramento has a dispensary. He said you will have a new business in town. People never really had a reason to come Livingston and this might be the reason. When they get here, they might purchase gas or pizza. Mr. Sperry said both he and the City would be generating revenue. He said San Jose has imposed an additional 1% marijuana tax on top of the standard sales tax. This money goes to whatever the City wants to use it for. He said if other cities are doing it, why can’t we? The Modesto medical marijuana dispensary paid $300,000 in taxes during the first year of operation. How much are we short on our water bill?

Chief Dunford stated Mr. Sperry brought up an important point. A medical marijuana dispensary will put Livingston on the map, but not in a positive way. He has met privately with Mr. Sperry and they both have agreed to disagree on this issue. Chief Dunford said Mr. Sperry is an entrepreneur and he looks at him in this way. He stated where else can you make the most amount of money, in some place where no one else has it? Everyone will be flocking to Livingston because the closest medical marijuana dispensaries are in the Bay area, Bakersfield and Sacramento. You are going to have a large number of people coming to Livingston to purchase marijuana. He does not know if that is the type of clientele we want visiting this City, or having a City being known as the marijuana capital of California. Chief Dunford said Modesto did make some money from taxing medical marijuana, but spent a lot of money trying to solve problems related to the marijuana dispensaries in the City. He also said Modesto has been #1 in the nation for auto thefts for four years. Chief Dunford said that another concern are the marijuana cards. All you have to tell your doctor is that marijuana helps you, and they will give you a card. Marijuana is not a regulated drug.

Chief Dunford stated that the majority of people who buy marijuana are under the age of 40. People say that they are buying the marijuana because it helps alleviate pain from cancer or HIV. He noted that less than 3% are buying marijuana for pain associated with cancer.

Mike Sperry said a University of California Santa Barbara study showed that there is medical justification for legalization of marijuana. Mr. Sperry said that marijuana helps with anxiety and 200 other things. There is currently a ban adopted on medical marijuana dispensaries in unincorporated Merced County. He asked when he could get a Conditional Use Permit (CUP) from the City. He asked the City Council for their ideas and what they would like to see to regulate his business. We can make it happen. The Police Chief will enforce the rules and regulations. If Mr. Sperry violates them, Livingston will never have another medical marijuana dispensary. Medical marijuana will be on the November 2010 ballot and Mr. Sperry was sure that it will pass. California has a nightmare coming.

Mayor Varela said that it was interesting that Mr. Sperry called it a “nightmare.”

Mayor Pro-Tem Vierra referred to a comment from Mike Sperry that medical marijuana dispensaries are banned in Merced County. He asked Mr. Sperry why he thought that Merced County was banning medical marijuana dispensaries. Mr. Sperry commented that we are in the middle of a recession and there are very few things that are actually out there making money. People are spending money on nails, hair, tattoos, medications, etc. He said he deals with people all day long and nobody is happy anymore. He is just asking for help and a chance, but what is going on in this valley it is nasty. He said maybe he can employ four or five people and feed some families. It has to be the way the corporation is structured and at the end of the year he has the power to spend the money he makes. Mr. Sperry asked why he cannot order a truck load of blankets during the summer or to give away some coats for needy kids. Why can’t he donate $300,000 to the City’s water bills because that is what all the people in Livingston want? He said maybe he could pay every kid’s soccer tuition. Mr. Sperry said you understand this and it is not necessarily money coming out of the pockets from Livingston or Merced County. We are going to pull people from other areas. We are going to get money. Nobody comes to McDonalds in Livingston when they live in Atwater because they already have one. Build a Wal-Mart, he knows that is going to make a lot of money. He asked the Council to tell him what bigger business is going to pull people here.

Community Development Director Kenney commented that the clubs she has called require that you bring all your medical records from a licensed doctor, along with $200 to get an appointment to get into a club. She said it was not quite as simple, and having a dispensary in town does not have an effect on people being able to have their cards from doctors and their own gardens as well.

Ralph Mull said he knew for a fact from going to the California caregivers’ office in Modesto and sitting through distribution of medical marijuana cards. They do not just give the card because you have a headache. You have to bring something within the last year from your doctor for a medical problem that is permanent. You cannot just go in there and say you have a cold and get a card for medical marijuana. You have to have a pre-existing injury or an injury that is going to last for the rest of your life before they give these cards away.

Mike Sperry stated that the one thing that the City Council needs to understand is that the price of medication that he will be selling is more than street value. The habitual person cannot get into his shop. But the habitual guy can buy marijuana for $20 on the street or $50 at his dispensary. This is the guy that smokes $20 every couple of days. Mr. Sperry does not want that and he has the power to put restrictions on his sales. He has the authority to do that because he is not trying to be a drugstore. He is not trying to be a junkie.

Mayor Varela closed the public comment on this agenda item at 11:23 p.m.

Motion: M/S Nateras/Vierra to waive the first and second readings of Urgency Ordinance No. 586, an Ordinance of the City Council Establishing a Moratorium on the Approval of Medical Marijuana Dispensaries. The motion carried 5-0 by the following vote:

AYES: Council Members: Aguilar, Espinoza, Nateras, Varela, Vierra

NOES: Council Members: None

ABSENT: Council Members: None

23. Establish City of Livingston Planning Commissioner Terms for Newly Appointed Planning Commissioners.

Mayor Varela said the Council would like to congratulate the new gentlemen that are on the Planning Commission.

Community Development Director Kenney presented the agenda item. At the special meeting of March 16, 2010, the City Council appointed Luis Flores, Hugo Salgado and Alexander Gonzalez to the Planning Commission. However, the City Council did not assign specific terms to their appointment. One member needs to be assigned to a four-year term, one needs to be assigned a three-year term and one needs to be assigned a one-year term.

Motion: M/S Aguilar/Espinoza to adopt Resolution No. 2010-18, appointing Luis Flores to a four year term; Hugo Salgado to a three year term; and Alexander Gonzalez to a two term. The motion failed to carry by the following roll call vote:

AYES: Council Members: Aguilar, Espinoza

NOES: Council Members: Nateras, Varela, Vierra

ABSENT: Council Members: None.

Motion: M/S Vierra/Nateras to adopt Resolution No. 2010-18, appointing Alexander Gonzalez to a four year term; Hugo Salgado to a three year term; and Luis Flores to a two year term. 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

24. Introduce and Waive First Reading of an Ordinance of the City Council of the City of Livingston Amending Title 1 (Administrative) Chapter 5 (City Council) Section 1 of the Livingston Municipal Code Relating to Day and Times of the Meetings of City Council.

City Manager Warne presented the agenda item. In an effort to save money, the City has been consolidating agenda items and City Council meetings. The City saves $3,000 to $6,000 per meeting through consolidation, depending on the number of consultants and attorneys that are required to be present. The City and the City Council needs to be efficient during these difficult economic times. Therefore, we recommend that the City Council adopt this ordinance and have only one regular meeting a month.

Mario Mendoza commented that the City Council should have two meetings a month.

Warren Urnberg stated our City fathers wrote ordinances establishing two meetings a month and the hours for a reason. He does not understand why the Planning Commission has to have an attorney there at every meeting. That is a waste of money. During the eight years that he was on the Planning Commission, they only had an attorney present two times. That is a money saver. When the City Council had their meetings at the old court house, the only people present were he and Marge McFadden. Now there is public participation. Maybe it has to do with the water, sewer and garbage rates. He asked how going to one meeting a month would affect City Council salaries.

Luis Flores said he does not see the point in having only one meeting because

you double the time of a single meeting. He is in favor of having two meetings.

Julio Valadez, 1158 Sixth Street, agreed with Luis Flores. He asked if the City Attorney is paid by the hour. He said the City was going to pay the same for the City Attorney if there was one City Council meeting or two meetings a month. Mr. Valadez asked why everybody on the Planning Commission could not serve for two years or three years.

City Manager Warne explained that the terms are staggered so that you have continuity and stability on the Planning Commission. Under the current ordinance, Planning Commission members rotate on and off, but everyone does not leave at the same time. He said most cities have staggered terms for the Planning Commission.

Theresa Land agreed that the City Council should have two meetings a month. She asked if the City Council was going to cut their salaries in half if they have only one meeting a month. She does not understand where the City is saving money because the City Attorney is present whether the City Council has a meeting once a month or twice a month. It is the same. She asked for clarification about the savings.

Mayor Varela commented that the reason this meeting has gone so long is because there is so much discussion and differences of opinion on so many matters. This takes a long time. He noted that normally this meeting should have lasted until 8:30 p.m. But this is where we are today.

Ms. Land asked where the cost savings were by going to one meeting a month.

City Manager Warne stated there is a lot of time, effort and money that goes into getting ready for a Council meeting. He explained that it costs more to have a City Council meeting with just a couple of agenda items because all staff, professional consultants and minute takers have to prepare and be present at the meeting. The City Council has been operating at one meeting per month since last July. He does not think it follows that having two meetings takes the same amount of time as having one meeting. The cost saving are substantial. City Manager Warne said that it costs between $3,000 and $6,000 dollars to hold a City Council meeting. This translates to $36,000-$72,000 dollars a year.

City Manager Warne said that City Council meetings do not have to go to 11:30 p.m. He said that he was a City Council Member many years ago and the City he served in as an elected official never had meetings like the ones in Livingston. This meeting should have never gone on like this and should have ended several hours ago. City Manager Warne thought there are substantial savings and thought that the public is just as well served. Everyone needs to do their part to cut costs and save money during these difficult financial times—and that includes the City Council who can be more efficient without jeopardizing public services.

Theresa Land stated that Danna Rasmussen does not get paid to do the minutes.

City Manager Warne said that is not correct. She gets paid an amount in addition to her regular salary to do the minutes. He explained that there are hard, direct costs and there are soft costs. He suggested that the entire City Council work together and efficient in conducting the public’s business. Every meeting does not have to be like this meeting. City Manager Warne commented that we recommend one meeting a month. The planning commission has one meeting a month.

Theresa Land stated the reason this meeting has gone so late is because of the issues and missing several meetings.

Ralph Mull said that there are 26 items on the City Council agenda tonight. How many times did you cancel the second meeting?

City Manager Warne replied that the City Council meetings last over three hours regardless of the number of agenda items. In his opinion, this City Council meeting did not need to go this long. The problem is that everything in Livingston has become political. Even paying the bills has become a political thing. We cannot even pay the power bill without it being political. It is very unfortunate. We need to cut costs and we can cut the costs by being more efficient in the number and length of City Council meetings.

Ralph Mull said the City Council should reserve the right to have the second meeting in the month. It can always be cancelled if it is not needed. City Manager Warne said the City can call a special meeting if a second meeting during the month is needed. Mr. Mull stated that two members of the City Council were missing from the last meeting. He thought two days was not enough time to let people know that the meeting was changed.

Mike Sperry asked if the City Council could allow five minutes at the podium instead of three minutes if the City Council had only one meeting a month.

Katherine Schell Rodriguez commented that she has been coming to a lot of meetings and has never seen so much whining, bitching, bickering and back stabbing. She apologized and said she would try to tone it down. She said and from coming inside into this right here she has sat at that table with her mouth shut. She said she may have disagreed with some of the things that were coming out of mouths up there, but she was not back there shouting it out and dragging things on. She has been to a lot of meetings with some very controversial topics. And she has never seen as much rambling and ranting that she has seen coming out of the mouths of people behind the dais. This meeting would have been over at least two hours ago if everyone, and she meant everyone on both sides of the dais, had stayed on the topic. There should not be constant back and forth between the dais and the audience and audience and the dais. She said that she was at meetings of the prior City Council that were adamant that once a person had three minutes to speak, they were done. There were no second chances. She said if it was good enough back then, it is good enough now.

Mayor Varela closed the public comment portion of the agenda item.

Council Member Aguilar said that Mayor Varela had stated in the Merced Sun-Star “however the absences were a political move and that Council Members Espinoza and Aguilar had boycotted the meeting.” Council Member Aguilar told Mayor Varela that he never once called her and recommended that Mayor Varela be careful with his wording. She will respect him, but he better respect her. He said that the only political move was reporting that she had e-mailed the City Attorney 20 minutes before the meeting to say that she would not be there. That is being responsible. Council Member Aguilar further commented that Mayor Varela’s political move was not letting the residents know. She said the word boycott is when you tend to not do something because you are trying to prove a point or something. She mentioned in her email to Mr. Hobbs that she had other personal things that she needed to take care of because of the meeting change and she was not going to be there. Council Member Aguilar said she did not appreciate Mayor Varela’s newspaper quotation. She stated maybe she read it out of context, but that is what it says and she did not appreciate it.

Council Member Aguilar stated that some people cannot make it the first meeting, but can make it to the second meeting because people work. She said let them have the option. She asked who is going to make the decision regarding what is important. As a single parent of four children she is very proud to say that she has raised them on a limited income. She knows about cuts. There are plenty of complaints about certain staff members, the part-timers. We could look into issues, but when you just cut the communication line by cutting one meeting. You do not want to listen to the people. $72,000 a year is nothing compared to what we are paying for legal fees. Everyone knows that this is just a way not to listen to the residents and to avoid every issue. She said look at what the City Council did to Mr. Sperry. He should have had enough time to speak. We need that second meeting so that you can get your information. They do not want to deal with the residents because of the water issue. She said that the Mayor said that the City Council meetings are filled with drama. She asked who’s drama. Drama is am inappropriate word to use against the citizens. She strongly feels that this is just to shut the community down.

Council Member Espinoza asked what do you do when you don’t want to listen to the citizens, you cut down on the meetings. He said just because we have the majority you can take off in the power. The citizens don’t care if that is what you do.

Motion: M/S Varela/Vierra to introduce and waive the first reading of an Ordinance of the City Council of the City of Livingston Amending Title 1 (Administrative) Chapter 5 (City Council) Section 1 of the Livingston Municipal Code Relating to Day and Times of Meetings of the City Council. The motion failed to carry 3-2 by the following vote:

AYES: Council Members: Varela, Vierra

NOES: Council Members: Aguilar, Espinoza, Nateras

ABSENT: Council Members: None

25. Resolution Setting Day and Times for Regular Council Meetings.

Because the previous agenda item was not approved, no action was needed

on this item.

26. City Manager Announcements and Reports.



The meeting was adjourned by consensus at 11:52 p.m.


City Clerk of the City of Livingston

APPROVED: August 3, 2010


Mayor or Mayor Pro-Tempore

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.


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