AUGUST 3, 2010 Draft Minutes

CLOSED SESSION/REGULAR MEETING

LIVINGSTON CITY COUNCIL

AUGUST 3, 2010

A Closed Session/Regular Meeting of the Livingston City Council was held in the City Council Chambers on August 3, 2010, with Mayor Varela presiding.

CLOSED SESSION

The scheduled Closed Session was cancelled.

REGULAR MEETING

CALL TO ORDER

Mayor Varela called the meeting to order at 7:00 p.m.

PLEDGE OF ALLEGIANCE

The pledge of allegiance to the flag was recited.

ROLL CALL

Mayor Daniel Varela, Sr.

Mayor Pro-Tem Frank Vierra

Council Member Rodrigo Espinoza

Council Member Margarita Aguilar

Council Member Martha Nateras (Excused Absence)

CLOSED SESSION ANNOUNCEMENTS

The Closed Session was cancelled.

CHANGES TO THE AGENDA

There were no changes to the agenda.

City Manager Warne commented that Item No.7 was Council Member Nateras’ item and since she was absent he suggested the item be continued to the next meeting.

AWARDS, PRESENTATIONS, APPOINTMENTS AND PROCLAMATIONS

1. Livingston Recreation Swim Team Presentation.

Recreation Superintendent Jacquie Benoit presented awards to the swim team and Coach Jonathan Strasser. She noted this was the first time in 30 years that the City has had a swim team.

2. Presentation of Five-Year Service Pin to Donna Barnes.

Mayor Varela presented a five-year pin to Donna Barnes in recognition for her service to the City as Executive Assistant to the City Manager and City Council.

3. Presentation of Five-Year Service Pin to Julia Jacobo.

Mayor Varela presented a five-year pin to Julia Jacobo in recognition for her service to the City as a Police Department Dispatcher.

4. Presentation of Business Certificate of Recognition to Rumualdo Castaneda, Mi Casa es tu Casa Restaurant.

Mayor Varela presented a Business Certificate of Recognition to Rumualdo Castaneda, owner of the Mi Casa es tu Casa Restaurant on Crowell Street.

5. Announcement of Amicus Curiae (“Friend of the Court”) support from League of California Cities (“LOCC”), California State Association of Counties (“CSAC”), and Association of California Water Agencies (“ACWA”) in Foster Poultry Farms, Inc. v. City of Livingston, California Court of Appeal, Fifth District, Case No. F059871.

City Attorney Hobbs announced that the League of California Cities Citizenship of California Counties upholds the Association of California Water Agencies and upholds the support behind the City of Livingston in the court of appeals’ decision in the Foster Farms versus the City of Livingston which is the case pending relating to the water rates..

6. Proposition 22 Local Taxpayer Public Safety and Transportation Protection Act of 2010. Presentation.

Steven Qualls, Public Affairs Manager for the Central Valley Division, League of California Cities, gave a presentation on Proposition 1A.

7. Report on Citizens’ Service Committee Appointments.

Continued to the next meeting.

ANNOUNCEMENTS AND REPORTS

Supervisor John Pedrozo Announcements and Reports.

Supervisor Pedrozo was absent.

City Council Members’ Announcements and Reports.

Council Member Margarita Aguilar

· Thanked those who know and acknowledge that her son is in Afghanistan at this time. He will be home in February and is doing fine.

· Reported on a problem with the relocation of satellite dishes at homes in the K. Hovnanian Parkside Subdivision after the roofs are done. Residents have received a letter stating that the developer is not responsible for putting back the satellite dishes This is costing the residents between $50-$60 which she felt is not their responsibility, but the responsibility of the developer.

· Commented on a situation that occurred involving her, Vickie Lewis, the Assistant City Manager/Finance Director and the City Manager. The situation was in regards to an appointment she made with Vickie Lewis to discuss and review the City budget and the City’s Manager’s uncalled involvement in the meeting. She strongly voiced her displeasure with the City Manager for not letting her meet with Vickie Lewis alone without his presence.

· Made the following statement in Spanish, “Once again, I simply want to say that on August 31, you have a right to come out and vote your mind so you can have a different administration, so then do it. On August 31, you have a voice and you can do it. I guess I will speak Spanish if I have to. Thank you so much for shaking your head.”

Council Member Rodrigo Espinoza

· Commented that he is aware of the situation that occurred with Council Member Aguilar’s appointment with Vickie Lewis and the City Manager’s unwelcome presence at the meeting. He voiced his anger and frustration about this situation.

· Reminded the citizens, that the Mayor and Council Member Nateras have said if the people don’t like what they are doing then recall them and that is what the people are doing. A lot of people in the audience are the people that signed the recall. They are being retaliated against by the community and that is not right because we all are trying to do what is best for the community.

Mayor Pro-Tem Frank Vierra

· Commented that in the July 27, Merced Sun-Star an article states, “For whatever reason Livingston is repairing sidewalks.” He said that sidewalk repair has been on- going since 2006 and is not something that just happened yesterday. Mayor Pro- Tem Vierra noted that City staff applies for grants every year and for the last three years the City has been doing sidewalks.

Mayor’s Announcements and Reports.

Mayor Daniel Varela, Sr.

· Commented that he appreciated the comments from the Council Members and he wanted them to know that no one interrupted them during the process, so he would appreciate the same in return in a respectful manner.

· Reported that on June 3, he toured Golden Valley Byproducts, a tire recycling plant in Ballico. He said that in July Golden Valley Byproducts attended a MCAG meeting and highlighted what they do and how they are a part of a proactive process of eliminating the problem of unwanted tires.

· Reported that he met with Pastor Bill Ruth about starting plans for a farmers market in Livingston. He said hopefully we will be able to move forward with the project by fall.

· Commented that on July 15, he was the first to start a forum called a Mayor’s Forum in Livingston where discussion centered on the promotion of the good things in our community.

· Reported that on July 10, he traveled to the City of Hercules and met with Isabela Enterprises to gain information about the new systems pertaining to solid waste and new home energy and how they could benefit our community in the long-run. On July 19, he was invited and was interviewed by KMBH Channel 26 of Fresno for Great Days with Mayors. He said it was another opportunity to talk about the good things in our community and the great people we have here.

· Reported that on July 29, he had another Mayor’s Leadership Forum. He interviewed members of the Livingston Community Network and discussed the upcoming Multi-Cultural Festival.

· Commented that he and the City Manager were called from a radio station in Merced which was just another event to be able to brag about our community.

· Stated that he had a very positive week. He said as far as the recall goes, when he steps into the City Manager’s office or Vickie Lewis’s office, they are always trying to put together ideas to develop better things for the community. It is not to cut anybody’s throat and not to see how he can get somebody. It is positive and to develop a collaborative relationship. He appreciates Richard Warne for the incredible job he has done for our community and the staff. We have our challenges, but the greatness of people step forward.

PUBLIC HEARINGS

8. Resolution Adopting Initial Study and Negative Declaration and Approving Site Plan / Design Review 2006-01 for the Foster Farms Rendering Plant Project.

Due to a conflict of interest Mayor Varela excused himself from participation on this item. He is employed by Foster Farms.

Community Development Director Donna Kenney presented the agenda item. She commented that the project applicant, Foster Farms, proposes to expand its rendering operation at the existing poultry processing complex. She presented a detailed report on the current rendering operation and the proposed expansion project.

Mayor Pro-Tem Vierra opened the hearing for public comment at 7:39 p.m. and closed the hearing at 7:40 p.m. as there were no comments from the public.

James Marnatti, Foster Farms’ Director of Environmental Affairs, was present to speak and answer questions on the project.

Extensive discussion and a question and answer session followed on the existing operation and proposed project, in particular odor problems emitted from the rendering plant.

City Attorney Hobbs said that before the Council makes a motion on this item, he wanted to advise the Council that because the item calls for adoption of a resolution it will take three votes to approve the project tonight.

Council Member Espinoza commented that he wanted to note that the City Attorney had asked him if he had a conflict of interest with this item because the house that he rents is across from Foster Farms. He stated he does not have a conflict of interest and he will be voting on this item tonight.

City Attorney Hobbs said the reason why Council Member Espinoza is not in conflict of interest in voting is because his house is located near the facility, however, Council Member Espinoza has assured him that there is no evidence that his approval or non approval would have any impact on the rental interest he has in the property.

Motion: M/S Espinoza/Aguilar to adopt a Resolution Adopting the Initial Study and Negative Declaration and Approving Site Plan/Design Review 2006-01 for the Foster Farms Rendering Plant Project. The motion failed to carry by vote of 2-1, with Mayor Pro-Tem Vierra voting no.

City Attorney Hobs said this item will be brought back at the Council meeting of August 17. He said the public hearing has been opened and closed, so this will only be an agenda item

Mayor Varela returned to the dais at 8:06 pm

9. Resolution Conditionally Approving Site Plan/Design Review 2010-05 for the AT&T Antenna Project.

Community Development Director Donna Kenney presented a request by AT&T to install six new panel antennas at the 195-foot elevation of the existing lattice tower near the existing mini-storage facility on Walnut Avenue. Installation of the antennas will allow AT&T to provide better high-speed wireless access to the City. The 195- foot lattice tower currently in place was approved in 1996 by Conditional Use Permit (CUP) 96-02 approved by the Planning Commission. The Conditional Use Permit (CUP) was later modified in 1998 to allow additional antennas. From 1998 to 2005, the Planning Commission approved a series of Conditional Use Permits to allow the co-location of panel and dish antennas by various carriers at various heights on this tower. All are connected to equipment cabinets on the ground by cables.

Mayor Varela opened the hearing and subsequently closed the hearing at 8:09 p.m. as there were no public comments.

Mayor Pro-Tem Vierra commented that the last time we had an issue about expanding, the applicant said there was no more room on the tower, so what

AT&T is doing is that they are removing and adding more antennas.

Community Development Director Kenney said AT&T is removing and adding, and they are also adding more antennas in the process that is currently being reviewed by the building department. She said AT&T will submit engineering that they have done on the structure and if the structure needs to be reinforced we will know that, but engineering will determine if the tower can support the additional antennas. If the engineering report comes back and says it won’t, AT&T will not be able to move forward.

John Hugh, representing AT&T, stated they will be replacing three antennas, and at the same time will be adding six antennas. He said AT&T will be submitting plans for building permits and as part of the building permit process, structural calculations will be submitted as well to make sure the structure is able to handle additional capacity. Mr. Hugh said this will all be done by a professional engineer licensed by the State of California.

Mayor Pro-Tem Vierra asked if the tower belonged to AT&T. Mr. Hugh replied yes.

Motion: M/S Vierra/Espinoza to adopt Resolution No. 2010-42, a Resolution Conditionally Approving Site Plan/Design Review 2010-05 for the AT&T Antenna Project. The motion carried 4-0 by the following vote:

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

NOES: Council Members: None

ABSENT: Council Members: Nateras

10. Resolution Setting the City of Livingston’s Gann Appropriation Limit for the Fiscal Year 2010-2011.

City Manager Warne presented the agenda item requesting that the City Council adopt a Resolution setting the City of Livingston’s Gann Appropriation Limit for Fiscal Year 2010-2011 at $3,526,916.00.

City Manager Warne commented that Revenue and Taxation Code Section 7910 requires each local government to establish its Appropriation Limit by resolution each year at a regularly scheduled meeting or a noticed public meeting. He said that in November, 1979, the voters of the State of California approved Proposition 4, commonly known as the (Paul) Gann Initiative. The Proposition created Article XIII B of the State Constitution placing limits on the amount of revenues which can be spent by all entities of government. The limit is based on actual appropriation during the 1978-1979 Fiscal Year and increased each year using the growth of population and inflation.

Mayor Varela opened and subsequently closed the hearing at 8:16 p.m. as there were

no comments from the public.

Motion: M/S Vierra/Aguilar to adopt Resolution No. 2010-43, a Resolution Setting the City of Livingston’s Gann Appropriation Limit for the Fiscal Year 2010-2011 at

$3,526,916.00. The motion carried 4-0 by the following vote:

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

NOES: Council Members: None

ABSENT: Council Members: Nateras

11. Public Hearing and Resolution of the City Council of the City of Livingston Approving the City of Livingston Budget for Fiscal Year 2010-2011.

City Manager Warne presented the Fiscal Year 2010-2011 Fiscal Year Budget for the Council’s consideration and approval. He further provided a general overview of the budget and its contents.

Mayor Varela opened the hearing for public comments at 8:32 p.m.

Debra Lopez, 1543 Monte Cristo Way, asked who she needed to thank for all the grant money the City had received. She also asked who is responsible for obtaining grants. Mayor Varela said grants are obtained by the City Manager and City staff. Ms. Lopez thanked them for their efforts.

City Manager Warne commented that staff is diligent in watching out for state and federal grants and when the opportunity arises, we assemble a team of people who help gather the grant applications, naming in particular Donna Kenney, Nanda Gottiparthy, Jasmin Baines, Kathryn Reyes, Vickie Lewis and him. He said they all work together as a team to apply for these grants and we have been very successful in accessing federal and state funding for the City..

Debra Lopez said she believed our water rates are fair. She came from Atwater and was actually astounded to see the rates in Livingston being so low and for us to finally come up with what is really appropriate and get some things established because we did get some grant money to do that. She said if we don’t follow through then we are going backwards not forward. She hates to see the City do that. Everyone has worked too hard. She is against the recall and thinks it is a waste of money..

Council Member Espinoza commented on being approached by a couple of citizens regarding their utility bills that were $200-$300 a month for water and they actually use less water now and their bill is higher. He said many people are paying a $200-$300 bill that he felt was not right. Council Member Espinoza said these individuals had asked the City in the past if they could at least pay for half the bill because they didn’t have any money and they were told they had to pay $230. He noted that we need to look at the water rates again.

City Manager Warne commented that if Council Member Espinoza would give staff the names of the people he is suggesting have paid a $200-$300 water bill. He knows this has been suggested by some Council Members in the past and when staff checked people only had a $70 water bill

Council Member Espinoza noted that he had actually provided those bills to staff. City Manager Warne said this is true and the charges on those bills that Council Member Espinoza provided were not what he suggested they were.

Council Member Espinoza commented that when people get a big bill and go to City Hall they are told their bill is $200 and not to worry about the bill because they will lower the cost for them. He asked what about the rest of the people. A lot of people are complaining that their meter is not getting read correctly. People at the mobile home park don’t have grass and a lot of people are letting their grass die. And sewer is over $50 a month,. He knows that people in surrounding cities do not pay as much as Livingston residents.

Myra Bettencourt,1584 Duke Drive, stated that she moved to Livingston from Modesto and in Modesto there as an increase every year. She commented that there has not been an increase in Livingston for water since 1995 and the utility bills are not only charges for water, but other services as well. She commented that she supports the City Manager and felt he has done a great job.

Modesta Enriquez, 642 Prusso Street, expressed concern with the high water rates charged by the City. She noted that before the increases her utility bill was $65.55 and this past month it was $211.45 and for the use of 55,000 gallons the charge for water alone was $130.00. Ms. Enriquez referred to a flyer that was included in the utility bills that stated that less than 1% of the average person’s personal income is for water and wastewater services. But she and her husband earn $5,000 a month, so their water bill should only be $50.00 because of information noted in the flyer. She noted the flyer showed that one gallon of water should only be one cent and if she used 55,000 gallons that should only be $55.00.

Mayor Varela stated that if she is saying that her bill is that much she needs to take the bill to the City. Ms. Enriquez said she did talk to someone from the Public Works Department named Jim and she was told he would check her meter yesterday and the person, Jim, told her he would check her meter. Her meter showed 55,000 gallons of water usage. Ms. Enriquez said she was not trying to dispute the usage, but what she was saying is that the flyer shows that she is supposed to pay one cent for each gallon of water. She said if you calculate that 55,000 gallons at .001 that is only $55.00. City Manager Warne said he understood that it is highly unusual that two people could use this amount of water. Ms. Enriquez noted they have a big lot. City Manager Warne commented that we will follow through and check this out because 55,000 gallons of water for two people even on a large lot seems like there is a problem because, so we will check it out.

Ana Galvan, 880 Wycliffe Drive made the following statement in Spanish, “Good evening everyone. I am not speaking English because my English is not good. Madam congratulations. I am also going to speak about this paper you included in the water bill. When you send it, send it better explained because this is worthless. Neither I or my grandson or my son understood it. You know Mr. Varela that you have to send it in English and Spanish because it’s not just for the people that speak English, we also pay for water and we are here too. Now, regarding the August election, is that going to be here or where is it going to be?”

Council Member Espinoza replied that the election was going to be held in the City. .

Ana Galvan further stated (in Spanish),“Well I also want to speak on that topic. Three weeks ago, it came out in the newspaper that you, Mayor Varela, and Martha Nateras spoke horribly about Rodrigo Espinoza and it said that the Livingston community didn’t grow (pause) indicating that we were ignorant. We are not so ignorant because we voted for you to be here and represent us better. When you stated in the newspaper, because it was all three of you – the Mayor, Vierra, and Martha Nateras; you were standing in front of the Museum. And you went to the high school to speak and a young boy asked you why the water increase and you responded that the water increase happened because of what Mr. Rodrigo Espinoza had done and the ex-Mayor and the ex-Chief of Police. I don’t have children in school, but I found out about it. And something else, one month ago, there was a City employee working on the left side of Walnut Avenue on a Saturday. He was not wearing a uniform, but he had the City truck. It was 9:30 a.m. when I passed by there to take my daughters to the doctor. It was a City worker; he had the City truck, but he was not wearing a uniform. He was working on a particular home on Walnut Avenue, in the area more or less where you live. What is happening? Mr. Rodrigo gets insulted and called a crook, accused of not having a permit for his business and many other things that were said when you went to the high school with Mr. Frank Vierra and Martha Nateras to talk horribly about Rodrigo Espinoza.”

Council Member Espinoza (in Spanish) stated, “That happens, madam, when you are on the people’s side and when you are on the side of the ones who want to control the town, they don’t know what to come up with against the ones that are working for the people. I would like what you said be interpreted.”

Mayor Varela (in Spanish) stated, “Madam, I want to clear up something; I never went to the high school or to the middle school. Do you know that for a fact?”

Ana Galvan (in Spanish) replied yes.

Mayor Varela (in Spanish) stated, “That is not true, madam. I never went to the high school to talk about Mr. Rodrigo Espinoza.”

Ana Galvan (in Spanish) stated, “There is a young girl that goes to the high school and her and I were talking about the election and I asked her, “Have you registered to vote?” and she responded, “Yes I did,” and I informed her that there was going to be an election on August 31 over the Livingston Mayors and about the water and all that because we disagree with that, and then she told me this, this and this was said. This is a young girl who does not lie.”

Mayor Varela (in Spanish) stated, “I never spoke with anyone at the high school, and I need to clarify this because you are raising some false information about me and that’s wrong and I know it and you know it.”

Mayor Varela translated Ms. Galvan’s statement in English. He stated, “ Ms. Galvan is making reference to a brochure that she received in her water bill. He asked Kathryn Reyes to please give an explanation on the brochure. Again Ms. Galvan raised an issue that on a certain weekend she saw one of our City employees with a City vehicle that was not dressed in a City uniform working on Walnut Avenue. Mayor Varela commented that sometimes the employees are on call and if they go out to respond to a call they may not have time to put on a City uniform.

Mayor Varela (in Spanish) stated, “Madam, I’m going to try to translate what you said.”

Ana Galvan (in Spanish) stated, “But say everything because once already you (pause).”

Further discussion between Mayor Varela and Ms. Galvan followed. Some comments were inaudible because both parties were speaking at the same time.

Kathryn Reyes gave an example of being called out at 11:15 p.m. because a Merced Irrigation District canal broke, and so Public Works employees responded within 10 minutes so they could assist MID, Caltrans and the CHP. She noted there were

Other incidents that Public Works employees had to respond to quickly. Ms. Reyes said personally she leaves the house quickly in whatever she is wearing and it could be pajamas because we need to take care of situations quickly.

Mayor Varela asked the Council to be supportive of the staff. They do an incredible job and we all know what they do, so you should stand up for them when they are getting criticized because they are on-call.

Kathryn Reyes went over the flyer that was included in the utility bills.. She said the flyer, the little comparative shopping, the one gallon of tap water equals less than 1/10 of 1%. This was a flyer from the American Water Works Association (AWWA). She said the AWWA created it and we made use of it to give people some education on what it takes to produce water that you can have at your tap.

Estella Martinez made the following statement in Spanish, “What Ms. Reyes said is that the flyer we received was for purposes of information only, to inform us of how much it costs for us to get one gallon of water in our faucet. It was not to tell us that’s what we are paying at the moment. It is just a comparison made by the American Water Works Association which is an agency consisting of different water departments to tell us what the value is of the water we get or what it can cost us, and not what we are paying.”

Kathryn Reyes further read and explained information contained in the AWWA flyer which was interpreted in Spanish by Estella Martinez.

Estella Martinez (in Spanish) stated, “Ms. Reyes is reading the flyer and it says that one gallon of water is 1/10 of 1% of what it could cost. If we do the math, it is true that it could come out to $55.00 as earlier stated. What they are doing is just a comparison. In this flyer, they are comparing the different liquids – the water compared to the gasoline as Ms. Reyes explained.”.

Kathryn Reyes noted the flyer says one gallon of gasoline is $2.49-$3.75, that is what you pay for one gallon of gasoline. She said one gallon of table wine is $18.30, one gallon of bottled water is $1.43. These are all one gallon and we are talking about 1,000 gallons of water. So back to the one gallon of gasoline. We can all live without one gallon of gasoline forever. However, one week without water at $1.55 for 1,000 gallons and we will perish and die.

Estela Martinez (in Spanish) stated, “She is explaining the comparison with gasoline, and, I will not repeat word for word, maybe if we had to, we could live without the gasoline, but we cannot live without water. We need the water for everything. The bottled water is very expensive and we all know that and that is the comparison they are giving us in the flyer. It is only a price comparison and she was referring to the gasoline that they are giving us one price, but we are actually paying a lot more for the water.”

Kathryn Reyes stated she would appreciate citizens contacting her if they are having problems with the amount of water they are using. She said it all comes down to irrigation. We can look at how you are irrigating. Sometimes we can look at how you are irrigating and then see if there is some way we can save water. Ms. Reyes said she knows that many citizens have big lots. This is the age of water conservation and we do need to start looking at drought tolerant landscaping and hopefully in the next few months we will be providing some education on that so people can choose a more drought tolerant type of landscaping to try to deterrent water.

Estella Martinez (in Spanish) stated, “She says that if you have questions or problems with your water bill to please let her know. She will check it out. Normally nine times out of ten the problem we are having is that we use a lot of water in our yards. She can also tell us what to do to have yards that don’t require too much water. She is inviting us all to go to City Hall if we have any questions so that she can check it out.”

Theresa Land, 995 Hilltop Avenue, said she noticed in the presentation for the skateboard park that it said $99,920. She asked what happened to the other $80.00. Ms. Land said she believes that in another session the City Manager said that $100,000.00 was given to the City by a developer for the skateboard park.

City Manager Warne explained that in Fiscal Year 2010, $80.00 was spent and that is why the figure shows $99,920.. He said we were in the process of doing the Request for Proposals for the skate park and if Ms. Land would recall it was during the last fiscal year that the City sent out the Request for Proposals and the City Council interviewed the consultants for the skate park. He told Ms. Land that she could see the $80.00 on page 508 of the budget.

Theresa Land commented that in the in recreation budget for Fiscal Year 2010, $10,200 was allotted for the July 4 celebration and the event was cancelled. She asked what happens to that money now. She also noticed that nothing was allocated in the budget for next year’s July 4 celebration and she asked if the City can shift that money that was not used this year for next year’s event.

City Manager Warne referred to the General Capital City Projects Fund, and noted to Ms. Land that she could see that $80.00 was spent in Fiscal Year 2010 for expenses relating to getting the consultants on board and having the agreements prepared so that equals the $100,000. City Manager Warne explained that the way government works is that all appropriations lapse at the end of the year, so unless money is re-appropriated no money is carried over, either revenues or expenses.

Theresa Land asked what happened to the $10,200. City Manager Warne said the appropriation would have lapsed on June 30, if it was not spent. He would have to investigate this.

Theresa Land asked, so there was money allotted for July 4th? City Manager Warne replied yes, except that it was in the last fiscal year, not this fiscal year. The 4th of July appropriation is in the new Fiscal Year, 2010-2011. He said the Fiscal Year starts July 1, so if you were to have an event for the 4th of July it would show in the next fiscal year. Theresa Land again asked so there is $10,200 available for the 4th of July next year. City Manager Warne said no, there is nothing allocated in the budget for this event. He explained that all appropriations have lapsed. He wanted to make it very clear that in Fiscal Year 2011, which the 4th of July falls into, we will not be spending government money for the 4th of July. .

Mario Mendoza, no address given, stated that at the last meeting he was asked what cities have the cheapest water rates and he said San Jose. In San Jose the cost for using 18,000 gallons of water was $75 and that was with a 3% cost increase. He noted that people are saying that Livingston had the lowest water rates before they were increased and that is a lie. He said 18,000 gallons in the Bay Area cost $75.00 and for that cost here we get only 6,000 gallons. Mr. Mendoza said go to his house and see that the yard is dry. He said he hardly has a backyard, so how can he have used 25,000 gallons of water. Mr. Mendoza said his neighbors have the same concerns with their water usage, but are scared to speak out because they don’t want problems. He added that Atwater and Turlock have the highest rates. .

Mayor Varela stated that the City Manager did not say we had the cheapest rates. The City Manager said that we could not operate at the rates the City was operating under since 1995..

Mario Mendoza commented that the City also has a lot of workers just standing around. Mayor Varela explained that they are contracted employees. Mr. Mendoza disagreed because he saw their uniforms and they are City employees.

City Manager Warne commented that most of the Bay Area takes their water and sewer from a municipal utilities district and they are substantially higher than these rates are, but he will check. He said the Mayor is right. We never said we were exactly the cheapest. He does know that you cannot run a system with 1995 rates where you get 35,000 gallons of water for $9.90. He noted that there are people saying that we are going to give refunds in the future and that rates are going to get rolled back and he would like know how they calculate this.

Fernando Cortes, no address given, commented that on #11 it says sewer connection and he asked can you explain that.

City Manager Warne stated that the California Regional Water Quality Control Board (RWQCB) is requiring cities that operate sewer systems, as well as the City’s sewer management plan that was approved by the RWQCB to video tape all sewer lines within the cities. What that involves is you have to hire a contractor who has specialized equipment, basically it is a camera. What that camera does is it goes up all the sewer lines and what they are looking for and what they want you to do is analyze your sewer system to determine what areas need to have repairs or maintenance and then have a proactive management plan to correct the problems. City Manager Warne said the City has never had a sewer system video taped. He said we estimate that for $45,000 we can do approximately 50% of the lines in the City.

Fernando Cortes asked if the $45,000 is a one-time expense. City Manager Warne explained that it is a one time expense. He said you only have to do this every 5-7 years. You don’t have to do it every year

Fernando Cores asked did anyone research to see how much the equipment would cost. City Manager Warne said the equipment would be much more expensive than $45,000.. Mr. Cortes commented that if he understood correctly, what the City Manage is saying is that is could be more than that amount. City Manager Warne said we have not done any proposals. We are estimating. The City sewer system is very complex. We thought it would be more cost effective to have a contractor do it than purchase the equipment

Mayor Varela closed the hearing at 9:17 p.m. as there were no further public comments.

Council Member Aguilar, referring to the enterprise funds, stated said she felt like this was a political thing. She said just the quotes that are in here need to be removed. The award does not justify the amounts. They are numbers, they are not saying you get this certificate because our numbers are perfect or it is a perfect budget. Council Member Aguilar said she didn’t think she would give an award when someone is quoting that the previous Council Members were playing. She felt that is very unprofessional. She noted these are just some of the issues that she has.

Council Member Aguilar commented on employee benefits and noted the departments had a 10.2% increase for health insurance premiums for 2011.

She was questioning that figure because we have to think about how much the City is paying. Council Member Aguilar stated that in 2006, she believes, former Mayor Brandon Friesen approved the City paying 100% of the premium for employees.

She is aware that some of the staff are now married and have children , so could you imagine what a 100% of the premium is going to cost us. She said she had asked why the Council serving at that time had approved that. Council Member Aguilar is aware that the benefits are covered under the Memorandums of Understanding (MOUs), but that is something that should have been looked at before it happened.

Council Member Aguilar thanked Debra Lopez for mentioning the grants. She is also thankful that we have grants and glad that we actually have a person that is responsible to go out and get grants. Council Member Aguilar commented that she does appreciate the staff. She doesn’t anyone to think that her comments are attacking any particular department or anyone’s personal view. She stated that sometimes our City Manager and our Mayor are telling us to respect the staff. She said we do respect the staff. We bring about questions that citizens have and one of those was insurance coverage and that was her question. She is not trying to say to take away all of their insurance, but that is a big chunk of money. She doesn’t think that there is anyone that she knows of that gets their benefits paid for at 100%. She works for the school district and they don’t get 100% of their benefits paid.

Council Member Aguilar noted we have a grant for the sports complex and it is going to be small, but in regards to the basketball courts that was money that was already allocated for that purpose. She said the reason why the basketball courts are up is because Council. Member Espinoza brought up the subject.

Council Member Aguilar raised a question the purchase of the police cars. City Manager Warne commented that the police vehicles were purchased by a State COPS grant for $100,000. The purchase included three vehicles, upgrading the dispatch center and the acquisition of an 800mhz radio system. He said we had delayed construction of the basketball courts due to the cash issues relating to where we were spending more in the water fund than what we were taking in. City Manager Warne said we did acquire a land and water conservation grant, and then another grant and that is what is being used to construct the restrooms and the picnic shelter at the sports complex and also to include a play structure. He said the Council has awarded the contract and that particular contract is moving forward. We anticipate commencing construction in the spring.

Council Member Aguilar referred to page 84 of the budget, the Community Facility District Fund. She said it is called the Mello Roost Act of 1982 which is a special tax added to new development apart from the Merced County tax and those taxes that the City gets are supposed to be used for public safety services which include the police department and the fire department and any other services not related to parks and recreation. Council Member Aguilar said the reason she is bringing this up is that this is one of the things that got her into trouble when she questioned the allocation of funds and this was approved when Mr. Friesen was Mayor, Mr. Vierra, Mr. Soria and she believes Mr. Espinoza were on the Council. They ended up charging a special tax to individuals and when that money came to the City it was supposed to be allocated in one-thirds, 1/3 here and 1/3 there and she saw that 100% was going to the police department. At the time that she questioned it was when she got into hot water. She asked when this was brought before the Council. Council Member Aguilar commented that last year they got about $355,000 in taxes and this year they are going to get $470,000 and for both of those times the money has been allocated to police to pay for three officers and two dispatchers. She had asked the City Manager who gave the authority to do that and her question was never answered. And this year she wasn’t able to address that issue again. Council Member Aguilar said she that if she owned one of those homes and asked where her taxes were going, noting they should be going to the right place and if it is not going there the City should give her an answer. She added that $470,000 is a questionable amount, and if you look at the budget for the fire department the City is only going to allocate $47,000 to the department. She said we should be more straight across the board. She said this is supposed to be reviewed again in five years and this is the fifth year and we really need to look at that.

City Manager Warne referred to page 488 of the budget and said that $489,482 was collected for this fiscal year. Last year the amount was $491,000. The estimated collection is here, but the actual collection in Fiscal Year 2009, $491,000.in the Community Facilities District Fund. He said that now that this has been set up so it can be used for public safety purposes. Since its inception,100% of the money can be used to fund the police department.

City Manager Warne stated that Council Member Aguilar has suggested that this never came before the City Council. He said that is really not true because the City Council by virtually approving the budget approves the amount of money that is allocated to the police department for the Community Facilities District. City Manager Warne said he is not aware of any document that says 30% had to go to one category and 30% had to go to fire and then 30% had to go to police. This has not changed since he arrived here. He noted that 100% of the money was going to help fund the police department when he came here – it has not been changed. The City Council every year during the budgetary process decides how much money of the Community Facilities District goes to police services or how much will go to some other public safety services. There is nothing hidden. It has all been out in the open. City Council Members have approved the budget. He is not aware of any document that mandates money to go any particular way. City Manager Warne said he thinks that is up to the judgment of the governing body to determine what is appropriate and what is not. He said so it is $470, 500. It does fund dispatchers and police officers in the Community Facilities District, every new development that comes into the City and provides annexation to this District and that helps fund police protection for the City. He said if in fact you decided that this amount was not appropriate and you shifted it somewhere else, you would then have to figure out where you were going to come up with the money to fund the police department.

Council Member Aguilar said that on page 484 of the budget there is a certain amount of it that can be paid for benefits.

City Manager Warne noted that is incorrect, He told Council Member Aguilar that she was reading the information incorrectly. It is used for public safety services. It can be used for wages, it can be used for maintenance and operation and it can be used for capital projects.

Mayor Pro-Tem Vierra stated he remembers when we started getting new development. The people of the community who have lived here all of their lives indicated that any new development had to pay for an increase in police services. That was made very clear. They said if we were going to let these developments come into town then they had to pay for that increase in service, so, the new development needs to pay for it. He feels the residents living in the established older areas of the City shouldn’t be paying for those people coming into town.

Council Member Aguilar said she was not disagreeing with the tax that is not the argument she has. She told Mr. Vierra that what she is referring to is the fact that the special tax provides only partial funds for police and fire services. For the past two years they have been allocating 00% to the police department, so that is what she is asking to look at.

Mayor Varela commented that he knows that the fire department is in partnership with the Council. We are not in partnership with the County, so this is where it is set up to go, directly to the police department because it is our department that needs to be taken care of. He added that now there is allocated funds. There are funds throughout the year for the fire department, but overall these expenses come from the County, CalFire.

City Manager Warne noted that it is apples and oranges. The Mayor is correct. There is a contract relationship with the County, but we have to pay 100% of police services.

Council Member Espinoza said he would like to move this item to the next meeting.

Motion: M/S Vierra/Espinoza to continue the budget item to the next meeting on August 17. The motion carried 4-0.

City Attorney Hobbs commented that the public hearing has been closed and the motion was to move this item to the next Council meeting for discussion.

CITIZEN COMMENTS

Theresa Land, 995 Hilltop Avenue 995 Hilltop, said she wanted to remind the citizens of the upcoming recall election on August 31. She said go to the polls and cast your vote to recall or not recall Mayor Varela and Councilwoman Nateras. Ms. Land said if you vote to recall them, then you would be asked to pick a candidate to replace them. Currently the choice for Mayor would be Councilman Rodrigo Espinoza and for Councilwoman it would be herself.

She would like to thank all 1,400 citizens who signed the recall papers. She said this is the next step in removing these two individuals from office. Ms. Land noted that Mayor Varela’s submission of his paperwork to run again in the November election sends a message to the people that in Mayor Varela’s own words the “people’s voice doesn’t matter.” She said he is sending a message to everyone that even though 1,000 signatures were collected to recall him he is going to ignore your voice and run again. She added “Now let’s send him a message and vote yes on the recall.”

Ms. Land asked Mayor Varela when he goes to speak with Ms. Lewis does the City Manager have to sit in on his meetings with her? And she wanted Mr. Warne to respond to Ms. Aguilar’s comment about the meeting with Ms. Lewis. Ms. Land told Mr. Varela, “I don’t think you should be instructing the audience on what they should or should not be applauding for. We are an intelligent bunch and can make those decisions ourselves. Why would you excuse yourself Mr. Mayor for conflict of interest from the Foster Farms resolution only to enter in the back room and have the City Attorney tell you that you needed to leave.

Mayor Varela said he had to use the restroom and he tried to sneak in and then he saw the attorney and he had to leave and he was very sorry for that. He said as far as meeting with Vickie Lewis, he invites the City Manager to sit in with them. .

Theresa Land asked Mayor Varela if he wanted to have a separate conversation would the City Manager insist on being in his meeting.

Mayor Varela replied that would be his choice. He has an open door policy with anyone and if he goes in with the Finance Director and the City Manager walks in, he has no qualms. He welcomes him. Mayor Varela said it doesn’t matter. He is there to move our community forward. He is the Chief Executive Officer (CEO) of the City. He devises this budget and if anyone has concerns he wants to answer their questions. He knows if he put together a project and someone else is questioning it, he is going to be right in the middle of it. But, if someone says no, I don’t want you in the room, well why you wouldn’t want the master planner of the project to be in the room.

Lengthy discussion ensued regarding the role of the City Manager regarding the role of the City Manager and his involvement with the Council.

Council Member Espinoza felt the citizens are recalling Mayor Varela and Council Member Nateras because that is all they care about is spending money on the City Manager and on the City Attorney. He said the citizens are fed up with paying high water, sewer and garbage rates and throwing money away on all of these exorbitant fees.

City Manager Warne gave a lengthy dissertation on his commitment and dedication to the City and its citizen. He also justified why he felt he should have been included in the meeting with Council Member Aguilar and Vickie Lewis regarding the budget. because he is the Chief Executive Officer of the City so he felt it was his responsibility for the budget as much as Vickie Lewis since he wrote significant portions of the budget document.

Theresa Land said it appeared to her that Mr. Warne had no confidence in his staff and that Ms. Lewis wasn’t capable of answering the questions that Ms. Aguilar had.

Council Member Aguilar further elaborated on the incident that occurred with her meeting with Vickie Lewis and the City Manager’s interference.

Myra Bettencourt 1584 Duke Drive, said she is a strong supporter of the vote no on the recall and she hopes that the people have their eyes open tonight. She said you see the mud slinging that is going on here and you want mud slingers running our City?. No, she doesn’t. She loves this town very much and that is why she moved here and she does not want mud slingers running our City Council and our City. She apologized for getting emotional. Ms. Bettencourt we have some very good people here. A great City Manager that has done a wonderful job and we are all very proud of him. She agreed that Mr. Espinoza should step down and leave. He has no business being up there. She reiterated that she is a strong supporter and she urges you to vote no on the recall.

Council Member Espinoza stated that when he sees what is going on he gets emotional as well because he is trying to do good for this community not just what people want and that is what this Council is doing, trying to please a few people to control this City. He said the citizens of this City hurting and the press is one sided and on their side. And if the citizens want to vote no on the recall, that is fine. Council Member Espinoza stated he knows the citizens want a change because no businesses are coming into town. Wal-Mart was scared away as well as other businesses and that is not right. He commented that the citizens of are tired of a few people trying to control the City. They all want new businesses. He commented that he was here for the community and understands that a lot of citizens don’t want to vote for him and that is fine.

Mario Mendoza, no address given, stated he supports the recall and he is a member of the recall committee. He added that if people want to know how the recall was financed to contact him.

Mario Mendoza stated, “Mr. Mayor when is it a conflict of interest for you stepping out on a Foster Farms issue and you still do vote. The same as Mr. Vierra. He works for the school district and then still votes and that should be a conflict of interest. But the attorney says “ah, no it isn’t.” Last year you did a 1% property increase because there was going to be a landscaping company coming into Livingston and doing all the landscaping. What happened to that, where is that company? Mr. Vierra you go on attack with Foster Farms, but Foster Farms makes Livingston. Foster Farms is Livingston, so why do you complain. There are some other businesses out there and they don’t support the whole community.”

City Attorney Hobbs said it is his job to advise the Council on conflict of interest and he stands by the advise he has given to Council.

City Manager Warne commented that there has not been a property tax increase, nor has there ever been one contemplated. He said if Mr. Mendoza had some minutes where this took place, but the City has not raised property taxes. City Manager Warne noted that under Proposition 13 you cannot raise property taxes.

Estella Martinez, 1650 Jantz Drive, commented that this is the first time she has come here and she is very surprised. Surprised and kind of disappointed with some of the people we have on the Council. She said a signed petition of 1,400 did not comprise Livingston. Livingston is comprised of over 12,000 people, so 1,400 is not a majority to do a recall. Ms. Martinez stated that Mr. Espinoza was talking about surviving the people. She said to Mr. Espinoza that she was probably one of his neighbors. She told Mr. Espinoza “you say because of this other Council Wal-Mart didn’t come in. When they knocked on my door and asked me to sign that petition that person told me because of them Wal-Mart is not coming. She questioned how he knew in April that Wal-Mart wasn’t coming? He is not part of the group. Why did they push you out, maybe why do we insist on having a recall when you care so much for our community when in two months after we are having a regular election, is that considerate of our friends. Mss. Martinez commented that we are paying taxes, we are paying everything here. We are living here. You cannot say you represent us. They raise the water and she told them why wouldn’t you raise it back then, then we wouldn’t be in this mess right now,. Ms. Martinez stated she is proud of our town. We have no graffiti. She said she urges you to think twice that you are not representing the majority. We need to be united not divided. She has been at every single meeting, parent meetings and not once has the Mayor, City Manager or any other Councilmen talked bad about them”

Mike Torres, 1616 Eighth Street, stated, “He is disappointed at every meeting. We all come down here and we are not accomplishing anything for the community. All the bickering and talking back and forth about the recall. Mr. Torres addressed the water hike and budget and noted the budget has to go through every year like it or not. His point tonight is he doesn’t know if we are going to have another meeting this month, we never know. But he wasn’t going to say anything, but since 1995 when the water hike started up if all the Mayors we had and all the City Council Members we have had. Every project that went through the planning commission ,every application that was put out to bid. We have had houses built. Since 1995 every plan was approved. Not one company broke ground and he blames this on all the Mayors and Council Members we have had. Mr. Torres commented, think back started back with my brother’s gas station on Walnut, low income housing, affordable housing, every project, there was time wasted from the planning commission, staff, City Council meetings, not one has broken ground. Rite-Aid was approved, that is the only one. He stated recall or no recall, we elect you people to do good for the community and that is why we are here. He asked what is wrong with the picture. Why can’t you as the government of the City and he is talking way back to 1995, and how many times have you people been here, two or three times? Don’t you learn from your mistakes? History, think back , he doesn’t want to repeat. Thank you.”

Doug Gorman, Business Agent for Operating Engineers Local Union No. 3, stated he proudly represents two of the City’s bargaining units, including the Police Department. Mr. Gorman said he came here tonight at their request to voice their support for the Mayor and his staff and Councilmen and show their opposition towards the recall. Mr. Gorman said he has listened to the citizen’s talk about what’s right and what’s wrong in Livingston. And he can tell you that he covers an area from Oakdale to Porterville that covers 22 different bargaining units in five different counties. He has seen it all. He has seen where cities went bankrupt. He has seen where cities have no money and chose to take more money from their employees to fund their general fund reserve. Mr. Gorman said he has not seen that in Livingston and what he sees going on right now a success and you people should be happy with it.

Doug Gorman stated that he and Vickie Lewis have known each from when she worked she worked for Firebaugh and if you think he gave away the ship he didn’t. That is not what happened, but he can tell you this right now if you think that you have problems here go look at Gustine. That was a city that was in financial hell and they have decimated their police department and all of their benefits. They are lucky to be afloat. They have one officer in case someone calls for domestic violence and he might be a reserve officer. You want that here, no you don’t. The City has a fine Police Department, you have a fine leadership in place. You should relish that and take that and say what we are doing now must be working because from his stand point it is.

Katherine Schell Rodriquez, PO Box 163, Livingston, stated that given the political climate on the national, state and local tonight, she is going to begin on some thoughts on voices and whether or not there is only one and wrap up with a couple of quotes by some famous American authors. Ms. Schell Rodriguez said some voices shout and rant and rave in order to turn. Some voices try to reason while some others flip the bird. Some are loud and some are soft, and some are barely spoken. Some have been asleep for years. Some voices kindly wait their turn while others are null. Some voices speak with calm and soft while others are quite mute Not every voice will choose to shout. Your every voice call names, but even softer voices rate the hearing just the same.

Ms. Schell Rodriguez continued by saying that Frank Huber once said, “Belief can be manipulated, knowledge is dangerous.” She would like to pair this with a quote by James Clark who said,” A politician thinks of the next election a statesman of the next generation.” She closed her comments with the following, “We with this as citizens of a free society entrusted with us the power of the secret ballot. We have a duty to the next generation to elect statesmen and women and not allow our release to be manipulated by mere politicians.”

CONSENT CALENDAR

Council Member Espinoza asked that Warrant No. 70856 be pulled from Item #14.

Mayor Pro-Tem presented the consent calendar agenda items.

Motion: M/S Vierra/Aguilar to approve Items Nos. 12, 13, 14, with the exception of Warrant No. 70856. The motion carried 4-0.

12. Approval of Minutes of Meeting Held on April 20, 2010.

13. Approval of Warrant Register Dated July 15, 2010.

14. Approval of Warrant Register Dated July 28, 2010.

Council Member Aguilar explained that the warrant pulled was for $16,000 for City Attorney fees to defend the City in the Foster Farms lawsuit against the City because of the water rate increase.

Mayor Pro-Tem Vierra commented the lawsuit that we are talking about is that 400 plus cities, 59 counties and 450 water districts are supporting this appeal by the City so something has to be right about this appeal or those people would not have given their support to the City.

Council Member Espinoza stated because “you guys requested it”

Motion: M/S Espinoza/Aguilar not to pay Warrant No. 70856. The motion failed to carry by a tie vote of 2-2, with Council Members Aguilar and Espinoza voting yes, and Mayor Varela and Mayor Pro-Tem Vierra voting no.

15. Resolution No. 2010-44 for Final Adoption of 2009-2014 Housing Element, Incorporating Minor Amendments, Including Minor Amendments provided by HCD.

DISCUSSION AND POTENTIAL ACTION ITEMS

16. City Manager Announcements and Reports

City Manger Warne reported that the B Street paving project will begin in the next week or so. That will be B Street running to Robin and also temporary sidewalk from Briarwood to Winton Parkway. He said the project is funded by a grant. City Manager Warne commented that we will shortly be installing the sod in the Parkside basin. He noted that PG&E hooked up power this week, so that project is also moving forward.

Mayor Varela mentioned the installation of sidewalks on Swan Street.

City Manager Warne said there are a couple of sections on Swan Street that are missing sidewalks and the City is in the process of installing those sections of sidewalk.

Mayor Pro-Tem Vierra asked on the B Street paving project, is there going to be any disruption to traffic and are they closing the street and having a detour. City Engineer Nanda Gottiparthy explained there will be some traffic rerouting. He said one lane will be open with a flag man. Traffic will be rerouted east or west.

Mayor Varela asked what the timeframe on that work is. City Engineer Gottiparthy replied the project is going to proceed very quickly. He talked to the contractor and they expect that the operations will be completed in about one week.

City Manager Warned commented that the City is working with PG&E on Park and Eighth Streets. He said the foam has to be moved and the power pole also has to be moved, so we are continuing to work on that with PG&E, He said the work is in process, but we really can’t finish that section until we get the power pole moved.

Mayor Varela said he wanted to correct the statement that Council Member Espinoza said that we asked Wal-Mart for millions of dollars, that is not true. As for Mr. Torres, in this past six months we had made every effort to join the Merced County Economic Development Corporation (MCEDCO). Mayor Varela said it is time to figure out how to bring economic development into our community. He knows that we have a couple of your men who are trying to draw business to our community. Mayor Varela said he would ask you to support NO on the recall.

ADJOURNMENT

The meeting was adjourned by consensus at 10:23 p.m.

_______________________________ City Clerk of the City of Livingston

APPROVED: November 16, 2010

_____________________________

Mayor or Mayor ProTempore

The written meeting minutes reflect a summary of specific actions taken by the City Council. They do not necessarily reflect all of the comments or dialogue leading up to the action. All meetings are digitally recorded and are an official record of the meeting’s proceedings. Digitally recorded verbatim minutes are available, upon request, and may be obtained at Livingston City Hall.

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