January 5, 2010 Minutes

(Note: For ease of finding and reading I have shown those sections of “How They Voted” In Bold.)

CLOSED SESSION/REGULAR MEETING

LIVINGSTON CITY COUNCIL

JANUARY 5, 2010

A Closed Session/Regular Meeting of the Livingston City Council was held on January 5, 2010, in the City Council Chambers with Mayor Varela presiding.

CLOSED SESSION 

Mayor Varela opened the meeting.

ROLL CALL

   Mayor Daniel Varela, Sr.                      

   Mayor Pro-Tem Frank Vierra

   Council Member Rodrigo Espinoza

   Council Member Margarita Aguilar

   Council Member Martha Nateras

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

The City 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. CV000292.

OPEN SESSION

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

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

CLOSED SESSION ANNOUNCEMENTS

Mayor Varela announced that there were no announcements from the Closed Session.

CHANGES TO THE AGENDA

None.

AWARDS, PRESENTATIONS, APPOINTMENTS AND PROCLAMATIONS

1.     Introduction of New Police Officer – Christopher King.

Mayor Varela introduced and welcomed Officer Christopher King, the City’s newest police officer.  He said that he attended Officer King’s oath-of-office ceremony. 

2.     Recognition of Connie Payan – Five Year Service Pin.

          Mayor Varela presented a five-year service pin to Connie Payan in recognition of her service with the City.  Connie Payan is an administrative analyst in the Public Works Department.  City Manager Warne expressed his appreciation for the outstanding work she does for the City.  He said that Connie Payan is the glue in the Public Works Department that holds everything together.  He hoped she would be here for another 25 years.  Connie Payan thanked everyone for her award.

ANNOUNCEMENTS AND REPORTS

     Supervisor John Pedrozo Announcements and Reports.

Mayor Varela said that Supervisor Pedrozo called him to inform him that he would be unable to attend the meeting this evening.

     City Council Members’ Announcements and Reports.

     Council Member Margarita Aguilar

·        Stated that it has been a pleasant year with issues that are going to continue for the

the next year with a more positive view.  She thanked all of those that have been supporting the City Council.  Ms. Aguilar has been on vacation and is back and happy to be here representing the citizens of Livingston.  She wished everyone a happy new year.

Council Member Rodrigo Espinoza

·        Wished everyone a happy new year and hoped that this year will be a lot better.  He hoped that more people will start attending City Council meetings.

     Council Member Martha Nateras

·        Wished everyone a happy new year.

·        Thanked the Livingston Police Department for the Toys-for-Tots event held on December 22.  She especially thanked Lt. Silva for doing an excellent job.  Ms. Nateras said that over 600 Christmas gifts were distributed to kids.  She assisted at the event and was impressed with how well it was organized.  The event was held at the Police Department so that people did not have to wait outside in the cold.

·        Reported that a Relay for Life meeting was held on December 15.  This year’s Relay for Life is planned for April 17.  She encouraged everyone to participate.  She said to call the City or Livingston High School for information.

Mayor Pro Tem Frank Vierra

·        Stated that he attended a League of California Cities’ function two weeks before Christmas.  Each of the City Council Members received an information packet and petition forms.  The petition is to place an initiative on the ballot to stop the State from robbing money from the cities.  Each year the State seems to think that the cities should contribute funds to support State government.  He urged the public to respond to requests from the City Council to sign the petition.  We need to get this initiative on the ballot so that we can keep the State Senate and the State Assembly from taking local tax revenues.

·        Reported that the Livingston High School Key Club conducted a food drive about four days before Christmas at Save Mart.  They were able to help six families in Livingston, one in family Cressey and several families in Atwater and Winton.  He said that the Livingston High School Key Club helped families in all four areas because it is sponsored by the Atwater Kiwanis Club and the Winton Kiwanis Club.  

·        Reported that the Livingston High School Key Club made a trip to the Rose Bowl.  He said 22 people on a bus of 47 people were from Livingston.  The Key Club went to Pasadena on December 30 to help decorate floats.  The kids are still talking about it today because it was such a great experience.  It was the first time on a bus for many of them.   

·        Thanked the Livingston Police Department for Toys-for-Tots and said he was happy to be a part of the event.

·        Stated that the Fire Department had Santa at the Fire Department again instead of taking him out to the community.  The response was larger this year than last year.  He again thanked the Fire Department for having Santa at the fire station and expressed a happy new year to everyone.

     Mayor’s Announcements and Reports.

     Mayor Daniel Varela, Sr.

·        Stated that he appreciated everyone in the community that provided service during the Christmas holidays. 

PUBLIC HEARINGS

3.     Resolution Conditionally Approving Site Plan/Design Review 2009-04 for the Dr. Singh Mixed Use Project.

          The agenda item was presented by Community Development Director Donna Kenney.

She stated that this is a resolution for the site plan/design review for the Dr. Singh mixed use project.  This item was continued from the last City Council meeting.       

Ms. Kenney stated that the project is a small two-story building on B Street.  The development consists of a dental office and a general use office planned for the first floor.  A residential apartment is planned for the second story.  There is also a court yard and a gazebo on site.  The parking is at the rear of the building along with the trash enclosure.  The site can be accessed from the alley behind the project.  She noted that, although the zoning is downtown commercial, there are residential units on both sides of the property and a residential unit on the opposite side of the alley. 


Community Development Director Kenney stated that the proposed building colors that were recommended by the Planning Commission were in the Livingston Downtown Design Guide for the downtown commercial area.  These colors were never officially adopted by the City Council, but were recommended by the Planning Commission.  Dr. Singh has chosen colors from the Livingston Design Guide.

          Community Development Director Kenney said the site plan is short some parking.  She said it is hard to determine how many parking spaces are needed for the project since we do not know the final uses of both offices, but at the last City Council meeting, the need for five additional parking spaces was discussed.  The City is allowed to charge a parking in-lieu fee for the parking spaces that the development is short.  Ms. Kenney said that the City Council decided to charge a one-time fee of $1,000 per parking spot on a previous application for a downtown project a couple of years ago.  Therefore, it was discussed by the City Council that this project would owe $5,000 for the amount of parking (five spaces) that they are short.  The money would be used to finance a future downtown parking structure that will be accessible to all the businesses.  The Planning Commission has voted to approve a conditional use permit (CUP) for the apartment.  Staff recommends approval of this project to the City Council.

          Mayor Varela opened the public hearing at 7:13 p.m.

Katherine Schell Rodriguez, P.O. Box 163, stated she thought mixed-use development is the way of the future.  More and more localities are starting to look at ways to revitalize downtowns by adopting a community based design, meaning that you have residences on top of businesses where people can live, shop, work and play.  Ms. Schell Rodriguez said she does not have anything against mixed-use developments.  We need to be looking at more mixed-use projects and looking at more ways to revitalize our downtown.  Our downtown should be a place where people want to be, not only from 8:00 a.m. to 5:00 p.m., but after 5:00 p.m.  We need a safe, family-friendly community based downtown, where people can work and live.

Mayor Varela closed the public hearing at 7:15 p.m. since there were no further comments from the public.

Council Member Aguilar thanked Dr. Singh for coming to the meeting.  She was able to walk around the project for about an hour and talk to some of the neighbors.  Council Member Aguilar said almost everyone was okay with the project and their only concern was parking.  She said we are a community where you have houses and businesses mixed into the downtown.  Council Member Aguilar added that most everyone was in favor of the project.  She said they are not here tonight, but the response she received was positive. 

Council Member Nateras said she is excited about the project.  She is the City Council liaison to the Planning Commission and was at their meeting when they discussed the project. 

Mayor Pro Tem Vierra asked if the City Council had settled on the in-lieu parking fee?

City Manager Warne stated that will have to be a part of the City Council’s motion.  He said the City Council has to make a decision on the in-lieu parking fee because this fee is determined at the discretion of the City Council.  City Manager Warne stated that the City Council set the fee at $1,000 per parking space for a previous development.

Council Member Espinoza commented that at the last City Council meeting Mr. Singh said that he was willing to pay $500 per parking space for the 10 parking spaces he is short.    He said it was his feeling that it was time for the City Council to decide this issue.  He would rather have a new building in the downtown than an empty lot.  Council Member Espinoza said this would be his motion unless you want him to wait for closing comments.

City Attorney Hobbs said that the resolution and the staff report sets the in-lieu parking fee at $5,000.  If the City Council is comfortable with that fee, a motion could be made to approve the resolution as presented.

          Motion:  M/S Espinoza/Aguilar to adopt Resolution No. 2010-1, Conditionally           Approving Site Plan/Design Review 2009-04 for the Dr. Singh Mixed Use Project.  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

City Manager Warne asked Community Development Director Kenney for clarification on the number of parking spaces Dr. Singh was short.  Ms. Kenney stated that the City estimated around 10 parking spaces.  Parking is calculated on the building uses, and we are not sure what the use of the general office will be.  

4.     City Council Guidance on Site Plan/ Design Review 2009-05 for Adding Composition Shingles to Parkside Subdivision’s Approved Materials.      

Community Development Director Donna Kenney presented this item.  This agenda item  involves the Parkside Subdivision, located just south of F Street and north of Peach Avenue, just off of the west side of Winton Parkway.  Vesting Tentative Map 2004-03 was approved by the City Council for 182 single-family homes.  The City Council also approved the site plan and design review in March of 2005.  A special site plan was approved for one house on a specific lot in October 2006.

Community Development Director Kenney said that the City recently received a complaint that the developer of Parkside Subdivision was installing asphalt composition shingles instead of tile.  She said that she reviewed the City Council minutes, conditions of approval and the development agreement (DA) in her investigation.  She said that, although there was nothing in any of these documents requiring a tile roof, the only roofing material submitted by the developer for approval was the tile.  The City Council did not review nor approve the asphalt composition shingles.  The easel contains a display showing the tile submitted by the developer in the initial site plan and design review.  Above them on the display are the asphalt composition shingles that the developer would like to use.  Both materials are very similar in color.  The developer has finished several houses using the asphalt composition shingles.  The Community Development Department has stopped him from installing additional asphalt composition shingles until the matter was resolved with the City Council.  He requested that the Community Development Department allow him to finish the houses under construction with the understanding that if the City Council did not approve the asphalt composition shingles, he would replace all of them with tile.  The street where the asphalt composition shingle roofs have been installed are on houses located on Tashima Drive and Tashima Court.  These streets are adjacent to the Country Glen Subdivision where asphalt composition shingle roofs have been installed on all of the houses.  Tashima Drive and Tashima Court act as a buffer zone between the two subdivisions and now has a mix of the tile and the asphalt composition shingles.  Staff is requesting that the City Council review the asphalt composition shingles and provide direction on whether to add the asphalt composition shingles to the approved materials for this subdivision.  City Council has a choice.  The City Council could (1) approve the use of asphalt composition shingles for the whole subdivision; (2) approve the use of asphalt composition shingles only for Tashima Drive and Tashima Courtor they could (3) deny the use of any asphalt  composition shingles everywhere in the subdivision. 

David Agee, representing K. Hovnanian Homes, stated that when the housing market slowed down two or three years ago, the company ceased construction operations in several communities.  The construction costs were high, sales were slow, and prices were falling.  In many communities they have been able to restart their construction activities by reevaluating their amenities such as installing asphalt composite shingles instead of tile.  This happened in several communities.  We have had a large turnover in personnel and nobody in the company thought that the company needed to come back for design review in order to use the asphalt composition tile.

Mr. Agee said that house prices are substantially lower than they were three or four years ago.  We are at the mercy of the market.  The goal of the company is to recover their costs and generate some cash.  The company is trying to keep people working by cutting costs.  K. Hovnanian Homes started constructing in Livingston in July and currently has six more pending building permits.  They want to keep building and are reevaluating their costs each month.  They hope that the City Council approves this additional roofing material so that they can keep building. 

          The Mayor opened the meeting for public comment on this agenda item at 7:29 p.m.

Community Development Director Kenney said that K. Hovnanian Homes is the only builder that is building in the City right now.

Dustin Ross, 428 Tashima Court, stated that he had just moved into a new house in July.  He said the builder did not allow him to upgrade anything.  He did not get the choice of tile or asphalt composition shingles, nor did he get the opportunity to pick the color of his cabinets.  Mr. Ross hoped that the City Council would vote to require tile roofs because they last longer.  He said that the older homes have tile roofs and the new ones have asphalt composition shingles.  This does not look good.  Our warranty guy said that the builder used the cheapest materials they could find to construct his house.  He would like a tile roof.

Kami Sikma, 375 Lilac Lane, asked when the park would be completed in the subdivision.  Mayor Varela said that the park is in the process of being worked on right now.  David Agee said that all of the materials to provide electrical service to the well house have been assembled in Fresno.  The contractor is arranging to pull permits and the installation should be completed by February.  The irrigation system can be completed at that time.  He said that it is his intention to complete the sod next spring or early summer.

          Mayor Varela said that this is a partnership where we come together to get things done.

Kami Sikma said, “So the time frame would be by the summer?”  The kids have nowhere to play.

City Manager Warne said that it was his understanding in conversations with the developer that they would get started as soon as the weather permitted work to be done.

David Agee said they are at the mercy of the weather.  They will plant the sod as soon as they can. 

Kami Sikma stated that she thought that the asphalt composition shingles looked horrible.  The entire subdivision needs to have the same standard.

Samuel Martinez, no address given, said that he favored the tile roofs rather than the asphalt composition shingle roofs.

Derek Padron, 405 Tashima Court, said that his family just moved into Parkside Subdivision and his house currently has the asphalt composition shingles.  He said that it looks like a rental community with both tile roofs and the asphalt composition shingle roofs.  He stated that tile roofs on all of the houses would make it look like part of Parkside Subdivision.  He added that he agreed with the other residents that tile roofs were the best way to go.

Griselda Ayala, 436 Tashima Court, said that the developer did not offer her the option of having a tile roof.  She said that she knew the economy was bad when she purchased her home.  She purchased the house for $153,000, even though she was approved to purchase a home for $180,000.  She would have chosen a tile roof had the developer given her that option.  She said that the asphalt composition shingles do not look nice.  She favors the tile roofs.

Maria Torres, 418 Tashima Court, said that she would like a tile roof like her neighbors.  She would have upgraded from an asphalt composition shingle roof to a tile roof had she been given the opportunity by the builder.  She said that she would like to see the park completed.  Ms. Torres said that she was told by the developer that the park would be completed very soon when she bought her house.

Council Member Aguilar said that there were some members of the audience that spoke Spanish that would like to address the City Council.  Mayor Varela (in Spanish) stated that the City Council was discussing the Parkside Subdivision roofs and asked if there was anyone in the audience that would like to comment.

Jose Valero, 429 Tashima Court, (in Spanish) stated that when he purchased his home, he was told by the developer that the park was going to be built right away.  The park construction has not started and it is very dark there at night.  He has the same opinion as his neighbors and thinks the builder should install tile roofs.  He also thinks that the builder should re-roof all homes that have asphalt shingles with tile shingles so that they all look the same.

Mike Torres, 1616 Eighth Street, asked how many homes are involved.  Community Development Director Kenney said that there are 13 homes with asphalt composition shingles and eight homes with tile roofs.  Mr. Torres said that some of these homes go back to 2006.  He asked how many more houses are left to be built in the subdivision.  Mr. Agee said that there are approximately 50 more houses to be built.  Mr. Torres thought that all the roofs should be tile for consistency.

          Mayor Varela closed the public comment portion of this agenda item at 7:43 p.m.

Council Member Nateras stated that two houses have a building permit with the same date.  One house has a tile roof and one house has an asphalt composition roof.  She asked Mr. Agee how he determined which material was to be used. 

David Agee responded that once a house gets past a certain construction stage, it is very difficult to provide upgrades.  However, if someone were to request an upgrade at the beginning of construction, this can be accommodated.  This is what comes to mind.  He did not know the exact situation for these two homes, but he offered to look into it.

Council Member Aguilar thanked the residents that came to the meeting and spoke on this issue.  She said that she talked to a number of residents and they were surprised that this was not an upgrade.  She felt for them because there were quite a few that were first-time homebuyers.  Council Member Aguilar said that she lives in one of those houses and you get what you pay for.  She said that she was disappointed that the builder was giving misleading information.  The park has been an issue for about 1 ½ years.  There should be a time period of when it should be done.  She said that the Development Agreement (DA) did not set dates for completion of the park.

Council Member Espinoza wondered why the developer did not come to the City Council when he wanted to shift from the tile roofs to the asphalt composition roofs.  He said that it should have come before the Planning Commission and the City Council before the shift was made by the developer.  The developer should have given the homebuyers the option of either tile roofs or asphalt composition shingle roofs.  He said that he knew that the sprinkler system has been installed in the park.  He has been asking the City Manager for two years when the sod was going to be installed.

City Manager Warne stated that he was not the City Manager when the Development Agreement (DA) for Parkside Subdivision was negotiated.  The people that negotiated the Development Agreement no longer work for the City.  Unfortunately, the Development Agreement (DA) did not include a certain date when the park had to be completed.  The City does not have a way to enforce the installation of the park sod.  This is the problem.  Staff has been working with Mr. Agee and he has given us his personal promise and assurance that as soon as the weather breaks, he is going to complete the installation of the sod in the park.  We have been talking to the developer about the sod installation and he promised to have it installed in October of 2009.  He did not do it and it is difficult to force him to do so when the Development Agreement (which was approved by the City Council) does not have a time line to complete the park.  City Manager Warne said that he knew Mr. Agee was a man of his word and he will get the park completed.

Council Member Espinoza said that he understood the situation with the economy.  He said that he has received complaints from people living in the subdivision about the park.  He thought that the sod should be installed as soon as possible.  The developer should have come back before the City Council before deciding to change from tile roofs to asphalt composition shingle roofs.

Council Member Nateras stated that she was the City Clerk when this item came before the City Council.  She said that the developer presented the housing project with tile roofs.  She agreed with the other members of the City Council that all the roofs in the subdivision need to be tile.

Mayor Pro Tem Vierra said that he was on the City Council when this project was approved.  He said that the reason for the tile roofs was to protect the homes in case of fire because the homes were built so close together.  Tile roofs are safer than asphalt composition shingle roofs.  There is a big difference between the tile and the asphalt composition shingle roofs.  In addition, the tile makes the home look more valuable.  He felt that the developer should have brought this item back to the City Council before proceeding with the change. 

Mayor Varela said that this is a working relationship with the City, developer and citizens.  There should be uniformity and conformity within a subdivision.  This is what sells the house.  He wished the developer would have approached the City and the citizens in advance before proceeding unilaterally and making a change in the roofing material.  He knows that these are hard economic times.  Mayor Varela said the park issue has been going on for a couple of years.  He received calls from City Council members and a couple of calls from citizens this summer about the park.  The City has to work with developers within the constraints of the Development Agreement (DA).  He is happy to report that the City is working with Mr. Agee to get the sod installed in the park.

Motion:  M/S Vierra/Nateras to adopt Resolution No. 2010-2, Denying Site Plan/Design Review 2009-05 for the Parkside Subdivision, denying the request to add asphalt composition shingles to the list of approved roofing materials and requiring all houses on Tashima Drive with asphalt shingles to be re-roofed with tile.  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

5.     Memorandum of Understanding between the Merced Union High School District and the City of Livingston Regarding the Deferral of Improvements to Peach Avenue.

City Attorney Hobbs stated that he had an announcement to make on behalf of Council Member Nateras and Council Member Vierra.  Both of these City Council members are employed by the Merced Union High School District.  State law does not require them to disqualify themselves from this matter.  Their employment does not involve them in this matter for the School District and, therefore, they are not required to disqualify themselves from this agenda item.

Council Member Vierra said that he checked with his personal attorney and discussed the matter with City Attorney Hobbs.  Both of these attorneys concur that he does not have a conflict of interest on this agenda item.  He has no children or relatives attending Livingston High School and he will receive no compensation from the Merced Union High School District for making a decision on this item. 

City Manager Warne said that this is not a new issue.  It has been an issue that has been festering and discussed by the City Council for seven years.  There have been numerous City Council meetings regarding the various alternatives and numerous meetings where public comments have been taken.

Merced Union High School District purchased 19 acres of property on the south side of Peach Avenue for the expansion of their high school facilities.  The issue is what to do with Peach Avenue.  At the January 20, 2009, City Council meeting, the City Council voted to eliminate the closing of Peach Avenue as an alternative, leaving three alternatives for dealing with Peach Avenue.

The first option is to close Peach Avenue and re-route the street along the south side of the 19 acres owned by Merced Union High School District as shown in the staff report and on the slide.  This would require the acquisition of land on the east side of Seventh Street and also on the west side of Main Street.  Currently, there is not a willing property seller on the west side of Main Street.  Should the City and the Merced Union High School District choose this option, the City would need to acquire the property using eminent domain.  Staff does not favor using eminent domain in the property acquisition process.  This option is also the most expensive of the three options.

The second option was favored by the Merced Union High School District when they completed their original California Environmental Quality Act (CEQA) document for the Livingston High School expansion.  This option would raise Peach Avenues o that there would be a concrete underpass that would permit children to pass to the high school property south of Peach Avenue.  The concrete structure will be very expensive.  The other problem with this option is that the elevated street precludes left and right hand turn lanes into the Merced Union High School District property.

The third option is to expand Peach Avenue and to build the street to its ultimate 86-foot right-of-way which would include a 16-foot median turn lane.  The street could be striped so that there would be a travel lane in each direction, along with a bike lane and a landscaping strip.  You could also re-stripe the street so that you could have two travel lanes in each direction. 

Mayor Varela and City Manager Warne have had numerous meetings with the staff and members of the Merced Union High School District Board of Trustees.  There appears to be a growing consensus that a modified option 3 would resolve this long standing issue.  The law does not permit the school and the City to make any final decision regarding the improvements to Peach Avenue or enter into any formal agreements until the California Environmental Quality Act (CEQA) document is completed.  However, the City and the Merced Union High School District can enter into an agreement on the project description for the California Environmental Quality Act (CEQA) document.  The proposed project description as a modification of option 3 includes the following:

1.  Improve Peach Avenue consistent with the City’s standards and General Plan to the reasonable satisfaction of the City Engineer and as depicted in Exhibit “B” of the Memorandum of Understanding (MOU).  Such improvements to Peach Avenue shall be substantially completed on or before the date the District’s improvements, as described in Exhibit “C” of the Memorandum of Understanding (MOU), are complete.

2.     Construct a pedestrian bridge over Peach Avenue, centrally located between Main Street and 7th Street with the proceeds from the final sale of bonds from Measure M General obligation bond of 2008.  Currently, the final sale is projected to occur no later than 2026.

3.     Construct a crosswalk across Peach Avenue with a pedestrian-activated traffic signal or flashing red traffic light (or multiple red traffic lights, if deemed necessary by the City) or other light as approved by the City Engineer and with lights imbedded in the asphalt of the crosswalk which flash when activated by a pedestrian, which shall be substantially completed on or before the date the District’s improvements to the District property are complete.  The crosswalk improvements shall include all necessary signage and striping per the California Manual on Uniform Traffic Control Devices.

4.     Paint all curbs red on both sides of Peach Avenue between Main Street and 7th Street and include appropriate signage designating this section of Peach Avenue as a no parking zone on or before the date the District’s improvements to the District property are complete.

5.                   Construct an 8-foot, non-climbable wrought iron fence on top of a brick or concrete base along the entire length of the south side of Peach Avenue between Main Street and 7th Street, except at the crosswalk location, on or before the

date the District’s improvements to the District Property are complete.

6.     Construct a locking gate at the entrance of the parking lot on Peach Avenue that will remain closed except during the starting and ending times of Livingston High School when school is in session.                                        

7.     Dedicate right-of-way for a 110’ wide 4-lane Minor Arterial for Main Street/Lincoln Boulevard as required per the City of Livingston Traffic/Circulation Master Plan.  All improvements fronting the school property including roadway widening, curb, gutter, sidewalk, street lights, landscaping and required transitions for the roadway at the north and south boundaries of the District property shall be completed on or before the date the District’s improvements to the District property is complete

Staff recommends that the City Council approve this Memorandum of Understanding (MOU) so that the California Environmental Quality Act (CEQA) document can be prepared and a final agreement entered into between the City of Livingston and the Merced Union High School District.

          Mayor Varela opened the meeting for public comment at 8:04 p.m.

Mike Torres, 1616 Eighth Street, asked if there were going to be any sewer improvements or parking improvements as part of the Livingston High School expansion.  He said that there is always a traffic jam along Peach Avenue as parents drop off and pickup their children before school and after school. 

City Manager Warne referred the question to Michael Belluomini, Director of Facilities Planning for the Merced Union High School District.   

Michael Belluomini, Director of Facilities Planning for Merced Union High School District, 3430 A Street, Atwater, stated that the widening of Peach Avenue is part of a larger project that involves the construction of a parking lot with 230 parking spaces south of Peach Avenue.  Although the School District intends to keep those same driveways open on Peach Avenue, the School District expects that most student traffic and parking will occur in the new parking lot on the south side of Peach Avenue.

Mike Torres asked about the driveway location for the cafeteria trucks.  Mr. Belluomini responded that the widening of Peach Avenue will require the driveway to be relocated for cafeteria truck loading and unloading.  The plans are still in process, but the current thinking is that the trucks will back into the cafeteria from the school property.

Mike Torres asked if there would be bus loading and unloading on Main Street.  Mr. Belluomini said that he did not know.  Mike Torres asked if there was going to be a 10-foot landscape strip and sidewalk.  City Manager Warne said that these improvements would be included in the project.

Mike Torres asked how the crosswalk lights would be activated.  City Manager Warne said that they would be pedestrian-activated lights in the sidewalk and on a free-standing sign.

Mike Torres asked about the storm water pump near Seventh Street.  City Manager Warne responded that it would have to be taken into consideration as the street project is designed.  The City will review the design before any construction takes place. 

Katherine Schell Rodriguez, P.O. Box 163, stated that this issue has been going on for a long time.  We have finally come to the point where both the City and the Merced Union High School District have come to an agreement.  Some of the details of a final agreement will still need to be worked out, but this Memorandum of Understanding (MOU) takes a number of options off the table.  Approval of this Memorandum of Understanding (MOU) means that Peach Avenue is not going to be closed, nor is the City and the School District going to construct an underpass.  It also means that the street is not going to be re-routed to the south and take Mrs. Ow’s land.  Minor issues can be addressed later.  The basic scope of work is included in the California Environmental Quality Act (CEQA) description contained in the proposed Memorandum of Understanding (MOU).  If the City Council rejects this Memorandum of Understanding (MOU), it means that Merced Union High School District has to go back and come up with something else for the City Council to consider.  We need to get on with this project.

Polly Ow, 1324 Peach Avenue, stated that she did not want Peach Avenue to be re-routed through her property.  She has owned the property for more than 30 years and does not want to sell the property.  The property is zoned commercial.  She has worked too hard to not have her dreams come true.

 

Mayor Varela closed the public comments portion of this agenda item at 8:14 p.m.

Mayor Pro Tem Vierra said the current situation with the cafeteria trucks entering and exiting Peach Avenue must be addressed.  The traffic is horrible when the cafeteria delivery trucks are parked on the street.  People coming west cannot get through in the morning.  We need to tell parents when this project is finished that they need to pick up and drop off their children in the new parking lot.  Right now they are parking on the street, in the driveway and in front of the gym.  It is a horrendous thing in the morning and almost as bad in the afternoon.  He said that the Merced Union High School District needs to address this problem.

Michael Belluomini said he would make a note of the problem.  Mayor Pro Tem Vierra invited Michael Belluomini to come to Livingston High School in the morning to observe the problem.  

Council Member Aguilar agreed with Mayor Pro Tem Vierra.  She was concerned that the pedestrian bridge might not be built until the year 2026.  Traffic is going to increase with time and she wanted to know if the pedestrian bridge could be built sooner if the traffic went to Level D.  She thought that the construction of the pedestrian bridge in the year 2026 was too far away.

City Manager Warne said that Level D is the worst traffic.  He said that the Memorandum of Understanding (MOU) was self-executing.  This means that the final sale of the bonds is going to take place when there are sufficient property tax valuations and property tax revenues to support the bond sale.  Traffic will only increase if development and property tax valuations and revenues increase.  The final bond sale could be as far out as 2026, but it could take place in 2018, 2016, or sooner if there are sufficient property tax revenues to issue the bonds.  In these cases the pedestrian bridge will be built sooner, if there is a lot of development earlier than projected, the School District will issue the bonds sooner because it will have the bonding capacity to do it.  The Memorandum of Understanding (MOU) addresses the issue Council Member Aguilar is raising.  It is self-executing because the pedestrian overpass would be built sooner if there is more development because there would be more property tax.

Council Member Espinoza said that the City Council has already approved a housing development on 40 acres.  We could see another 300-500 homes in another ten years south of Peach Avenue.  This will increase the number of cars in front of Livingston High School.  He would like to see the pedestrian bridge built before 2018.

Mayor Varela said that if a developer came in with 300 homes, it would make the Merced Union High School District very happy.  They could issue the bonds earlier, and build the pedestrian bridge sooner.  This would make the City of Livingston happy.  It all works together.  When the economy gets better, development increases, taxes increase, School District bonding capacity increases and the pedestrian bridge gets built sooner.

Mayor Pro Tem Vierra agreed and said that if development starts, then more taxes will come into the coffers of the Merced Union High School District.  Additional tax dollars will allow the pedestrian bridge to be built sooner.  He said that he talked to a lender and they feel that things are going to start changing next year or the following year.

City Manager Warne stated that approving the Memorandum of Understanding (MOU) is moving towards approving the modified option 3.

Motion:  M/S Varela/Vierra to approve the Memorandum of Understanding Between the Merced Union High School District and the City of Livingston Regarding the Deferral of Improvements to Peach Avenue.  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

CITIZEN COMMENTS

Ms. Mercedes Millan, 1069 Olds Avenue, expressed concern about children not finishing high school.  Livingston’s future is our children.  If you want to make a better future we need to be concerned about our children.  It is not a beautiful community if our children are not graduating.  Let us start with our children.  Sometimes it is the parents’ fault because they are not present in the home. 

Council Member Espinoza stated that he thought that City Council should communicate more with the School District.  He thought there should be more after-school education to help more students graduate.  Some students graduate from the eighth grade, but do not graduate from high school.  We have no say in how the schools are run in Livingston.  Maybe we can talk to the teachers.

Ms. Millan said that things are not working.  There were three fights on Main Street last week.  The kids are getting involved with bad people.  Council Member Espinoza said that the City needs to have more recreation programs for its kids and the School District needs to have more education programs for the kids.

Warren Urnberg, 1331 Eighth Street, asked about the status of the City house and the payment of the water, sewer and garbage bills.  He also asked about the hiring of the new Police Chief.  Who is on the board for the interviews?  Are you authorized to give out this information?  Council Member Espinoza said that he requested a list of people who applied, but has not received it.  He wondered if it had been narrowed down to a few people.  Assistant City Manager/Finance Director Vickie Lewis said that she told Council Member Espinoza that the recruitment is being handled through an executive search firm and the City did not have any applications.

Council Member Aguilar said that she is requesting that the lease for the City house be placed on the next City Council agenda.  City Attorney Hobbs said that he had reviewed the lease and can give the City Council an update if necessary.

Gerri Martin, no address given, read some quotes from the Farm Bureau lawsuit.  This is vindication for them.  The City of Livingston’s management and their elected officials wasted thousands of dollars defending this General Plan.  They refused to listen to us and the arguments that we made during this General Plan process. They went against the recommendation of their own Planning Commission.  They were told by the Farm Bureau they were going to be sued.  In their arrogance the City Council still passed that plan 5-0.  Citizens said the same things that were said in this ruling.  Our lawyer called and said it was the sweet end to victory.  The City Council voted 5-0 to pass that crazy General Plan.  Two of you still sit on this City Council and one now sits on the Planning Commission.  The legal fees are on you.  They are the fault of the management and the City Council that passed them.

Luis Flores, 707 Almondwood, asked if the Mayor had anything to report from the Merced County Association of Governments (MCAG).  Mayor Varela responded that he had nothing to report.  Luis Flores said the “Welcome to Livingston” sign was missing the Spanish portion.  Mayor Varela thanked him for letting the City know about the problem.

Katherine Schell Rodriquez, P.O. Box 163, said that speaking of City Council 3-2 votes, 5-0 votes, and who voted on what and when, she just posted how each member of the City Council voted for 2008 on her blog–the Gardening Snail.  Go to her blog and type in “how they voted 2008” and you will see a page that will let you know.  Tomorrow she is going to start on how they voted 2009.  She will continue tracking how City Council members voted as long as she has breath and fingers that can type on the keyboard.

CONSENT CALENDAR

     Mayor Pro Tem Vierra read the Consent Calendar.

6.  Approval of Minutes of Meeting Held on October 20, 2009.

7.  Approval of Warrant Register Dated December 9, 2009.

     8.  Approval of Warrant Register Dated December 17, 2009.  

9.  Approval of Warrant Numbers 68840 ($65,445.02 – Legal Services), 68984 ($43,791.94 – Legal Services), 69096 ($6,637.50 – Police Recruitment Services), 69181 ($81,791.36 – Legal Services), and 69266 ($5,103.36 – Police Recruitment Services).

     Council Member Espinoza requested that Warrant Numbers 69438 and 69428 from the     December 17 Warrant Register be pulled for a separate vote.

     Motion:  M/S Vierra/Varela to approve Consent Calendar items 6, 7 and 8.  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

     Motion:  M/S Espinoza/Aguilar to not pay Warrant Numbers 69438 and 69428.  The      motion failed on a 3-2 vote, with the City Council Members voting as follows:

          AYES:                  Council Members:        Aguilar, Espinoza,

          NOES:                 Council Members:        Nateras, Varela, Vierra

          ABSENT:  Council Members:        None

     Mayor Pro Tem Vierra said some of the legal fees have City Council Members’ names next to them and they just voted not to pay the attorney.  It does not make sense to him.

     Council Member Aguilar said that several meetings ago she asked just to separate the Foster Farms bills from the other legal bills.  Mayor Varela told her to pull the entire warrant.  Mayor Pro Tem Vierra said that he did not understand if a member of the City Council incurred the expense, why he or she would then vote against paying for the service.

     Council Member Espinoza said we do not have another attorney.  We have to use this attorney.  We are being harassed for voting against his bills.  If Mayor Pro Tem Vierra had been to the last meeting, the bills would have been paid.

     Mayor Varela said that we need to move forward and not regurgitate the issues from last year.  Council Member Espinoza said that he is being criticized.  We should just vote and there would be no problems.

     Council Member Nateras said that the warrants that Council Member Espinoza and Council Member Aguilar are voting not to pay are for the Foster Farms lawsuit.  Do we have control over this?  They are suing us, we are not suing them.  Should we not have an attorney defend us? 

     City Attorney Hobbs said that the City Council is not legally authorized to represent itself.  You would need an attorney to defend you even if it was not my firm.

     Council Member Nateras asked what is the purpose of voting against paying the attorney if it is something we are required to have because someone is suing us and the service has been rendered.  Council Member Espinoza said that the current City Attorney was hired illegally.  He has no problem with him personally.  Members of the City Council used him before he was hired by the City. 

     Mayor Varela said that the seeking of legal advice falls within the rights and prerogatives    of the City Council Members.  City Attorney Hobbs was not hired illegally.  City Council Members requested a legal opinion from an attorney the City Council had already voted to retain and had a legal contract with.  This is already done and voting not to pay the attorney creates on-going costs, is detrimental to the process and works against having a unified body.  Voting not to pay someone just creates more costs.

     Mayor Pro Tem Vierra said that the City has a City Manager form of government.  It is his job and not the City Council’s job to hire the Police Chief.  He thought it was wrong not to pay the executive search firm that many on the City Council voted to hire.

     Motion:  M/S Vierra/Nateras to approve Consent Calendar Item #9 and approve Warrant          Numbers 69438 and 69428.  The motion passed on a 3-2 vote, with the City Council   Members voting as follows:

          AYES:        Council Members:        Nateras, Varela, Vierra

          NOES:       Council Members:        Aguilar, Espinoza

          ABSENT:  Council Members:        None

DISCUSSION AND POTENTIAL ACTION ITEMS

10.     Introduce and Waive First Reading of an Ordinance of the City Council of the City of      Livingston Amending Title 2 (Government Organization) Chapter 3 (Citizens’ Service      Committee) of the Livingston Municipal Code Relating to the Organization and Duties      and Responsibilities of the Citizens’ Service Committee.

City Manager Warne said that this ordinance amendment was prepared at the request of City Council Member Martha Nateras.  The City currently has a Citizens’ Advisory Committee (CAC), whose duty is to advise the City Council, but whose activities have been characterized by attacks on elected officials, Planning Commission members, and citizens.  The ordinance amendment creates a more service-oriented committee that will contribute to the improvement of the community.  The ordinance amendments are indicated by cross outs, underlined and italicized words, phrases and sections.  We are here tonight to have you consider the introduction and first reading of the ordinance amendment, and take any comments you might have. 

Mayor Varela said that there are a few projects he thought the new Citizens’ Service Committee should consider, including a floral festival and a downtown arts festival.  When he was on the Citizens’ Advisory Committee (CAC), there was a discussion about having a founder’s day celebration.  The Citizens’ Service Committee provides our kids with the opportunity to be involved in a positive way while giving adults an opportunity to mentor younger kids.  It will bring good things to our community  He said that he talked to one of the directors of the arts festival in Merced and she got so excited about this Citizens’ Service Committee that she gave him a number of names of people that could come here and be involved.   The Citizens’ Service Committee could organize a wine and cheese festival similar to the one they have in Riverbank.  We need to start thinking about these things in our community.

Council Member Nateras agreed with Mayor Varela.  She remembers when Livingston had a Sweet Potato Festival and she would like to see that come back.  The kids and the farmers could promote their produce.

Mayor Pro Tem Vierra said that the terms of the committee expire all at the same time.  He suggested staggering the terms so that everyone’s term did not expire at the same time.  When you get rid of everybody at the same time, things fall apart.

City Manager Warne said that all City committee members’ terms, with the exception of the Planning Commission members, expire on January 31 after the election every two years.  We have not changed this policy.  If the City Council would like to have staggered terms for all of its committees, it could give staff direction to prepare ordinance amendments to make the change.

Council Member Nateras asked if we could start recruiting before their term is up and see if they are interested in continuing to serve.  City Manager Warne said that it is up to the City Council to decide what they want to do.

Mayor Varela asked if the City Council could modify this provision prior to adoption.  City Attorney Hobbs said that any substantive changes must be made tonight.  At the second reading of the ordinance, the only changes that can be made are minor changes such as technical changes, grammar, spelling and things of this nature.  You can make major changes tonight, or you can direct staff to rewrite sections and bring it back again for first reading.

Mayor Varela stated that he thought the terms of the committee members should be staggered.

Mayor Varela opened this item for comment from the public.

Luis Flores, 707 Almondwood, said that he was against the ordinance changes.  He said the ordinance states that there is no fiscal impact when many of the activities of the committee are very expensive.  Where is the Citizens’ Service Committee going to get the money to do all of these things?  He said that the Citizens’ Advisory Committee (CAC) had two members that lived outside the City, but this clause has been removed from the proposed ordinance.  Why exclude them?  Why not give committee voting rights to 18 and 19 year olds?  If they can vote for the President of the United States, why not allow them to vote on the City Service Committee?  Why should we allow youth members from only Livingston High School and Livingston Middle school?  Some people may want to be on the committee and may be going to college.  He has a lot of questions about what types of majorities would be required.  Is it a simple majority or super majority?  Mr. Flores said that this committee is like another Kiwanis Club.  We should be supporting other things.  The wine and cheese events are already sponsored by the Court Theater Committee.  He thought the Mayor was out of touch.  He is against the committee.  How are you going to get 18 members?  He stated that there is no budget for the committee.

City Manager Warne responded that the ordinance itself has no fiscal impact.  Projects chosen by the Citizens’ Service Committee will need to come before the City Council for approval.  These proposed projects will have a staff report and a fiscal impact.  This is why the fiscal impact of the ordinance is zero.  The number of committee members is 11, the same number as was on the Citizens’ Advisory Committee (CAC).  People have suggested that the City add youth members to the committee so that young people can be involved.  The ordinance provides for up to seven non-voting youth members, ages 12-19, from the student body from Livingston High School and Livingston Middle School.  Once a person turns 18, they can be regular voting members of the committee.    

City Attorney Hobbs stated that this is a City committee and its activities would be governed by the Brown Act.  Therefore, all Citizens’ Service Committee actions would be by majority vote.  He said the City Council can decide if it wants to appoint committee members that live outside the City.  He said that the appointment of committee members from outside the community was highly unusual based on his experience.  

City Manager Warne stated that he thought that the Citizens’ Service Committee provides residents an opportunity for service.  He thought it was a good idea and would move the City away from the unproductive, destructive and wasteful activities of the Citizens’ Advisory Committee (CAC).  He encouraged the City Council and the entire community to work together.  The Citizens’ Service Committee allows this to occur.  Subcommittees of the Citizens’ Service Committee could be created to work on particular projects and activities.  There is no limit to what can be done.  This is a positive step for the community.  The way the Citizens’ Service Committee is structured is similar to the other committees organized by the City Council.

Council Member Nateras told Mr. Flores that the Citizens’ Service Committee could assist the Livingston Community Network with the Multi-Cultural Festival.  She also told Mr. Flores that the City does not have a Kiwanis Club.

Council Member Aguilar asked Council Member Nateras how she arrived at the duties of the Citizens’ Service Committee as outlined in Section 2-3-6 of the ordinance.  She agreed with Mr. Flores and asked where the money was going to come from?  We have trouble getting individuals to apply for the Planning Commission and Parks and Recreation Commission.  She asked Council Member Nateras how long it took her to sit with the City Manager to come up with these ideas.  She thought Mayor Varela’s comments were good, but she thought we need to focus on planning and recreation.

Council Member Nateras said that she talked with the City Manager about changing the focus of the committee.  It was put on hold when the water rate issue came up.  City Manager Warne said that he listened to various City Council members and drafted the ordinance for City Council consideration based upon their input.

Council Member Aguilar asked if Council Member Nateras passed it over to the City Manager and he put everything together for her.  Council Member Nateras responded that she went over the Citizens’ Advisory Committee ordinance and made a few changes. 

Council Member Aguilar asked City Attorney Hobbs if the youth committee members could talk about issues before the Citizens’ Service Committee outside the public meeting without violating the Brown Act.  City Attorney Hobbs said that they could talk about it because they were non-voting members.

Council Member Espinoza said that it appears that this Citizens’ Service Committee ordinance is a done deal.  He said that he was on the Citizens’ Advisory Committee before he was on the City Council and there were no problems.  New people were later appointed a few years ago and everything the committee did was negative.   The Citizens’ Advisory Committee spent their entire time attacking the City Council.  It was nothing more than a “hanging party.”  It does not matter who is there.  He said that he supports any committee that will help the City move forward.  He would support this ordinance, but he does not think it was done the right way.

Council Member Aguilar asked if there were going to be written minutes of the meetings of the Citizens’ Service Committee.  City Attorney Hobbs stated that the Citizens’ Service Committee is governed by the Brown Act.  All meetings must be open to the public and there must be (at least) action minutes of the meeting.

Council Member Nateras said that this is no different from the current practices of the Citizens’ Advisory Committee (CAC).

City Manager Warne stated that the legal requirements of the law as outlined by City Attorney Hobbs governs how all of our committees operate.  An agenda is prepared and posted in accordance with the Brown Act.  All meetings are open to the public and the minutes are taken by a committee member.  The quality of the minutes vary depending on the skill of the particular person taking the minutes.  We have a staff member and a City Council liaison attend all committee meetings.

Council Member Nateras stated that Council Member Espinoza felt that the Citizens’ Advisory Committee was mean-spirited.  She said that she only attended two of the meetings and came away feeling that the Citizens’ Advisory Committee (CAC) had no mission or goals.  All she heard were complaints.  This Citizens’ Service Committee would be better for our community.

City Attorney Hobbs suggested that the City Council include a provision in their motion to provide for staggered committee terms, if that was their desire.  He suggested that the City Council may want to consider appointing half of the committee members for a two-year term and half of the committee members for a four-year term.

Council Member Nateras asked how would the City Council determine which committee members had which terms?  City Attorney Hobbs stated that the City Council would determine the term length when they appointed the members of the Citizens’ Service Committee.

City Manager Warne said you could also appoint some for a one-year term, some for a two-year term, some for a three-year term and some for a four-year term.  City Attorney Hobbs said that the City Council has two or three options to consider. 

Council Member Aguilar said she was concerned about prohibiting people living outside the City from serving on the committee.  She has a couple of students that live outside the City limits that attend the high school.  Would these students be prohibited from being on the Citizens’ Service Committee?  Council Member Nateras said that she would not have any problem with having student members that live outside the City limits.

Mayor Varela said that if we have a young person that makes a three-year commitment to the committee, we are not going to exclude them when they turn 18 or 19.  City Attorney Hobbs stated that if this is the case, the City Council could leave the language as currently written on the proposed ordinance.

Council Member Aguilar asked, “what if you had a high school drop out that wanted to be on the Citizens’ Service Committee?”  City Attorney Hobbs said that they would not be eligible to be on the Citizens’ Service Committee.

Council Member Vierra said that the only two additions to this ordinance are to allow two regular members to be selected from outside the City limits, and to allow students living in the unincorporated county to be on the committee if they are attending Livingston High School or Livingston Middle School.  City Attorney Hobbs said the City Council also needed to resolve the issue of the staggered terms of committee members.

Motion:  M/S Nateras/Vierra to Introduce and Waive First Reading of an Ordinance of the City Council of the City of Livingston Amending Title 2 (Government Organization) Chapter 3 (Citizens’ Service Committee) of the Livingston Municipal Code Relating to the Organization and Duties and Responsibilities of the Citizens’ Service Committee with staggered committee member terms, with half of the initial terms to be two-year terms and half of the initial terms to be four-year terms.   The motion passed on a 3-2 vote, with the City Council Members voting as follows:

          AYES:   Council Members:  Nateras, Vierra, Varela

          NOES:   Council Members:  Aguilar, Espinoza

          ABSENT: Council Members:           None

11. Resolution of the City Council of the City of Livingston Establishing a Policy Regarding      Attendance at City Council Meetings by Members of the City Council.

City Manager said that this resolution has been prepared at the direction of the City Council at the last meeting.  Staff received direction from the City Council to prepare a resolution that stated that a City Council member would not be paid if he or she missed a meeting regardless of the circumstances.  City Attorney Hobbs said that the deduction of pay is proportional to the number of meetings missed during the previous month.

Mayor Varela said that he dedicates two days a week (Wednesday and Thursday) to the City of Livingston.  He drives around with the City Manager visiting project sites and meeting with the public, including business owners and people that have concerns.  He stated that he gets all kinds of phone calls during the week outside regular City Council meetings.  These phone calls include everything from a child out of control to issues with the Police Department.  As the Mayor, he also attends meetings in Livingston, Atwater, Merced and in other places to meet with other leaders and representatives from State and County organizations. 

.         Mayor Varela said that being a Mayor or City Council Member is more than attending a City Council meeting on the first and third Tuesday.  Everyone on the City Council does something in their capacity as community leaders.  That is a positive thing for the community, whether they are helping people in need, meeting with young kids or putting on a young women’s’ conference.  Our work does not begin and end here at City Council meetings.  We are bringing great things to the community.  The Merced County Times newspaper had an article about the Mayor and the City Manager talking to people at the University about solar power.  We are one of the cleanest towns in the county.  We are trying to bring positive and great things to the community. 

          Mayor Varela stated that he has not missed a meeting since he was elected and does not intend to miss any meetings.  But if he has an emergency, he does not want his absence to create a political issue.  It should not be a political issue because he has demonstrated his commitment to the community.  Some City Council Members have missed a few meetings in the past due to medical or family issues.  Let us not make this a political issue.  It is 2010.  We are moving forward and that is what the City of Livingston needs to be known for.  We need to be known for positive things such as approving a dentist office.  We need to change the perception of Livingston.  The newspaper is ripping the City every month.  We have been recognized for having the best streets in town.  We have been recognized by the Merced County Association of Governments (MCAG) for the sidewalk and street grants.  Many good things are happening and this is what Livingston should be known for, not withholding the pay of the City Council member because he or she did not attend a City Council meeting.  Let us not make this political.  Not everything is politics.  Mayor Varela concluded by saying that he does not support this resolution.

Council Member Aguilar thanked the Mayor for everything he said and agrees with him.  The issue was brought up because citizens had approached her about City Council attendance and cancelled meetings.  She asked the City Manager to work on this issue.  The resolution before the City Council states that a City Council Member would not be paid if they failed to attend a meeting for any reason.  She thought that there should be an exception for family deaths, hospitalization and other critical moments.  He also thought that a City Council member should be paid if a meeting was cancelled.  She said that she got the resolution after she returned from vacation and does not agree with what is contained in it.   We need to be a little bit more responsible for our actions.  Anything done by a member of the City Council outside the meeting should come from the heart.  She would serve on the City Council at no cost.  If a Council Member is being paid $300 per month, they should be at City Council meetings.  You were elected by the people.

Council Member Nateras asked if the resolution applied to the closed session or just the regular meeting.  City Attorney Hobbs said that the way this is drafted, it applies to closed session as well as the open meeting.  If you were there for part of the meeting, you would be paid.

Council Member Nateras said that she thought this was brought up because she was not at the last City Council meeting.  She said that she has missed a total of three meetings since she was elected.  The first time was when her mother-in-law died, the second time was when her niece graduated and the third time was when she had to take her father to the hospital.  She stated that Council Member Aguilar had missed some regular meetings as well as closed sessions.

Council Member Aguilar said she missed one special meeting that was designated for Planning Commission interviews.  She said she also missed one closed session when the City Attorney’s contract was discussed, but she was at the open meeting.

Council Member Nateras said that attendance has never been an issue.  Council Member Espinoza has missed three regular City Council meetings when there were important issues to discuss.  Council Member Nateras said that she takes her responsibilities seriously and has only missed a meeting when she had to miss it.

Council Member Espinoza said that everybody misses a few meetings, but the issue came up when the 500-600 citizens requested the whole City Council be at a meeting on November 4, 2009, to talk about water rates.  He told Council Member Nateras that she should have been at the meeting.  He went to the meeting because the citizens requested it.  He thought that Council Member Nateras should have been there.

Council Member Nateras reminded Council Member Espinoza that the November 4 meeting was not a regular City Council meeting.  She told Council Member Espinoza the reasons why the meeting could not be held.   It did not have an agenda and we were not required to be there.

Council Member Espinoza said that some citizens came to him and requested that he attend the November 4 meeting.  He was there.  Council Member Espinoza said that he has missed three or four regular City Council meetings.  He said that he is not trying to attack Council Member Nateras for missing meetings.  Ever since the new water rates have been adopted, City Council meetings have been cancelled.  The citizens have requested this item be placed on the agenda.  Mayor Pro Tem Vierra missed two meetings.  Many people in town were there at the November 4 meeting.  He just wanted to bring this up. 

          Mayor Varela opened up this agenda item for public comment at 9:30 p.m.

Katherine Schell Rodriquez, P.O. Box 163, stated that she has heard a lot about the meeting held on November 4.  It was not a City Council meeting.  She checked her notes and when the meeting was set, it was subject to the City being able to get the Portuguese Pentecost Hall that would hold 800 people.  The hall was not available and the meeting could not happen.  The City set up the meeting for November 17, 2009.  They arranged to have people translate the meeting in Punjabi and Spanish, and had the technical equipment so that these translations could be broadcast to people with headphones.  The City made it possible for the people to hear the meeting in their own language.  If more than three City Council Members had shown up for a meeting on November 4, they could not have said anything about the water issue because it would have been a violation of the Brown Act.  How do you think it would have been to have a room filled with 400 people or more, and no member of the City Council saying anything because they could not do so legally?  It would not have been pretty.  She now hears many negative things about the November 4 meeting (that was not a legal City Council meeting), but not one positive thing about what happened at the November 17 meeting.  This was the first in the history of the City of Livingston where we had two translators and where we had the equipment where people could listen in their own language.  This has been forgotten.  She thought that City Council members that missed closed sessions should have their pay docked more because of the important issues that are discussed there.  She does not want to hear City Council Members talk about not knowing about issues when they do not go to the closed sessions of the City Council. 

Mike Torres, 1616 Eighth Street, stated that the City Council Members are adults.  This is a new year.  This is the first time that he has seen City staff walk out of a City Council meeting.  He asked what is the City Manager going to tell them in the morning?  He does not know what the City Council is going to do.  How are you going to find harmony?  You are up there to do good for the community and not for yourselves.  We are getting nowhere and nothing is being accomplished for the community acting like this.  We cannot bring back the meetings of the past.  Why do you talk about past meetings?  How can you do something when you cannot accomplish it yourselves?  Where is the City staff?  The police officer is here.  You better straighten up and step back and look at the big picture.  It is a new year and you cannot even vote on the simple things for the good of the community.  You are not doing the City any good.  Start doing something positive.


Warren Urnberg, 1331 Eighth Street, said that the City Council has a “cat and dog” fight at the dais.  When your City staff walks out, it is pretty sad.  Council Member Aguilar recommended certain things to be put in this resolution, such as sickness.  The City Council is squabbling about it.  If these items had been included, it would have flown.  It is really a shame to see what is going on.  Too bad the newspaper reporter has left.  We would make the paper again for sure.

Ralph Mull III, 1445 First Street, said that his parents and relatives have been in this town for many years.  He has seen 12-year olds get along better than the City Council Members.  He was disappointed as this was the first City Council meeting that he has attended.  He wanted to see what his town had become.  It has become a marble fight between a couple of kids on this side and a couple of kids on that side.  The City Council needs to remember that it is a privilege to be a City Council member.  You are throwing it away and treating it like little kids.  He is ashamed.  He has attended City Council meetings in Modesto and in other places and is appalled at this City Council meeting.  Each member of the City Council needs to ask why they are here.  Are they here for themselves or for the citizens of Livingston?  He does not like what he is seeing and does not like the squabbling.  He wants the City Council to be adults and work matters out.  The City Council is divided with the Mayor in the middle.  Try to get together.  Things come up and he understands a member of the City Council will occasionally miss a meeting.  Try to work things out and get along.

Council Member Espinoza said that the reason why this item is on the agenda is because he is here for the citizens.  I did not want to make this a fight and argue over a paycheck. We all have to be here for the citizens.  This is over the water rates.  We are arguing over the paychecks of the citizens that cannot pay their water bills.  If this is a fight, I guess I will be donating my paycheck until the water rates go down.

Motion:  M/S Aguilar/Espinoza to continue to the next City Council Meeting so that wording can be added to the Resolution of the City Council of the City of Livingston Establishing a Policy Regarding Attendance at City Council Meetings by Members of the City Council.

Mayor Pro Tem Vierra asked if the City Council could also consider the attendance by City Council Members at other assigned committees such as the League of California Cities committees.  He goes to a League of California City committee meeting one or two times a month.  What about the City Council Member that is assigned to the Planning Commission?  These are meetings that City Council Members are required to attend. 

Council Member Aguilar asked what point Mayor Pro Tem Vierra was trying to make.  Mayor Pro Tem Vierra responded, “Our job is more than attending just two City Council meetings a month.”  Council Member Espinoza said that if you are not at City Council meetings you should not be paid.

The motion failed on a 3-2 vote, with the City Council Members voting as follows:

          AYES:   Council Members:   Aguilar, Espinoza,

          NOES:   Council Members:   Nateras, Varela, Vierra

          ABSENT:                        Council Members:     None

  City Manager Announcements and Reports.

City Manager Warne said that in 28 years he has worked in City government, he has never seen a resolution like the one that the City Council just voted on.  As long as all members of the City Council are responsible and consistently attend City Council meetings, he does not see a need for this kind of resolution.  He said that he has not seen any City Council Member miss a City Council meeting, unless there was sickness or something serious in their life.  He did not think that this resolution was necessary.  The maximum number of City Council meetings that have been missed by any member of the City Council since December 2008 has been three.

Council Member Espinoza said that he would donate his City Council paycheck to people that cannot pay their water bill.

ADJOURNMENT   

     The City Council meeting was adjourned at 9:56 p.m.                                                                   __________________________________

City Clerk of the City of Livingston

APPROVED:  April 20, 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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One thought on “January 5, 2010 Minutes

  1. Pingback: Cancellations, Postponements, and Appointments (Or the Politics of Hurry up and Wait) « Thegardeningsnail's Weblog (because not every critter is hiding under a rock…)

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