SEPTEMBER 7, 2010 Draft Minutes

CLOSED SESSION/REGULAR MEETING

LIVINGSTON CITY COUNCIL

SEPTEMBER 7, 2010

A Closed Session/Regular Meeting of the Livingston City Council was held on September 7, 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 present were City Manager Richard Warne, Assistant City Manager/Finance Director Vickie Lewis, and City Attorney Jonathan Hobbs.

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

1. Conference with Legal Counsel – Existing Litigation.

Government Code Section 54956.9(a).

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

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

2. Conference with Legal Counsel – Anticipated Litigation.

Government Code Section 54956.9(b).

Significant Exposure to Litigation (1 Case).

OPEN SESSION

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

REGULAR MEETING

CALL TO ORDER

Mayor Varela called the meeting to order at 7:02 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

There were no announcements from Closed Session.

CHANGES TO THE AGENDA

There were no changes to the agenda.

AWARDS, PRESENTATIONS, APPOINTMENTS AND PROCLAMATIONS

1. Presentation by John Alexander, Chief Executive Officer of the Livingston Medical Group.

Mr. Alexander was not present.

2. Proclamation Designating September 17-23, 2010, as “Constitution Week.”

Mayor Varela read a Proclamation designating September 17-23, 2010, as “Constitution Week.” He also addressed the anniversary of the 911 incident

and asked that people take time to reflect on our country.

ANNOUNCEMENTS AND REPORTS

Supervisor John Pedrozo Announcements and Reports.

Supervisor Pedrozo was absent.

City Council Members’ Announcements and Reports.

Council Member Margarita Aguilar

· Council Member Aguilar congratulated those who voted. She noted it was the right of everyone to vote. Although the special recall election votes have not been certified, Ms. Aguilar congratulated Theresa Land. In addition, Ms. Aguilar noted we need to celebrate, take care of our community, and get citizens involved.

Council Member Aguilar made the following statement in Spanish: “Once again I want to thank everyone that voted. It was very important, and yes, I am going to speak Spanish because I can; I am in America and I am an American. I want to thank everyone for going out to vote and for taking that incentive to say, “My vote is important.” The most important thing we must do is vote, so thanks for your support and for the outcome. Some are happy and others will be unhappy. Thank you.”

Council Member Rodrigo Espinoza

· Thanked the community for their support of the recall. He stated he didn’t win by himself, the community helped. He said hopefully the community will come together and work together. Council Member Espinoza noted the County will certify the votes by the next meeting date.

· Thanked everyone for coming out to the Livingston Community Network festival. He said there was a great turnout.

· Reported that sod has been put in at the Parkside Subdivision park and the parks looks great. He said the kids can go out there soon. He also noted that many of the roofs in the subdivision have been re-roofed.

Council Member Martha Nateras

· Thanked all of the citizens who came out and voted. She noted there are 4,000 registered voters in the City, but unfortunately only about 1,000 citizens came out to vote. She thanked everyone for their support, including City staff.

· Reported the committee working on the Red Ribbon celebration met this afternoon. She was unable to attend, but they will keep her posted.

· Invited anyone that would like to be a part of the Relay for Life on April 16, 2011, to attend a meeting on September 13, at 6:00 p.m. The meeting location will be announced at a later date.

Mayor Pro-Tem Frank Vierra

· Had nothing to report.

Mayor’s Announcements and Reports.

Mayor Daniel Varela, Sr.

· Commented that he appreciated everyone being here tonight and everyone who came out to vote.

PUBLIC HEARINGS

3. Resolution Conditionally Approving Site Plan/Design Review 2010-06 for the Clearwire Antenna Project.

Community Development Director Donna Kenney presented the agenda item requesting that the City Council adopt a Resolution conditionally approving Site Plan/Design Review 2010-06 for the Clearwire Antenna Project. She commented that the applicant, Clearwire is proposing to install five new panel antennas at the 165-foot elevation of the existing 195-foot lattice tower. Installation of the antennas will allow Clearwire to provide better high-speed wireless access to the City. The panel type antennas would measure approximately two feet in height. Building and electrical permits are required by the Building Department if the City Council approves the project.

Community Development Director Kenney explained that the lattice tower property measures approximately 50 feet by 50 feet for a total of 2,450 square feet, is surrounded by a six-foot high chain link fence with one 12-foot chain link access gate and contains an equipment pad, lattice tower, generator, equipment racks, L.P. tank, and various equipment shelters. The project site is located at the rear of an existing mini-storage facility. The lattice tower is visible from Highway 99 throughout the northeastern portion of the City including the Walnut Sports Complex site. The addition of the new antennas will be visible, but will have minimal impact on the overall appearance of the existing structure.

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

Colette Alvernaz, P.O. Box 255, Livingston, said she would like to see the area really secure. She noted that kids being what kids are see something to climb and they will climb it.

Community Development Director Kenney explained this is an existing pole that has been there for many years, and is in a secure location.

Gerri Martin, 16181 W. Vinewood Avenue, said she was in favor of the project.

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

Motion: M/S Varela/Vierra to adopt Resolution No. 2010-49, a Resolution of the City Council of the City of Livingston Conditionally Approving Site Plan/Design Review 2010-06 for the Clearwire Antenna 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

CITIZEN COMMENTS

Ellen Meyer of Modesto noted the California High-Speed Rail Authority will hold a Public Information Hearing on October 5, 4:00-7:00 p.m. at 755 W. 15th Street, Merced. The purpose of the meeting will be to present information on the supplemental alternatives analysis material that has been presented to the California High-Speed Rail Authority Board since the initial alternative analysis was reviewed last spring. It is a supplemental to the original alternative analysis report. All comments and suggestions will become part of the public record. At the meeting there will be a Power-Point presentation. The California High-Speed Rail Authority would like to encourage residents to attend the meeting. Additional information on the project is available at www.cahighspeedrail.ca.us.

Robert Kuyper, Pastor of the Livingston United Methodist Church, commented they were celebrating the 100th birthday of the church. He said this was the first church built in the City of Livingston. The pastor actually lived in a tent next to the church when they were building. Pastor Kuyper noted that many of the Japanese people became members of the church and in 1966, the Japanese pastor was killed by a train while on his way to the school to pick up his sick daughter; a big loss to the community. Pastor Kuyper said that tickets for the celebration luncheon on September 19 had been sold out, but he wanted to make the public aware of the event. He thanked everyone for their support of the Methodist Church throughout the years.

Luis Flores, 707 Almondwood Drive, commented that this coming Monday, the Livingston Community Garden Committee will be having a community meeting at 7:00 p.m. at the Livingston Selma Herndon multi-purpose room. Mr. Flores said they are in need of help as this is a really great project. He said we need everyone to help get this project off the ground. They have some support from the new Livingston Union School District Superintendent and some of the teachers.

Mr. Flores said he has been riding his bike more often and he wanted to urge all the bike riders to ride safely. Let’s get more bike friendly.

Estella Martinez, PO Box 381, Livingston, congratulated Mr. Espinoza for winning the election. She asked Mr. Espinoza if he could please tell the public what his plan is for the City of Livingston? Mrs. Martinez also asked what the problem was with Well #15 and what will happen if the well is not fixed in a timely manner. She further asked what the City is doing about Well #1. It has arsenic and that kills rats in her country.

Estella Martinez made the following statements in Spanish, “The reason I am here is to congratulate Mr. Espinoza for being our newly elected Mayor and to ask him to please explain in English and in Spanish what is his plan to maintain our City afloat and in good economic standing. If he can also explain what is the problem with Well #15? What health problems we can face and what are the consequences? What fines will the State impose if it’s not repaired in a timely manner? Also, can he please explain what is happening with Well #1 which has arsenic. You all know that arsenic is a very strong poison. In my country it was used to kill rats, so we need to be careful and concerned about what is happening in our community and know how we are going to be able to fix these problems. Thanks.”

Mayor Varela made the following statement in Spanish, “Mrs. Estella Martinez, I appreciate your question, but Mr. Espinoza is going to have the adequate time to promote his agenda.”

Estella Martinez made the following statement in Spanish, “Yes, but I would like to see it in writing, please.”

Katherine Schell Rodriquez, P.O. Box 163, Livingston. Rodriquez reported on Project 2996. Project 2996 is a tribute to the victims of 911. The list of victims is inclusive. Ms Rodriguez gave an overview of one of the heroes mentioned, a Fireman, Lt. Andrew Desperito. He was in his early 40’s and he died on 9/11/2001 when “The Twin Towers” came crashing to the ground. He had many people who loved him and miss him. (and always will).

Gurpal Samra, 1034 J Street, commented there is also another day coming up which is the City being incorporated on September 11, 1922.

Collette Alvernaz, P.O. Box 255, Livingston, expressed concern about the water when the general plan came out and especially on the wells. She said she was concerned about the water and the water quality. She maintained that we shouldn’t be growing until we take care of the water issues. Ms. Alvernaz suggested artificial turf, low maintenance landscaping, and lower consumption and then give them a reduced water rate if they use turf. Ms. Alvernaz noted her concern with the General Plan and her opposition at the time. Ms. Alvernaz alleged that the City did not properly transfer monies to appropriate accounts, thus causing the need to raise rates.

In another matter, Ms. Alvernaz noted that there appears to be parking allowed in front of the bus stop on Main Street and feels this should be changed.

CONSENT CALENDAR

Mayor Pro-Tem Vierra presented the consent agenda items for the Council’s consideration and approval:

4. Approval of Minutes of Meeting Held on June 15, 2010.

5. Approval of Warrant Register Dated September 1, 2010.

Council Member Espinoza asked that Warrant No. 71057 for $64,283 for attorney fees be pulled from Item No. 5.

Motion: M/S Nateras/Aguilar to approve the consent agenda with the exception of Warrant No. 71057. The motion carried 5-0.

Mayor Varela asked for the discussion on why the warrant was pulled. He asked Mr. Espinoza if he was aware what the fees cover. Council Member Aguilar spoke to that and noted that she and Mr. Espinoza pulled the warrant for attorney fees to make point to the citizens about how much is being spent on attorney fees for litigation.

City Manager Warne clarified that the attorney fees are not strictly limited to litigation Mr. Warne said that the City is involved in a wide range of projects that require us to consult with the attorney. The attorney fees also include calls from Council Members on various issues.

Council Member Espinoza stated it is a continuous fight against Foster Farms. He feels our citizens have already made their remarks with the recall, it is all related. Council Member Espinoza said the City Attorney has done some work appropriately and if he would have been hired the right way he wouldn’t mind paying the fees; however, he doesn’t want to pay the fees.

Council Member Nateras asked that the community keep in mind how much the attorney fees are and what they will be once the Council changes.

Motion: M/S Varela/Nateras to approve the payment of Warrant No. 71057. The motion carried 4-1, with Council Member Espinoza voting no.

DISCUSSION AND POTENTIAL ACTION ITEMS

6. (1) Presentation of the City of Livingston Domestic Wastewater Treatment Plant Percolation Ponds Reconfiguration Basis of Design Report, (2) Authorization to Relocate Evaporation Ponds so that Nearest Pond is Over 500 Feet from the Merced River, (3) Abandon 2,000 Feet of Poor Quality Pond Levees Along the Merced River, (4) Leave Approximately 19 Acres of Ponds #1 to #6 Fallow for Possible Conversion to a Recreation and Riparian Habitat Area in the Future, (5) Aphorize the Construction of New Ponds #10 and #3R from Eight Acres of Ponds #1 to #3, Deepening Them to the Same Level as Ponds #7 and #8, and (6) Authorize Design Phase of Pond Reconfiguration.

Mayor Varela presented the agenda item. City Manager Warne reported the item is a continuation of our discussion from the last Council meeting. He said he wanted the engineer to give a brief presentation and then he would like the City Attorney to address legal and environmental issues along with CEQA.

Tom Greci representing Carollo Engineers gave a presentation on the City of Livingston’s Domestic Wastewater Treatment Ponds Reconfiguration Basis of Design Report.

City Attorney Hobbs said that in response to the City Manager’s request, the California Environmental Quality Act (CEQA) provides for exemptions from review and he noted this project qualifies for two of the exemptions.

Mike Torres, 1616 Eighth Street, commented that at the last meeting it was an emergency repair. He asked why not just repair the levees, but leave recreation alone. Mr. Torres suggested that the City only fix the problem even with money being as tight as it is and then later, look at other options.

City Manager Warne explained there is 2,000 feet of levee and no one really knows the condition of the levee. He said if we do not do something different from we have done in the past, we are going to have the same result. Mr. Warne noted that the levee needs to be repaired or move the ponds. In addition he noted it is $40,000 cheaper to move the ponds than to repair the levee, but it is the Council’s discretion on how to proceed. The proposal is to divide the existing ponds and allow the existing pond to dry up. City Manager Warne noted if the Council wishes, in the future to use that area for something such as recreation, a separate study will need to be completed and plans for that project approved separate from this action.

Gerri Martin, 16181 W. Vinewood Avenue, inquired what ponds were being currently used for percolation? Kathryn Reyes explained that the discharge water goes into Ponds #7 and #8. Ms. Martin expressed concern that the City was moving too quickly and not taking all things into consideration. In addition Ms. Martin disagreed with the City spending that much money when the levee has not broken since 2008 and there have been no further incidents.

Julio Valadez, P.O. Box 701, Livingston, stated that he had gone out to look at the site with the City Manager and the Mayor. Mr. Valadez noted that he was in favor of the project and agreed that something needed to be done. However, Mr. Valadez was concerned with the wording in the staff report that made reference to the area possibly being converted to recreation use in the future. Mr. Warned clarified that was one of potential uses in the future, however, that would require a separate plan as well as studies and approval of the Planning Commission and Council. Mr. Valadez suggested that part of the wording be removed and reiterated that he was in favor of the project.

Tom Greci spoke to the concerns and noted that the ponds are designed for the worst case scenario in relation to storms, etc and designed to meet the maximum capacity.

Amanda Carvajal, Merced County Farm Bureau, thanked the Council for taking the time to hear the concerns. Ms. Carvajal noted that the Farm Bureau supported the idea of moving the ponds away from the river, however, there is concern that all the proper measures have not been taken to complete such a project. Ms. Carvajal noted that the project appears to be an expansion. In addition Ms. Carvajal suggested that the Council take no action at this time and wait until further studies have been done.

City Manager Warne noted the project was not an expansion, but simply reconfiguring the current ponds. In addition, Mr. Warne noted that the Regional Water Quality Control Board is aware of the suggested project and is satisfied with the approach.

Colette Alvernaz questioned the percolation rate noted in the reports as it appears to be triple the current rate. Ms. Alvernaz suggested that with a tripled percolation rate, how is this not an expansion? Mr. Greci replied that the ponds are sized on the percolation capacity.

Mario Mendoza, no address given, read a letter that was written by Colette Alvernaz regarding this project. Susanna Alvernaz continued to read the letter after Mr. Mendoza’s three minute time limit for comments lapsed.

Myra Bettencourt, 1584 Duke Drive, commented she doesn’t know why the City wasted so much money hiring this engineer since we have a lot of expert advice here in the audience. She asked what did it cost the City to repair the levee in 2008? City Manager Warne noted the levee was repaired once and then it is anticipated that it would cost $440,000 to repair it if the levee were to break again. Ms. Bettencourt noted that she is in support of the project.

Luis Flores, 707 Almondwood Drive, stated he will echo Amanda Carvajal and the concerns expressed.

Estella Martinez, P.O. Box 381, Livingston, said it seems this project has a lot of controversy.

City Manager Warne noted the City did apply for a grant as part of the Obama stimulus money, however, the City was not granted any money for the project.

Estella Martinez commented that she understands the concerns that have been expressed, but is also concerned about sewer water being discharged into the river. Ms. Martinez noted that she is in support of the project and something needs to be done.

Jean Okuye, 10181 West Olive Avenue, Valley Landolines, questioned this exemption. She said it is an expansion. It is a vertical expansion and the soil needs to be tested. She highly recommended that the Council not approve this resolution tonight and do more study on this.

Gurpal Samra, 1034 J Street, said he thinks we are a little gun shy and asked what the cost and time frame to do an environmental impact report is? City Manager Warne said in excess of $100,000 and about a year to do the report.

City Manager Warne asked Mr. Greci to address any engineering, percolation or soil comments that have been made. Mr. Greci noted that the designed concept is based on the design of ponds #7 and #8. Also, Mr. Greci noted that the Regional Board monitors the groundwater closely. Lastly Mr. Greci pointed out the notice of violation from the Regional Board to address the issue and stressed the City needs to come up with a solution.

Council Member Espinoza noted his concern of a lack of communication between the City Manager and the Council. Mr. Espinoza stated that he was in favor of a full California Environmental Quality Act (CEQA) study. Mr. Espinoza stated that he is comfortable that CEQA will take care of any issues or concerns. Council Member Espinoza suggested that the Council wait to move forward. He thinks that Carollo Engineers, as far as their contract, are to maintain the levees. City Manager Warne asked for clarification. Council Member Espinoza’s position is that the City should do a full blown CEQA process and spend approximately $100,000. Mr. Espinoza responded yes.

Community Development Director Kenney explained the CEQA process. In addition, she explained when CEQA is required and those conditions that justify exemptions. Ms. Kenney noted that this project actually meets criteria for two exemptions under CEQA.

Julio Valadez, P.O. Box 71, Livingston, asked what the possibility of the groundwater being contaminated is. Tom Greci explained that the potential for groundwater contamination is why the Regional Board is involved. The Regional Board regulates discharge, strict requirements and monitoring. This is common practice for sewer treatment plants in the State of California.

City Manager Warne noted that the City is required to send quarterly reports to the State. This process is to ensure that if any issues were detected they could be addressed early

Mayor Pro-Tem Vierra referenced the first levee break several years ago. He said the levee was fixed and we paid for two lawsuits. One was a fish and game group and he couldn’t recall the other. Mayor Pro-Tem Vierra noted there are old pipes in these levees that have been abandoned and rodent holes and trees that have decay. The cost could escalate. He was surprised that we were not sued for the last levee break. He said if you look at the pictures that were given to the Council, these levees are very weak. The whole process is to get the water away from the river.

Council Member Aguilar stated she is in favor of the project, but would like to see CEQA document on the areas that are deepened. Ms. Aguilar noted the City already has a pending lawsuit with the Farm Bureau and feels that doing CEQA on this project would keep the City from further litigation.

Council Member Nateras felt we should move forward with this project, but whatever everyone wants to do because she is no longer going to be on the Council.

Mayor Varela stated that some years ago we had a break in the levee. It didn’t just pop up today, it has been ongoing. Mr. Varela reported that sometime in April or March he visited the plant with Congressman Cardoza. . Mayor Varela stated that the objective is to move the ponds away from the river without expanding or not changing the General Plan. Mayor Varela stated this was a win-win project

Council Member Nateras commented that if the Council wants to take more time, she will not be here to make that decision.

Mayor Varela stated, but we are maximizing, not expanding. He said it is state of the art, so we will be doing something that other communities would be looking at.

Council Member Nateras asked City Attorney Hobbs if we are okay with this and can we move forward. City Attorney Hobbs stated that, in his professional and legal opinion he felt the Council could safely move forward.

Council Member Espinoza asked the City Attorney Hobbs regarding potential litigation on this item, would it exceed $100,000. City Attorney Hobbs said it is too hard to forecast that right now.

City Attorney Hobbs asked if the changes in relation to potential future recreational use and natural habitat to the resolution are to be adopted, whoever makes the motion to please include that as part of the motion.

City Manger Warne noted that the Mayor asked that a statement be inserted to include that the engineers be directed to work with the Regional Board to ensure all state and federal laws and regulations environmental and otherwise are complied with

Motion: M/S Varela/Vierra (1) Presentation of the City of Livingston Domestic Wastewater Treatment Plant Percolation Ponds Reconfiguration Basis of Design Report, (2) Authorization to Relocate Evaporation Ponds so that Nearest Pond is Over 500 Feet from Merced River, (3) Abandon 2,000 Feet of Poor Quality Pond Levees Along the Merced River, (4) Authorize the Construction of New Ponds #10 and #3R from Eight Acres of Ponds #1 to #3, Deepening Them to the Same Level as Ponds #7 and #8, (5) Authorize Design Phase of Pond Reconfiguration. and (6) Direct Carollo Engineers to work directly with the Regional Water Quality Control Board to ensure compliance.

The motion carried 3-2, with Council Members Aguilar and Espinoza voting no.

6. City Manager Announcements and Reports.

City Manager Warne reported that B Street has been finished and sidewalk construction continues throughout the City. He said that sod has been put in the Parkside Subdivision park and it will probably be another 45 days before we can let people use the park.

ADJOURNMENT

The meeting was adjourned at 9:00 p.m. by consensus.

_____________________________

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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