Approval of Minutes of Meeting Held on October 30, 2012

MEETING MINUTES

SPECIAL MEETING

LIVINGSTON CITY COUNCIL

OCTOBER 30, 2012

A Special Meeting of the Livingston City Council was held on October 30, 2012, in the City Council Chambers with Mayor Espinoza presiding.

CLOSED SESSION

Mayor Espinoza called the meeting to order at 6:04 p.m.

ROLL CALL

Mayor Rodrigo Espinoza

Mayor Pro-Tem Margarita Aguilar (Excused Absence)

Council Member Frank Vierra

Council Member Theresa Land

Council Member Gurpal Samra

Mayor Espinoza opened the meeting for public comments. There were no comments from the public. The Council subsequently adjourned to Closed Session at 6:05 p.m. to discuss the following matters:

1. Conference with Legal Counsel—Potential Litigation

[(Government Code Section 54956.9(b)(1)]

Number of Cases: 2

2. Conference with Labor Negotiator

(Government Code Section 54957.6)

Agency Negotiator: City Manager Jose Antonio Ramirez

Employee Organizations: All Represented City Employees

OPEN SESSION

The Council came out of Closed Session to begin the Special Meeting.

SPECIAL MEETING

CALL TO ORDER

Mayor Espinoza called the Special Meeting to order at 7:03 p.m.

PLEDGE OF ALLEGIANCE

The pledge of allegiance to the flag was recited.

ROLL CALL

Mayor Rodrigo Espinoza

Mayor Pro-Tem Margarita Aguilar

Council Member Frank Vierra

Council Member Theresa Land

Council Member Gurpal Samra

CLOSED SESSION ANNOUNCEMENTS

No announcements were made.

CHANGES TO THE AGENDA

Mayor Pro-Tem Aguilar moved item 9 before item 7.

Mayor Espinoza pulled Warrant No. 76083 for discussion. This check was made out to former employee, Donna Kenney, for attending a conference October 21-22, 2012 when she was no longer a City employee.

AWARDS, PRESENTATIONS, APPOINTMENTS AND PROCLAMATIONS

1. Presentation by Gilton Solid Waste Management, Inc. – Solid Waste Services.

Dennis Shuler, Environmental Manager for Gilton Solid Waste Management, Inc., gave a PowerPoint presentation on solid waste services and thanked the City Council and staff for this opportunity.

Mr. Shuler introduced other Gilton staff members present: Richard Gilton, President/General Manager; David Blum, Operations Manager; and Robert Pritchard, Controller.

Mr. Shuler started with some background information and operating philosophy about their company.

The owners and managers of Gilton Solid Waste Management (GSWM) are excited with the potential opportunity to continue, and to expand, their services to the residents, businesses, and industries within the City of Livingston.

After 26 years of service in Livingston, they welcome the chance to once again show that they cannot only meet, but exceed all the expectations of their customers.

GSWM is qualified to provide the most cost-effective, fully integrated waste collection, processing, recycling and waste transfer services. Their ability to efficiently and effectively spread their equipment, labor and management costs over multiple jurisdictions has routinely resulted in the lowest costs to their customers. In addition, they can provide extensive, cost-effective opportunities to divert, recycle, and safely dispose of all the waste generated in the City.

GSWM has helped each of the cities and counties they serve to achieve and exceed their State mandates. They focus on fully integrated systems that result in the most environmentally sound, cost-effective programs.

GSWM has been in business for 65 years. Currently they have 143 employees. They currently have 78 collection and transfer vehicles. They serve over 71,000 residential customers and serve over 4,900 commercial and industrial customers. They are currently operating under contractor franchise in 10 cities and counties.

Gilton Resource Recovery has been in business 23 years. They have 71 employees at that facility. In 2011, they collected 447,000 tons of waste. Of that, 246,000 tons diverted from disposal and 65% of waste diverted from disposal.

They pride themselves in providing an easy, convenient facility for businesses and the general public to bring in all their waste. They have a whole range of collection vehicles and commodity transfer vehicles which are dispatched from the facility in Modesto.

They do all of their own vehicle fleet management at their 40,000 sq. ft. garage within the same location. All vehicles in both of their company fleets are in complete compliance with air pollution regulations.

Two weeks ago they were here and there was some discussions regarding their one pass trucks and some of the Council Members have seen these vehicles. Mr. Shuler showed a picture of a fully automated one pass truck. He explained how trucks work. Everything is done through the driver in the cab; he doesn’t have to get out of the cab. Up above that yellow arm is where waste goes. It allows them to separate the waste into two waste bins. There are actually two compartments, one is used for garbage and trash and the other is for organic waste.

Both cans are collected at one time with one truck. There is less wear and tear on residential streets. It is safer for residents and local drivers; and it is cost effective. After nearly 20 years experience with these trucks, their low customer rates have proven the efficiency of their system.

The City’s recent RFP calls for two automated collection carts, one for garbage and trash and the other one for green waste. GSWM offers enhanced green waste recycling. The system targets not just the typical yard and garden wastes, but other organic and plant-based wastes. The inclusion of all these compostable materials has significantly increased the waste being diverted in each of the areas using this system.

What happens to those wastes – it turns into compost which is highly and desirable in agricultural communities.

What happens to other recyclables for the City? Their company will continue to operate the State permitted drop-off recycling site for those customers that wish to utilize that option. They will continue to collect cans, bottles, and plastics, plus any paper products and cardboard that residents or businesses wish to bring to that site at no additional charge to the City for that service.

The most recent thing on the horizon is the law passed last year that became effective July 1st which is called AB 341 – Mandatory Commercial Recycling. As participating and voting members of the Merced County Integrated Waste Management Task Force, they are fully informed of all the responsibilities, requirements and options related to the law. They have already begun implementing programs to help businesses in Livingston comply with the requirements.

Mr. Shuler presented their company’s key personnel and their years of service and ended his presentation with their Mission Statement: To provide the highest quality waste management services to all of their customers while constantly working to ensure the protection and improvement of their local community and the environment.

Mayor Espinoza opened the meeting for public comment at 7:17 p.m.

Warren Urnberg, 1331 Eighth Street, asked Council to not only consider cost, but also the wear and tear of City streets. He thinks one truck with two compartments is better than two different trucks.

Mayor Espinoza closed the item to the public at 7:19 p.m. as there was no further comment.

Council Member Vierra asked if both of these cans will be the same size.

Mr. Shuler replied they are the same size.

Council Member Vierra asked if you have a can for green waste, what do you have left for the other can.

Mr. Shuler replied, hopefully very little – only things that are non compostable. The goal is to be able to divert as much as possible anything that is organic and compostable. Non compostable are things such as plastic and paper diapers, and small electronics that cannot be taken to electronic disposable sites.

Council Member Land thanked the Gilton family for giving her a tour of their facility. She asked if they would consider placing an e-waste bin at the City Yard for people to drop off their e‑waste.

Mr. Shuler said that was not part of the proposal, but they can look into that possibility.

However, they have programs in place in several jurisdictions where they issue customer vouchers to residents for taking the equipment to them at no cost to the residents.

Council Member Land asked Mr. Shuler to speak on the cost effectiveness of the vehicle that has both the garbage and the green waste because Mid Valley and Turlock Scavenger companies both said it was not very cost effective for them to have this type of vehicle. They would rather have two trucks.

Richard Gilton said he thinks their numbers in the RFP show that their prices are lower than anybody else’s. They believe than one less truck is more cost effective and efficient. And they want to pass that on to the City’s customers. They have tested it and they believe it works.

Council Member Vierra believes it is common sense that one truck on City streets is better than two trucks. He couldn’t understand when they said it wasn’t cost effective to them; it is also not cost effective to the City to have all of its streets dug up.

Mr. Gilton said it is more cost effective and also more efficient. It is less confusing to the residents to have both their garbage and green waste picked up the same day.

Council Member Land asked Mr. Gilton to address their customer service because she did not have a pleasant experience when she called once.

Mr. Gilton said it can happen; their company is not perfect, but they do try to handle things in a timely manner. His understanding is that they have not had any long standing issues in the City over the last 26 years that they have not been able to resolve. He added that typically customer service is handled through the City because they do the billing.

Council Member Samra asked what is the size of the cans on the two can system.

Mr. Gilton replied they will be the same size as the existing 90-gallon cans.

Council Member Land asked if the cans are two different colors to differentiate one from the other.

Mr. Gilton replied they are two different colors.

City Manager Ramirez explained that whatever company is selected will be working with the City to order cans and have the City logo put on them.

CITIZEN COMMENTS

Mayor Espinoza opened the citizen comment period at 7:29 p.m.

Katherine Schell-Rodriguez, P.O. Box 163, Livingston

· She noticed there are items on the consent agenda. There are also three items under discussion and potential action items. Is public comment to be limited only to this time or will they be opening items 7, 8, and 9 for the public to comment when these individual items come up?

Mayor Espinoza said they will open up each item for public comment.

· She asked why the City needs three (3) different law firms. Not only does it have Meyers Nave, but it also has Lozano Smith and Liebert and Cassidy. If you add up their fees, it’s quite a bit of money. If you add that up for the last few months, it’s enough to fund a full-time position.

City Attorney Sanchez explained Meyers Nave is the City Attorney and does most of the work. There is minimal work being done by Liebert and Cassidy under the City’s Risk Management Authority for certain labor items. As for Lozano Smith, they are for very specific items, but that is very minimal and it’s not ongoing.

City Manager Ramirez said Lozano Smith worked specifically on the solid waste issues.

Ms. Schell-Rodriguez said she wishes members of the Council were able to answer this question.

Julio Valadez, P.O. Box 701, Livingston:

· Thanked the City Manager, Chief of Police and Police Department for helping out with the Knights of Columbus Soccer Challenge held on October 20, 2012. It was a good event.

CONSENT AGENDA

2. Resolution No. 2012-72, supporting the Merced Union High School District’s Application for the ASSETS After School Program through the California Department of Education.

3.Approval of Minutes Held on September 4, 2012.

4. Approval of Minutes Held on September 26, 2012.

5. Approval of Warrant Register Dated October 15, 2012.

6. Approval of Warrant Register Dated October 26, 2012.

Council Member Vierra made a correction to the minutes from September 4, 2012. On page 5 of the minutes, it says he voted, but he was not present at this meeting.

M/S Aguilar/Espinoza to approve items 2, 3 (with corrections), 4, 5 (with the exception of Warrant No. 76083), and 6. The motion carried 5-0 by the following roll call vote:

AYES: Council Members: Espinoza, Land, Vierra, Aguilar and Samra

NOES: Council Members: None

ABSENT: Council Members: None

City Manager Ramirez explained warrant No. 76083, was issued to former employee, Donna Kenney, because she was already registered for the conference when the reorganization took place; therefore, in order to not lose that money and as a gesture of good will, he agreed to split the cost with her only on the lodging and so that is what the check reimburses for. He recommends that Council approve this warrant.

Motion: M/S Espinoza/Aguilar to approve warrant No. 76083. The motion carried 5-0 by the following roll call vote:

AYES: Council Members: Espinoza, Land, Vierra, Aguilar and Samra

NOES: Council Members: None

ABSENT: Council Members: None

DISCUSSION AND POTENTIAL ACTION ITEMS

9. Discussion/Provide Staff Direction with a Roll Call Vote Concerning Truck Parking Signage on

Joseph Gallo Court.

Police Chief Chavez provided a PowerPoint presentation.

He said this item was brought before the Council on October 2, 2012, and the initial recommendation was that both sides of Joseph Gallo stay no parking and there were some concerns from the merchants on Joseph Gallo Court that they were losing business, so they presented their case to the Council.

There were multiple factors involved:

· Merchants that are losing business because trucks are not participating in purchasing meals.

· Taking the rights of the property owners that have property there and are fearful that the trucks might shy away some of the potential buyers or future merchants.

· Customers’ convenience.

City Staff has spoken with many truck drivers out there that say it is very convenient for them to pull into a street, come out and purchase their meals and then jump back in their truck and take off. It’s inconvenient for them to go park at Travel Centers of America (TA) or at any other location.

The biggest thing he would like to address is vehicular and pedestrian safety. Being involved with public safety, he makes that part or one of the biggest considerations to address. There are times out there where vehicles are pulling out of parking lots and their vision is obstructed by the trucks, so the question is how do you alleviate that? If you allow parking on one side of the street and not on the other, it might help in that respect; however, you then have the issue of future potential business owners that might want to develop property on that side.

He can see where they might for the meantime allow parking on that side, but at some point, once that property is developed, it will be an issue with truck parking. He will leave it to the Council to address the parking issue.

Mayor Espinoza asked Chief Chavez if he talked to the merchants. As far as he knows, they are not really losing business on the west side of Joseph Gallo, only on the east side.

Chief Chavez said he spoke to all the managers and merchants and all of them said that they all lost business once the signs went up and they are all for allowing parking on that street.

Council Member Vierra asked if that goes for both sides of the street.

Chief Chavez said they did not specifically address what side of the street; they just said they preferred to have parking out there.

Council Member Vierra said he thought they wanted parking on both sides of the street.

City Manager Ramirez clarified for the public that we have Gallo Drive and Gallo Court. On one side of Winton Parkway, we have Gallo Court; then we have the other side of Winton Parkway which is Gallo Drive; and then we have two sides of the street.

Chief Chavez said he was actually thinking of the east side of the street. The merchants he spoke with were all on the side where Starbucks is located. He actually didn’t get a chance to talk to anybody on the other side. He didn’t think they had much of an issue on the other side.

City Manager Ramirez said there was a letter that went out to all of the merchants both on the Drive side and on the Court side and he knows that managers from several businesses were present at the last meeting.

Council Member Samra said he had the opportunity to go through the Carl’s Jr. drive thru and one of the person’s that spoke at the last meeting happened to be working and she said she wanted to thank the Council for bringing their business back by allowing trucks to park there. It definitely made a difference.

Council Member Vierra thought that when the McDonald’s representative came to the last meeting, she indicated they were in support of taking down the no-stopping signs on their side of the street.

Council Member Land said she was in agreement and supportive of the rest of the businesses to take down the no parking signs.

Mayor Espinoza opened to the public at 7:43 pm.

Katherine Schell Rodriguez said she heard businesses were notified about the last meeting, but were they notified about this meeting? She saw the Council agenda for this meeting when it first got posted and it did not have this agenda item on it. It was added at the last minute yesterday (Monday, October 29th). She asked if there was any effort made to re-notify businesses that a decision was made in a special meeting rather than a regular meeting.

City Manager Ramirez said that staff actually made an amendment to the agenda on the Friday prior to the meeting.

Ms. Schell Rodriguez said it was not done until Monday. She got her amended copy on Monday, one day before the meeting.

City Manager Ramirez explained the actual execution of the agenda was sent on Friday. Letters were not sent out to the merchants, but when the merchants were present at the last meeting, they heard the direction Council gave and they were welcomed to participate in future discussions. At that time everyone was pretty much in concurrence that there needed to be at least a timeframe of a 30-minute interval or an hour interval. It was going to be decided if the no parking issue was going to be implemented on both sides of Joseph Gallo because the majority of the issue was on the Gallo Court side.

Ms. Schell Rodriguez said she thinks that if it was important enough to make the effort of inviting the merchants to one meeting, it would be important enough to make the effort of inviting them to this meeting, especially if there is going to be a roll call vote.

Warren Urnberg, 1331 Eighth Street stated on the west side where Jack-in-the-Box is where they can park, and that is okay with him. He recommends there be no parking in the drive in side of Jack-in-the-Box on that whole side in the corner down to the driveway. There is a blind spot and if there is a vehicle parked there you cannot see the traffic coming.

Mike Sperry, 737 Main Street stated when he heard this item was coming up for a roll call vote, he visited the merchants that were invited to the last meeting (Subway, Carl’s Jr., Jack‑in‑the‑Box, McDonald’s). He talked with the owner of Subway who had no knowledge of this meeting. He also talked with the manager of Carl’s Jr., and she also had no clue. She said she talked to Council Member Samra in the drive thru and he gave her a heads up.

Council Member Samra said he did not give her a heads up. He saw her prior to this agenda. It was a standard visit, strictly business. He told her, and he wants this on the record, that Council was going to discuss this at a later date, but he did not give her any particular date.

Mr. Sperry said he also went to Jack-in-the-Box and was told they got something in the mail the previous week, but not for sure. He couldn’t talk with the manager at McDonald’s, but left his card.

Mr. Sperry said on the west side there is not a lot of parking plus the issue is this – nothing is really open food wise other than Chevron, Jack-in-the-Box, and Carl’s Jr. which operates 24/7. Subway says they are losing $70 a day. If you multiply that amount for 30 a day that is a couple of house payments for a lot of people.

One question he brought up before on this subject was he originally wanted to know where the parking matter came from. Who brought this up? He also asked who owns that property.

Mayor Espinoza replied Mike Gallo is the property owner.

Mr. Sperry said the reason he asked is because Mayor Espinoza has contributions from Gallo, so he wonders if this is conflict of interest for the Mayor.

Mayor Espinoza told Mr. Sperry to finish his comments.

Mr. Sperry said this is a question, not a comment.

Mayor Espinoza asked him if he was done.

Mike Sperry said, “I don’t know, are you?”

Mayor Espinoza said he did receive contributions from Mr. Gallo; however, the situation here is the vendors. Mr. Gallo is not selling out there. He is not selling services or food. He just owns the property.

Mayor Espinoza closed the public comment period at 7:51 p.m.

Mayor Pro-Tem. Aguilar apologized that letters were not sent out. It was brought to their attention by Council Member Land that the signage of no stopping was completely removed on both sides. The question was what exactly was the motion and was the motion carried through. Being that there was a vote back then; they had given direction.

She watched the meeting video and noticed that what they directed the City to do was not done. They actually moved the signage on both sides which was not the direction and not the vote that they wanted. It is her understanding that Council brought this forward so that they can clarify what the other motion was making sure that what they asked as a Council is taken forward.

Council Member Land said Council’s belief was the direction that was given was to take down the signs just on one side on Gallo Court and they noticed that just about all the signs were taken down. Then she went back and checked the audio and the video and it did say exactly that – that Council Member Samra had made a motion to take down the signs on Gallo Court on one side only and that is not what happened.

She is very concerned that the direction of the Council is not being adhered to, so that is the reason that Council asked that this matter come back. And when all businesses that were present they were able to receive a lot of feedback from them and they spoke and said what it was that they wanted. They understood that it was going to be coming back to the Council and Council was going to be discussing it as a permanent option. It was very clear to them that it was a temporary fix and that it would come back and Council would revisit it and make a permanent decision.

City Manager Ramirez explained that City staff had long discussions with Council with regards to what direction was given. After seeing the video, what was executed was not what Council asked for, but if there was something that was an error, it was an error in favor of the businesses. He did not want to direct staff to go out there again and put the signs up if Council was going to have this discussion again, so, he takes responsibility for that particular error. It was not done intentionally. He knows that staff is willing to implement something different this time. He asked that the person taking the minutes highlight the action taken so that they have clear direction because they don’t want anybody to be upset.

Mayor Pro-Tem Aguilar asked if they have to make a motion with this direction to follow through.

City Attorney Sanchez said he believes this item was to give Council direction, so a motion would definitely do that – a motion, a second, and a vote. That way it is very clear to everyone on what the actual motion and direction is.

Mayor Espinoza understands that Council wants to make sure their direction is followed, but also they are trying to help the businesses be able to sell. Pretty soon they are going to get a new Council. They might have a different opinion. He is pro- business and feels both sides should be open 30 minutes to an hour. Let’s just have these businesses sell as much as they can and make sure that staff follows Council direction. He was surprised to see this on the agenda again.

Mayor Pro-Tem Aguilar said she appreciates Mayor Espinoza’s comments and concerns and she wants to clarify she has nothing against merchants making money, but they also have to consider the safety issues involved.

Mayor Pro-Tem Aguilar made a motion to continue with what was asked before to keep the signage up on the Gallo Court side except in front of Jack-in-the-Box and across from Subway.

Council Member Land asked if this is just to rectify what was originally put in place and is this going to be brought back at another meeting to make a permanent decision or if Ms. Aguilar was suggesting this to be a permanent fix.

Mayor Pro-Tem Aguilar said she doesn’t think this would be permanent. She noted the new City Council coming in may want to look at the factors again to make a decision based on that, but for now they need to do this for safety and also to make sure the merchants are making money.

Council Member Vierra recommends they do not post at the end of the cul-de-sac so that way it gives them that much more parking and is farther down the way from the entrance into Subway. He is talking about down the street where the cul-de-sac is and if you are going to put “no parking” on the business side to allow them to park in the cul-de-sac and then up the vacant lot side towards Jack-in-the-Box.

Chief Chavez said he is not sure they can accommodate a u-turn there.

Council Member Land seconded the motion made by Mayor Pro-Tem Aguilar. The motion carried 3-2 by the following vote:

AYES: Council Members: Aguilar, Land, and Vierra

NOES; Council Members: Espinoza and Samra

ABSENT: Council Members: None

7. Resolution to Award a Contract to Filtronics, Inc. of Anaheim, California for Goods and Services Provided to Change Out the Arsenic Removal Media for the Well 16 Arsenic Removal Treatment System and Authorizing the City Manager to Execute the Agreement.

City Engineer Nanda Gottiparthy presented the staff report.

The arsenic removal system and media replacement has been going on.

Staff recommends award of a contract to Filtronics, Inc.

Filtronics, Inc., representatives were available to answer questions.

City Engineer Gottiparthy explained that staff has been working on determining the most optimal solution for the media replacement. He explained the current treatment that we have out on Well No. 16 to treat arsenic has not performed very well. Also, the media that was used initially when it was constructed was made by Dow Adsorbsia and Dow subsequently discontinued manufacturing the media and it is no longer commercially available.

Staff selected the media based on the proposals by the vendors they talked to. The City decided to conduct a study called a Rapid Small Scale Column Test to determine and compare several vendors that proposed their media and they performed the test in the laboratory using UC Davis facilities. UC Davis and their faculty worked on it and set up the system and compared different media and types of media and recommended two as the most suitable.

What they did is actually take samples from our well because media used to remove arsenic are very sensitive to the constituents in the water and that was the reason why they decided to take time to analyze and come up with the most optimal solution. Also, the media is very expensive and staff wanted to not only look at the initial cost, but also at the long-time operational cost or the life cycle cost to use each of the media. For that they picked the top two media manufacturers that were identified through the UC Davis analysis and report and asked them to submit a proposal as to how long their media lasts and what guarantees they were giving. Through several alterations and changes to the proposals and also those analysis’ on the part of our vendors, we were able to bring up the guarantees that were provided.

The Filtronics proposal is found to be much more economical to the City in the long run and staff recommends the City contract with Filtronics, Inc.

Mayor Espinoza opened the item to the public at 8:05 p.m. and subsequently closed the public comment period as there were no comments received.

Council Member Comments:

Council Member Vierra

He always thought that all of these things that went to the Stakeholders Committee would come back the same way as what happened with the sanitation proposals they have been listening to for the last few meetings. Here they are just getting one choice and only hearing one company and those two that originally went before that committee. It’s always good to hear what the others have to say and then be able to choose. He thinks Council has a better idea now about garbage because they listened to several companies and they will make their choice.

Council Member Samra

The Stakeholders Committee discussed this in great length on more than one occasion and in the end they made the same recommendation as staff based on cost and the fact that this media is widely available where in the past they were limited to one particular manufacturer. Those were the only concerns they had. If Council wants to bring all vendors onboard and listen to them, they are welcome to, but he doesn’t think that is necessary because the Stakeholders Committee spent more than one meeting on this.

Council Member Land

She was a bit confused earlier and she called City Manager Ramirez and he had City Engineer Gottiparthy give her an explanation of what this all was and she got a better grasp on it, so she thanks them for that.

M/S: Samra/Aguilar to adopt Resolution 2012-73 to Award a Contract to Filtronics, Inc. of Anaheim, California, for Goods and Services Provided to Change Out the Arsenic Removal Media for the Well 16 Arsenic Removal Treatment System and Authorize the City Manager to Execute the Agreement. The motion carried 4-1 by the following roll call vote:

AYES: Council Members: Aguilar, Espinoza, Land, and Samra

NOES; Council Members: Vierra

ABSENT: Council Members: None

8. City Council to Provide Staff Direction on Fireworks Ordinance

Recreation Superintendent Benoit presented the staff report. She stated she was asked to bring this item to Council for discussion.

Mayor Pro-Tem Aguilar asked Superintendent Benoit to read the recommendations that she brought forward for Council and also for the citizens to hear.

Superintendent Benoit said she brought four possibilities, but the Council may recommend others.

1. Go back to the original ordinance with the lottery system and booth definitions allowing the Recreation Department one (1) booth and drawing for four (4). Add procedures for groups who are late or are in violation of the ordinance.

2. Allow only two (2) booths to the same parent organization and change the ordinance to indicate this. Allow fireworks to be discharged until July 6th in compliance with the California Health and Safety Code. Allow the Recreation Department one (1) booth to help support the fireworks show each July. Add procedures for groups who are late or are in violation of the ordinance.

3. Do nothing and leave the ordinance as is, but add procedures for groups who are late or are in violation of the ordinance.

4. At the pleasure of the Council.

Mayor Espinoza opened for public comment at 8:12 p.m.

Carol Ponder, Phantom Fireworks, 2321 Tenaya Drive, Modesto, stated what they put together were suggestions for different options and also provided the Council with a comparison sheet of how other cities within this area handle things, what their ordinance maintains, what their ratio is and what stand limits, population etc.

She said they have been asked by a number of groups in Livingston that would like to be able to apply for a booth on a more regular basis.

At the present time, the ordinance doesn’t limit the number of entries the high school is able to submit for the rotation list. Consequently, the odds are very small for another group being able to operate a stand.

She has a copy of the rotation showing who had the stand and who is going to have the stand through 2014. There are four groups that have to wait about 3-4 years before they can get another permit. She would like to suggest grandfathering one permit for Livingston High School. This will assure the high school one permit each year and not be required to play in the lottery entry.

In doing so, the high school can then select an organization from the high school to operate the stand for that particular year. In addition, they would have the opportunity to do advanced sales in the community to patronize the high school stand. The high school would determine how that revenue derived from the sale would be allocated to the school.

Should there not be enough non-profit groups come into the lottery for the remaining permits, the high school would be allowed to use the remaining permits for that current year. They recommend the number of permits now allowed remain at five (5) per year. As of July 1st, Livingston’s population is 13,571 and the stand ratio for the City would be approximately 2,700 prospective customers per stand. This is well within stand ratio in neighboring cities.

Ms. Ponder’s three minutes were up before she finished reading her comments.

Council Member Land asked Ms. Ponder if she could share names of organizations that have had concerns or issues.

Ms. Ponder replied they contacted several of the groups, but doesn’t know if they are here tonight.

Mike Sperry said Ms. Ponder could have his remaining time to finish her comments as he did not use his entire three minutes.

Council Member Samra states that is not legal.

Mike Sperry and Katherine Schell Rodriguez state – point of order! It is legal in Atwater and City Attorney Sanchez knows that.

City Attorney Sanchez clarified that what Council meant is that here the City Council has deferred three minutes per person and in other cities, they don’t do that.

Council Member Samra said, also in other cities they also limit a certain amount of time per topic and in Livingston they allow everyone to speak.

Megan Warren, Phantom Fireworks, 2351 Tenaya Drive, Modesto, finished reading Ms. Ponder’s comments. For equality to the other non-profit groups in the City, they propose that one entry for each qualified organization possessing a 501C-3 or a California Secretary of State non-profit classification. This organization allows other non-profit groups to sell fireworks in the community as a fundraiser. They also suggest that lottery permits be only for one year. This would make the lottery more equal for organizations to obtain a permit with only a one-year wait.

As a note of interest, the Patterson Boosters have several groups participate and one group per day gets the sales for the day they participate. It really works well for them and can be positive for Livingston High School as well.

Julio Valadez, P.O. Box 701 Livingston asked if Superintendent Benoit would read her recommendations again.

Ms. Benoit read the four (4) possibilities again.

Mr. Valadez asked that whatever decision Council makes, they allow all groups to start again and everyone submit new paperwork so it is a clean start.

Mayor Espinoza told Superintendent Benoit it would have been good if all the non-profit groups would have been sent a letter and informed about this meeting.

Superintendent Benoit said they were sent a letter two weeks ago.

Mayor Espinoza said that was just to the organizations that were in the rotation already. He knows that Livingston Middle School has expressed interest in the past because they have fundraisers as well. Maybe they should just open it up public wide to be fair to other non-profits to have input or put in an application.

Mayor Espinoza closed the public comment period at 8:28 p.m.

Council Member Comments

Council Member Vierra

On the fireworks rotation list, there are some organizations that were grayed out – it says submitted by June 1, 2012. He asked if that means those organizations in gray are no longer interested.

Superintendent Benoit said that is correct. At the Council’s direction, she was asked to send a letter to see who was still qualified and who wanted to participate. All the ones that are in gray did not return their update.

Council Member Vierra asked if out of 19 they are down to 10.

Superintendent Benoit responded, “Yes.”

Council Member Vierra thinks rather than allow the Recreation Department to have one booth, allow the July 4th Committee to put up the booth because they are the ones putting the 4th of July event together. He asked why the City is having the booth.

Mayor Espinoza replied it’s because the 4th of July Committee is not non-profit.

Mayor Pro-Tem Aguilar explained the Recreation Department would have a booth to help the n 4th of July Committee so she doesn’t see why they would also have one. It would have to be the 4th of July Committee having a booth for their organization and Recreation doing it for another organization.

Council Member Vierra said if they are the 4th of July Committee, why is the City getting involved in this again? He still sees bills come in for that event that the City is paying for. Why aren’t we helping the 4th of July Committee become non-profit so that they are recognizable and then we give them one booth?

Mayor Pro-Tem Aguilar said that is why they are here so they can add other groups to the list. The list has the rotation list and the majority are for Livingston High School, so they are here to discuss if they are going to open it up for other groups other than the high school. She has a list of other organizations she would like to recommend for consideration.

Council Member Vierra said his point is, let’s get the Recreation Department out of this and give it to the 4th of July Committee.

Mayor Pro-Tem Aguilar said that is just a recommendation.

Council Member Land said they are not a 501C-3. They would have to become a 501C-3 because that is what is required by City ordinance in order to have a fireworks booth, so that is why they need Recreation.

Council Member Land asked Superintendent Benoit if the City kept a booth, who would man the booth? If it’s City staff, they have to be paid and so that is an issue and it is not going to go over very well, especially if there is overtime and the profits are going to somebody else.

She added this was brought up in February to the City Council. This is not a new topic. This has been going on as a discussion since February. In February, it was put off until the 4th of July this year and it has been stalled. She feels that the election is getting in the way and that is why it’s getting put off.

Here it is now and they need to make some decisions. Do we want to do a rotation or a lottery? What they currently have does not match our ordinance, so they have to decide on what it is they want and either have the ordinance changed to match what they want or go with what our ordinance says. That is the discussion.

Council Member Vierra said he has dealt with 501C’s and all it is a bunch of paperwork. Why can’t we do that to help this group so that they can have a booth and the money goes to them directly? He doesn’t like the idea of it going to the City because then we are going to be paying people to man this booth.

Council Member Land asked Mr. Valadez, Chair of the 4th of July Committee if the Committee would be interested in becoming non-profit.

Mr. Valadez: replied the Committee is interested. In the past, they didn’t have the money to become non-profit, but currently they have enough money to hire a lawyer and have the process done the right way. He said they do not refer to the 4th of July event as Julio’s event because it is not his event; it is the City’s event.

Mayor Pro-Tem Aguilar said she knows this committee is very dedicated and would have no problem running a booth if they couldn’t get non-profit status. She thanked Superintendent Benoit for considering the committee as part of the City.

Mayor Espinoza thinks its great the committee wants to become non-profit. It’s for the community. He thinks it’s best to put it out to the public for non-profits that want to join and then decide to do a lottery or a rotation.

Mayor Pro-Tem Aguilar wanted to add to the list some of the youth groups that don’t have an opportunity. Her list includes: Police Department & Toys for Tots; the Livingston Community Network who provide scholarships for Livingston youth; soccer travel teams; the 4th of July Committee; the Recreation Department for youth that cannot afford to participate in recreational sports; and the Livingston Fire Department. She thinks they need to open it up for all and get the entire community involved.

Council Member Land asked how they suggest Superintendent Benoit open it up for everyone. We post our City Council agendas, Superintendent Benoit sends notification to all the groups – how much more do they have to do? She noted they were all contacted and only the 4th of July Committee showed up.

Mayor Espinoza said it hasn’t been made public – they just went by the list, but they should put it in the newspaper and open it up for all groups to apply.

Council Member Samra said he brought this issue up before. He thinks they should definitely give the 4th of July Committee a booth because it helps with the fireworks. He thinks that definitely has to be part of the annual list because that’s an annual expense. All organizations are for the good, but the 4th of July Committee is one organization that directly has an impact on the organizations to raise funds and they need to give them as much help as possible. He thinks in the past, the Recreation Department shared a booth with them and then they shared the profit.

Superintendent Benoit said they don’t have enough manpower to do that.

Council Member Samra said they don’t put in overtime, they just get together with another organization that runs the booth for them and then they just share the profit, so they get some sort of a gain and City Recreation is also for the benefit of the kids. His main concern is the high school is so huge and has so many organizations that it was rated in their favor over and over and other organizations don’t have another chance for several years.

Livingston High School may run three booths every year; some don’t get that match, so he thinks whatever number they come up with, they should limit the parent organization to a set number of booths. As suggested by Phantom Fireworks, give them one booth and let them divide it up amongst their various groups. That becomes a headache for them, not for the City. He thinks that is a good idea.

Council Member Samra asked what happens if a new organization starts in January? How do they determine if they are qualified?

Superintendent Benoit replied they have criteria that says they have to have 15 members; a permanent meeting place in Livingston and have been together for at least one year. That qualifies them for the lottery or rotation.

Discussion followed.

Council Member Samra asked for clarification. Grayed-out organizations means they didn’t respond, but if they didn’t submit their paperwork now, they cannot be taken out of the list now because come January, they can say they want to be added back to the list. Is that correct?

Superintendent Benoit said, “Yes.”

Council Member Samra thinks the 4th of July Committee definitely must have one

booth and one for the parent organization for Livingston High School. He asked what happens if Livingston Middle School expresses interest in a booth. They also have several organizations, so are we going to favor the high school or are we going to give them one booth too? Before we make a final decision, we have to know how to handle that.

Mayor Espinoza thinks we should open it up to the public first for at least for one month.

Mayor Pro-Tem Aguilar thinks we can put a flyer in the water bills and if the Middle School wants a booth, treat them like the high school and they decide who is going to man the booth and leave it open for three other organizations.

Mayor Espinoza said it depends on the number of rotations.

Mayor Pro-Tem Aguilar said that would really depend on how many committees Council wants to have listed.

City Attorney Sanchez said his office has been working on this ordinance with staff. He wants to clarify that what he is listening to here is a couple of issues. As far as procedure goes, all they are taking is direction. They will still have to bring the ordinance back to the City Council for a first and second reading and it wouldn’t be in effect for 30 days after the second reading. However, one of the key questions staff is looking for is do you want to grandfather or guarantee certain groups a booth?

Currently, the City can only have five booths. So if you guarantee one booth for the 4th of July Committee and one for the high school that leaves three. How does Council want to deal with the other three? Do they want a rotation list or do they want a lottery? Do you only give the opportunity to three groups randomly every year or is there a rotation for those three and do they want staff to put together criteria for those three groups on how to manage the rotation list? He thinks one of the first issues is if they like the idea of guaranteeing booths – then one for the 4th of July Committee and one for Livingston High School and then go from there.

Council Member Vierra asked if you don’t go with rotation, but go with the lottery, can the same organization receive it two years in a row?

City Manager Ramirez mentioned the other thing is the absorption – non-profits not being able to make enough money. He knows there has been talk about six booths. He asked Superintendent Benoit if she knows how many booths would be okay.

Council Member Samra thinks they must have a firm cut off date and time. If they must submit their paperwork on any given day and time, they cannot be late. There are no excuses because they had plenty of time. You can’t hold up the entire process.

Council Member Vierra asked how many booths the high school had this year.

Superintendent Benoit replied, “Four.”

Council Member Vierra stated he can say they only cleared under $7,000 because he does the bookkeeping at the high school.

Mayor Espinoza said he helped in one of the booths and they made about $6,000 or $7,000.

Council Member Vierra said there are costs involved. It isn’t just the fireworks. There are all kinds of other things you have to pay for.

Council Member Land stated with the economy the way it is nowadays, people have to prioritize what they spend their money on and fireworks maybe is not at the top of their list, but making some money is better than nothing at all.

Discussion followed.

Council Member Land asked City Attorney Sanchez how they grandfather a booth that is not a non-profit if in the City Ordinance it says they have to be non-profit.

City Attorney Sanchez replied Mr. Valadez said the 4th of July Committee is willing to become a non-profit organization. Another way is to open it up, but he thinks the standard is usually to have non profits for these types of booths.

City Attorney Sanchez added that with an ordinance change, they can be a little more flexible.

Mayor Espinoza thinks by state law all vendors have to be non-profit.

City Attorney Sanchez said that is stated in the Health and Safety Code and that is what they would look at, but there are non-profit requirements and that is why it hasn’t been opened. He believes some cities open it up to for profits as well, so they would have to look at that.

Council Member Vierra asked why would they do that when they are trying to help the youth? He doesn’t consider the 4th of July Committee a for-profit organization even if they don’t have a non-profit status.

City Attorney Sanchez said he is not talking about them.

Council Member Land asked if grandfathering them in would be contingent upon them becoming non-profit and getting a 501C-3?

City Attorney Sanchez replied, “Yes, to make it consistent with the requirements they have for everybody else.”

Council Member Land said then Council has to decide if they want to grandfather in any organizations. If so, who are they? And secondly whether or not they want rotation lists or lottery.

Council Member Vierra stated only Madera allows profit making, all other cities are non-profit.

Council Member Samra said another thing for Council to consider is if they want to allow the fireworks to end at midnight on the 4th of July or go beyond the 4th of July. Currently they are not allowed past the 4th of July. This is tricky because if the 4th of July Committee puts the event together on the 5th or the 6th of July, the people are going to be confused. They will want to continue to do the fireworks after the 4th of July. They 4th of July Committee should hold their fireworks and all events on the 4th of July or Council should amend the ordinance.

City Attorney Sanchez said he knows the recommendation says discharge until July 6th, but the law – the Health and Safety Code deals with the actual retail of the fireworks. Up to July 6th, maybe Cal-Fire or the Police Department have actual details on the discharging of fireworks. He knows that in surrounding jurisdictions most stop fireworks on the 4th of July. Only one jurisdiction has it until July 6th. Cal-Fire has a big pamphlet of fireworks issues and retail and they may want to share why that date is important.

Council Member Samra said it seems that illegal fireworks are starting to overtake the safe and sound ones. He thinks there must be consequences of some magnitude to have people rethink. We should consider stiffer penalties and fines if they are using non State Marshall approved fireworks. This year we had more illegal ones than legal ones and that might have triggered a decrease in sales too. First of all, they are not safe. Maybe while the City is revising the ordinance, they need to take care of it at the same time.

City Attorney Sanchez said staff can look at that; however, having illegal fireworks is already a misdemeanor under the Penal Code.

Council Member Samra said he refers to the City issuing a larger fine.

Chief Chavez said he did a presentation during the 4th of July. He knows there is a purchase time and a cut-off time for purchasing fireworks and a specific date of July 6th, but illegal fireworks are prohibited anytime.

Council Member Vierra thinks that what Council Member Samra is trying to say is the City should have a stiffer ordinance so residents can only buy the safe fireworks.

City Manager Ramirez wanted to take the opportunity to thank Dwight Good, Fire Captain for his promotion and asked for a round of applause for Mr. Good for helping out in Livingston.

Chief Chavez said he couldn’t actually find the Code, but believes discharging fireworks is allowed until July 6th per the Health and Safety Code.

City Attorney Sanchez believes its 12:00 noon on the 28th of June through 12:00 noon on the 6th of July and that is for them getting a license through the State. They are limited to sell during those times and he believes the local jurisdictions cut it off early on the 4th of July.

Megan Warren, Phantom Fireworks, said it’s usually the organization that makes arrangements with Phantom Fireworks and they tell Phantom when they are ready to get their product picked up, so it’s totally up to them. Phantom only wants their business to be successful and they help out the best they can.

Discussion followed.

Chief Chavez said he found the Code. They can purchase up to the 6th of July, but the Livingston Municipal Code was a little more restrictive limiting discharge to the 4th of July. Chief Chavez said this year because there were families out there with their fireworks, the officers had a little bit more discretion, but definitely after the 6th of July, it was no way.

Council Member Land commented so as far as grandfathering in, she is okay with giving two booths to schools in general, not necessarily to the high school only. This way in case the Livingston Union School District decides they want to come onboard they would get one and if not, then the high school would have two. Then grandfathering in one for the Livingston 4th of July Committee contingent upon them getting a 501C-3 and then we would have two other booths because there are only four on the list now. She personally prefers the lottery because she thinks it’s less of a hassle for the Recreation Department to deal with rather than a rotation list.

Mayor Pro-Tem Aguilar thinks they first should open it up before saying let’s give one to the high school or to the elementary school. Of course she agrees with the 4th of July Committee because she knows that’s for the citizens and is actually money they give back to the community.

Mayor Pro-Tem Aguilar said that is, of course, with the condition that they become a 501C-3.

Mayor Pro-Tem. Aguilar asked if Council agrees to send it out to the public before making any decisions.

Mayor Espinoza thinks that is the main thing.

City Attorney Sanchez said if Council wants to send it out to the public to get more input and not have the City Attorney work on an ordinance yet, he thinks staff can produce more specific examples such as: Here’s an example of certain groups, such as: One for the 4th of July Committee; two for schools; three for lottery. Here’s a process for the lottery of how it would work. Here is the process for the rotation.

City Attorney Sanchez said it seems Council is ready for another discussion and not for an actual ordinance. He asked is that what he is hearing that you want one more discussion with more specific examples and input from the public.

Mayor Espinoza replied, “Yes.”

M/S Espinoza/Aguilar to advertise and give direction to Superintendent Benoit to come back and bring more specifics for next time and Council will go from there. The motion carried 5-0 by the following roll call vote:

AYES: Council Members: Aguilar, Espinoza, Land, Samra and Vierra

NOES; Council Members: None

ABSENT: Council Members: None

ADJOURNMENT

The meeting was adjourned by consensus at 8:58 p.m.

_________________________________

City Clerk of the City of Livingston

APPROVED: December 18, 2012

______________________________

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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