PRESENT:

Vice Mayor Melinda Hamilton

Councilmember John Howe

Councilmember Otto Lee

Councilmember Ron Swegles

Councilmember Christopher Moylan

Councilmember David Whittum

ABSENT:

Mayor Anthony Spitaleri (excused)

STAFF PRESENT:

City Manager Amy Chan

Assistant City Manager Robert Walker

City Attorney David Kahn

Community Development Director Hanson Hom

Director of Public Works Marvin Rose

Assistant to the City Manager Coryn Campbell

Planning Officer Trudi Ryan

Director of Information Technology Cuong Nguyen

Assistant City Attorney Rebecca Moon

Transportation and Traffic Manager Jack Witthaus

City Clerk Gail Borkowski

1.A.

Approval of Information/Action Items – Council Directions to Staff

1.B.

RTC 08-196

List of Claims and Bills Approved for Payment by the City Manager – Lists No. 405 & 406

Staff Recommendation: Council reviews the attached lists of bills.

1.C.

RTC 08-187

Approval of Budget Modification No. 56 in the Amount of $63,740 to Cover the Cost of Emergency Repairs to Damaged Buildings due to Fire and Storms

Staff Recommendation: Council approves Budget Modification No. 56 in the amount of $63,740 to cover unforeseen expenditures related to the Kiln Room fire and the damage to City facilities caused by a severe winter storm.

1.D.

RTC 08-167

Notice of Intent to Apply for, Accept, and Appropriate a Grant in the Amount of $25,000 from the Severns Family Foundation for CPR Training in High Schools and Budget Modification No. 55

Staff Recommendation: Council authorizes staff to apply for, accept and, if the grant is awarded, appropriate the Severns Family Grant monies and approve Budget Modification No. 55.

1.E.

RTC 08-201

Traffic and Transportation Services Budget Overrun Due to Increased Demand for Traffic Signal Services and Emergency Repairs and Approval of Budget Modification No. 59

Director of Public Works Marvin Rose stated there is a procedural error in the agenda. The agenda shows a recommendation that was from a prior report. Director Rose read into the record the actual recommendation as follows:

Staff Recommendation: Budget Modification No. 59 be approved in the amount of $325,000; to reappropriate funds from the Public Works Pavement Operations Program; to appropriate funds from the General Fund 20-Year RAP Reserve into the operating budget for the Traffic and Transportation Services program to cover this overage; increase costs for future years will be addressed in the next recommended budget.

Councilmember Howe verified that the repair on this intersection was not part of the normal budget process because it came as a surprise. Councilmember Howe stated staff was innovative and found funding to assist with this issue.

Councilmember Howe questioned what source of funds is normally used for traffic signal intersections. Director Rose stated typically the operating program handles the maintenance and operations of the traffic signals and staff does anticipate funding for damage within the operating program that is either general or gas tax funds because it is gas tax eligible.

Councilmember Howe verified with Director Rose that the City receives approximately
$1.4 million in gas tax funds which are used for more routine things that staff has already planned. Councilmember Howe inquired if $185,000 was taken out of the future gas tax funds, what would be the direct result and Director Rose explained that it would have the potential of delaying gas tax funded projects by that amount of funding. Councilmember Howe verified with Director Rose that the $185,000 would be roughly 11 to 12 percent of what would be received in a year.

Councilmember Moylan inquired if staff anticipates that some of the $185,000 is expected to be returned by recovery and Director Rose responded that all of the $185,000 is recovery restitution from damage to property and other things. Staff is suggesting that revenue is available for this use.

Councilmember Moylan verified with Director Rose that nothing would be taken out of the reserve. Director Rose explained that staff estimates damage every year based on history. This past year was a bad year with traffic signal damage and construction operations going on within the City. No money will be coming out of reserves and that staff will use the recovery money they have to cover this overage in repairs.

Public hearing opened at 7:25 p.m.

No speakers.

Public hearing closed at 7:25 p.m.

MOTION: Councilmember Howe moved and Councilmember Swegles seconded to approve the revised staff recommendation as presented by Director Rose: Council approves Budget Modification No. 59 in the amount of $325,000; to reappropriate funds from the Public Works Pavement Operations Program;

with: funds are not to be appropriated from the General Fund 20-Year RAP Reserve

and to take the $185,000 of future gas tax money and put into Council set-aside using $185,000 of future gas tax money. The $185,000 can be a loan from the General Fund for one year and use the future gas tax money for this purpose, and increased costs for future years will be addressed in the next recommended budget.

Councilmember Howe stated the columns should be kept straight in that what is gas tax and traffic related should come out of traffic related and the 20 Year Rap Reserve should be left alone for this purpose. Council should use the $185,000 because the Council set aside fund has been drained for the next 18 months.

City Manager Amy Chan explained that if this motion were to pass, staff would come back to Council and identify which projects would not be undertaken in the coming year because the future gas tax funds have already been programmed. Staff anticipates future gas tax funds throughout the twenty year plan; therefore, some projects would need to be deferred.

Councilmember Howe stated this was a surprise to staff and asked what staff would do if the $185,000 was not available. City Manager Chan stated staff’s intent is to use some of the restitution fund to support some of these repairs. City Manager Chan stated the options would be to not make the repairs; however the restitution funds can be used to make the repairs when no additional fund has been allocated. City Manager Chan explained this is a planned reserve.

Councilmember Whittum stated the City has a digital marquee for $195,000 and Council could suggest staff evaluate the elimination of that item from next year’s budget. Councilmember Whittum stated removal of the proposed digital marquee might actually reduce the likelihood of accidents from drivers attempting to read the marquee.

Councilmember Moylan stated the 20 year reserve is higher than expected because the City has been paid from accidents that have occurred involving City signs. Councilmember Moylan stated it makes sense to put money into the reserve and pull funds back out of the fund to fix the signs. This is the best way to link the source of revenue and the expenditures. Councilmember Moylan stated he agrees with the basic philosophy behind the motion; however he supports the staff recommendation.

Councilmember Moylan stated the gas tax funds fund the City’s congestion management program and he would be very reluctant to imperil any of those projects, given the severe congestion issues in various parts of the City.

City Manager Chan clarified that the digital marquee is funded from the general fund, not the gas tax fund.

Councilmember Lee stated he will not be able to support the motion as he does not know what would be taken out of the gas tax. Councilmember Lee stated he supports the staff recommendation.

VOTE: 2-4 (Councilmembers Moylan, Lee, Vice Mayor Hamilton, Councilmember Whittum dissented and Mayor Spitaleri absent).

MOTION FAILED

MOTION: Councilmember Lee moved and Councilmember Moylan seconded to approve the revised staff recommendation as presented by Director Rose: Council approves Budget Modification No. 59 in the amount of $325,000; to reappropriate funds from the Public Works Pavement Operations Program; to appropriate funds from the General Fund 20-Year RAP Reserve into the operating budget for the Traffic and Transportation Services program to cover this overage; increased costs for future years will be addressed in the next recommended budget.

Councilmember Whittum offered a friendly amendment to consider cutting the digital marquee in the amount of $195,000 from the budget.

Friendly amendment not accepted.

VOTE: 5-1 (Councilmember Howe dissented; Mayor Spitaleri absent)

1.F.

 RTC 08-198

Acceptance and Appropriation of Traffic Safe Communities Network of Santa Clara County Funds and Budget Modification No. 62

Staff Recommendation: Council accepts and appropriates the TSCN monies for the Be Aware of Your Speed Campaign and approves Budget Modification No. 62.

1.G.

RTC 08-195

Award of Contract for Liquid Chlorine and Liquid Sulfur Dioxide (F0703-78)

Staff Recommendation: Council awards a purchase order, in substantially the same form as the attached draft and in the amount of $419.90 per ton for Liquid Chlorine and $415.90 per ton for Liquid Sulfur Dioxide for one year from the date of award to Olin Corporation, for an annual estimated cost of $167,360.

1.H.

RTC 08-192

Award of Contract for the Maintenance of the City’s Radio Communication Systems (F0706-100)

Staff Recommendation: Council awards a one-year contract, in substantially the same form as the attached draft and in an amount not to exceed $180,927, to Motorola Incorporated for the maintenance of the City’s radio communications systems.

1.I.

RTC 08-191

Award of Bid No. F0704-89 for Traffic Signal Reconstruction at Mary and Fremont Avenues

Staff Recommendation:

·       Council awards a contract, in substantially the same form as the attached draft and in the amount of $419,142 to Tennyson Electric Incorporated for the traffic signal reconstruction at Mary and Fremont Avenues; and

·       Council approves a project contingency in the amount of $62,871.

1.J.

RTC 08-200

Award of Request for Proposals No. F0703-77 for Polymer Flocculant for the Water Pollution Control Plant

Staff Recommendation: Council awards a three-year contract, in substantially the same form as the attached draft, and in an amount not to exceed $1,000,000, to Polydyne Incorporated of Riceboro, Georgia, to provide polymer flocculant and related technical support to the Water Pollution Control Plant.

1.K.

RTC 08-197

FY 2007/2008 Department of Employment Development Expenditure and Revenue Update and Approval of Budget Modification No. 60

Staff Recommendation: Council approves Budget Modification No. 60.

1.L.

No. 2872-08

Adoption of Ordinance No. 2872-08 amending The Zoning Plan, Zoning Districts Map, to Rezone Certain Property Located at 408 Flora Vista Avenue, 421 South Bayview Avenue and 420 Flora Vista Avenue from R-0 (Low Density Residential) and R-2 (Low Medium Density Residential) to R-1.5/PD (Low Medium Density Residential/Planned Development) and R-2/PD (Low Medium Density Residential/Planned Development) Zoning District

Staff Recommendation: Council approves the second reading of Ordinance No. 2872-08.

2.

RTC 08-180

Study Issues Process (Study Issue)

Assistant to the City Manager Coryn Campbell presented the staff report.

Councilmember Whittum inquired that hypothetically, if a councilmember was sworn in on January 8 and the study issues workshop was held on January 25, how would a new councilmember submit a study issue. Councilmember Whittum inquired whether the new councilmember would submit a study issue at their very first meeting after they were hypothetically sworn in on January 8. Councilmember Whittum inquired if the study issue process under the staff recommendation is still available to new councilmembers or would they be shut out of the process. Assistant to the City Manager Campbell explained that the study issue binder would go to the newly elected councilmember but they would not be able to vote on the items until the first meeting in January when they are sworn in. At the first meeting in January, the item would need to be voted on by Council.

Councilmember Whittum inquired how the newly elected official could submit study issue items when they are not yet sworn into office. Assistant to the City Manager Campbell stated a councilmember-elect can submit potential study issues in advance prior to being seated and the study issues would then be voted on when the councilmember took office.

Vice Mayor Hamilton verified with the Assistant to the City Manager Campbell that staff is proposing to put an action item on the agenda three to four times per year in which Council would vote on study issues. Vice Mayor Hamilton inquired as to how different that process would be from the current process of preparing study issue papers. Vice Mayor Hamilton stated that it would be helpful to have background information on the item prior to voting on it; however, that would essentially require staff to produce a study issue paper. Assistant to the City Manager Campbell stated the concept is to allow Council the ability to introduce their study issues at the Council meeting and at that time, Council could direct staff to prepare a study issue staff report; however, that would require considerably more work. Vice Mayor Hamilton verified with Assistant to the City Manager Campbell that generating a staff report per proposed study issue was not part of this proposal.

Vice Mayor Hamilton verified with Assistant to the City Manager Campbell that the study issue process Choice Rank voting is an option that can be considered.

Public hearing opened at 8:00 p.m.

Jim Griffith stated the requirement that four Councilmembers vote in support of any proposed study issue is an unusually high requirement for support. Griffith stated obtaining two or three councilmembers support for a study issue is more appropriate.

Public hearing closed at 8:01 p.m.

Vice Mayor Hamilton requested her fellow Councilmembers make separate motions for each section of the staff recommendations.

City Attorney David Kahn responded to Councilmember Whittum’s earlier question regarding the ability for new councilmembers to vote on study issues. City Attorney Kahn stated if the matter on the agenda is to consider, vote and rank possible study issues then it would be possible to raise and vote on new study issues.

Councilmember Moylan verified that Vice Mayor Hamilton is requesting six separate motions on the sections. Councilmember Moylan explained that he is in favor of the staff recommendations on the last five sections. Councilmember Moylan stated he has an alternative for section A.1. Study Issue Sponsorship.

MOTION: Councilmember Moylan moved and Councilmember Lee seconded to approve A.1 Study Issue Sponsorship (as modified from staff recommendation in bold): Require that a proposed study issue receive support from two councilmembers in order for staff to prepare a study issue paper, and for the issue to be considered at the Council Study Issues Workshop. An action item to propose study issues would be added to Council agendas three to four times a year.

Councilmember Moylan stated he would be open to a friendly amendment that would include councilmember-elects being allowed to support a study issue, which would solve the problem of not getting to rank study issues.

Vice Mayor Hamilton stated Council has previously run into issues giving privileges to Councilmember-elects who have not actually been seated yet and questioned whether a Councilmember-elect would have the ability to vote prior to being seated.

City Manager Chan clarified that once councilmembers are sworn in they can act on any item on the posted agenda. City Manager Chan stated the staff recommendation is to allow Council the ability to formally raise study issues and receive a certain number of votes for the item to go forward. A newly-elected councilmember who has been sworn in can suggest study issue items and have a discussion at that meeting at which time staff can take that information and move forward with the study issues workshop. It would not be legal for councilmember-elects to have the ability to vote on any items; however, based on the staff recommendation, there does not appear to be a timing issue.

Councilmember Moylan clarified that what he meant by a councilmember-elect is the time between when the votes have been counted and the councilmember has officially taken office. Allowing the councilmember-elect to have the ability to suggest study issue items and to be a part of the number needed to sponsor a study issue would eliminate Councilmember Whittum’s concern. This is not an issue of voting on an item as a councilmember, rather it involves who may co-sponsor a study issue. Councilmember Moylan restated that if Council wants to include councilmember-elects as those who may sponsor study issues, that would be acceptable and he would be happy to add that to his motion.

Councilmember Whittum offered a friendly amendment to change the word “and” in the motion to “but not”. This change would relieve staff of any responsibility for study issues that do not have two sponsors. Councilmember Whittum explained that the problem is that the councilmember-elect will not have an opportunity to discuss any of this. Councilmember Moylan stated Councilmember Whittum’s syntax gives the opposite meaning of his explanation. Councilmember Moylan stated he will not accept the friendly amendment.

Councilmember Whittum offered a friendly amendment to add a sentence which states “this rule will not apply to newly appointed councilmembers.” Councilmember Moylan stated he will not accept the friendly amendment.

Councilmember Moylan stated if his colleagues wish to add an amendment stating that a Councilmember and councilmember-elect may sponsor a study issue in December, he would accept that as an amendment. Councilmember Moylan explained that he would accept an amendment allowing councilmember-elects to be included in the sponsorship of a study issue.

City Attorney Kahn stated it is not possible to allow a councilmember-elect to co-sponsor a study issue. Councilmember Moylan asked how allowing a councilmember-elect this opportunity is different than board and commission members submitting a study issue. City Attorney Kahn explained that a board or commission member can propose a study issue but it requires the support of a councilmember to move it forward. A councilmember-elect could propose a study issue but it would require sitting councilmembers to move it forward.

Councilmember Moylan stated he was under the impression that board and commission members could sponsor study issues. Councilmember Moylan stated a councilmember-elect should not be less empowered than a board or commission member.

City Manager Chan stated board and commission members can suggest items and then the entire board or commission must have four members vote in support of the study issues before it can move forward to Council for consideration. City Manager Chan stated a councilmember-elect can suggest a study issue the same as any public members. The issue would need to be supported by a certain number of sitting councilmembers. City Manager Chan explained that staff can also place this item on the agenda for the first week of January after the new councilmembers swearing in. At that point the new councilmember could raise their study issue and obtain another councilmembers support.

Councilmember Moylan asked the city attorney if a councilmember-elect could co-sponsor a study issue with a sitting councilmember. City Attorney Kahn explained that because the seating of new councilmembers was moved to the first week of January, legally until that has happened, the councilmember-elect does not have any authority to act on behalf of the City.

Councilmember Moylan stated that based on the city attorney’s explanation, there is no way for a councilmember-elect to sponsor a study issue and therefore the motion stands.

Councilmember Swegles offered a friendly amendment requiring three members of the Council to approve a study issue. Councilmember Swegles stated he is suggesting three Councilmembers because there are a number of study issues and three is closer to a majority in support, which in turn could reduce the number of study issue items.

Councilmember Moylan agreed that the more Councilmembers who sponsor a study issue, the less study issues there would be; however, the problem lies in not being able to view the staff report prior to deciding on whether or not to support the issue. Councilmember Moylan stated that adding one more person, for a total of two, will help clean up the problem of having too many study issues to rank. Councilmember Moylan explained that he is more worried about losing a good study issue than having too many. Councilmember Moylan explained that he prefers to add the amount of Councilmembers needed to sponsor a study issue incrementally. Councilmember Moylan stated he will not accept the friendly amendment.

Councilmember Whittum offered a friendly amendment to add the following sentence to the motion: “Issues proposed by a new councilmember will be considered at the study issues workshop even if there is no staff work for it.”

Councilmember Moylan stated it is critical to know how many hours a study issue will take and what staff thinks the result of the study would be. If there was not any staff work included, it would not be worth ranking the item. Friendly amendment not accepted.

Councilmember Moylan stated that cleaning up the back log of study issues would require limiting study issues that have been deferred for two years. Councilmember Moylan stated he will add this to his motion

Amended MOTION: Councilmember Moylan moved and Councilmember Lee moved to approve Alternative A.1 Study Issue Sponsorship (as modified from staff recommendation in bold). Require that a proposed study issue receive support from two councilmembers in order for staff to prepare a study issue paper, and for the issue to be considered at the Council Study Issues Workshop. An action item to propose study issues would be added to Council agendas three to four times a year.

add If the study issue has been dropped by Council in the last two years, it would require at least four votes in support of the study issue for it to move forward.

Vice Mayor Hamilton stated she objects to the amendment.

Councilmember Whittum stated this change raises an additional barrier. Councilmember Whittum explained that if this barrier were in place this year, a number of approved items would not have been approved. Councilmember Whittum stated the point is to discuss these things in public. Councilmember Whittum stated he is opposed to changing the study issue primarily because of the effect it will have on newly-elected councilmembers.

Vice Mayor Hamilton stated she will not support the motion due to the amendment to the original motion requiring four votes in support of deferred items. Vice Mayor Hamilton stated she disagrees with adding study issue reviews every three or four months as it is not a good use of Council’s time. Vice Mayor Hamilton stated she does agree with having two councilmembers support a study issue.

Vice Mayor Hamilton stated she disagrees that what Council does is not in front of the public. Vice Mayor Hamilton stated the study issues workshop is fully open to the public.

Councilmember Swegles stated he is in favor of having three Councilmembers support a study issue as opposed to two.

VOTE: 3-3 (Vice Mayor Hamilton and Councilmembers Whittum and Swegles dissented; Mayor Spitaleri absent)

MOTION FAILED.

MOTION: Councilmember Lee moved and Councilmember Moylan seconded to approve A.1 Study Issue Sponsorship (as modified from staff recommendation in bold). Require that a proposed study issue receive support from two councilmembers in order for staff to prepare a study issue paper, and for the issue to be considered at the Council Study Issues Workshop. An action item to propose study issues would be added to Council agendas three to four times a year.

MOTION FAILED.

VOTE: 3-3 (Councilmembers Howe, Swegles and Whittum dissented; Mayor Spitaleri absent)