MINUTES OF THE CITY COUNCIL

SAN JOSÉ, CALIFORNIA TUESDAY, DECEMBER 10, 2002

The Council of the City of San José convened in Regular Session at 10:00 a.m. in Council Chambers at City Hall.

Present: Council Members - Campos, Chavez, Cortese, Dando, Diquisto, LeZotte, Reed, Shirakawa Jr., Williams, Yeager; Gonzales.

Absent: Council Members - None.

Upon motion unanimously adopted, the City Council recessed to Closed Session at 10:02 a.m. in Room 600 to (A) Confer with Legal Counsel with respect to existing litigation pursuant to Government Code Section 54956.9 subsection (a); (1) to consider the case of Li v. City of San José; (2) to consider case of Miller, et al v. City of San José, et al. (B) Confer with Legal Counsel with respect to anticipated litigation of four (4) matters pursuant to subsection (c) of Section 54956.9 of the Government Code.

By unanimous consent, Council reconvened from Closed Session and recessed at 11:30 a.m. and reconvened at 1:37 p.m. in Council Chambers, City Hall.

Present: Council Members - Campos, Chavez, Cortese, Dando, Diquisto, LeZotte, Reed, Shirakawa Jr., Williams, Yeager; Gonzales.

Absent: Council Members - None.

Invocation

Mayor Gonzales introduced Pastor Dave Sawkins of South Valley Christian Church who delivered the Invocation.

Pledge of Allegiance

Mayor Gonzales led the Pledge of Allegiance.

Orders of the Day

Upon motion by Council Member Chavez, seconded by Council Member Reed and unanimously carried, Item 7.1 was dropped, and the Orders of the Day and the Amended Agenda were approved. Vote: 10-0-1-0. Absent: Shirakawa, Jr.

CEREMONIAL ITEMS

1.1 Presentation of the Gold Pinnacle Awards by the International Festival & Events Association for the San José Holiday Parade. (Parks, Recreation and Neighborhood Services)

Documents Filed: None.

Discussion/Action: Mayor Gonzales joined by Director of Parks, Recreation and Neighborhood Services Sara Hensley, Special Events and Projects Supervisor Ed Bautista, and his Staff, were presented Gold Pinnacle awards by Phil Purevich, Member of the Presidents Council of the International Festival and Events. The awards were for outstanding work in the industry; one for Best Sponsor Solicitation Video for Budget under $250,000, and the second for Best Company Image Pieces Budget under $250,000, each for the San Jose Holiday Parade. Mr. Purevich stated it was a great distinction and honor for an event to win two awards. Ed Bautista accepted the award, on behalf of the City of San José.

CONSENT CALENDAR

Upon motion by Council Member Chavez, seconded by Council Member Williams, and unanimously carried, the Consent Calendar was approved and the below listed actions were taken as indicated. Vote: 10-0-1-0. Absent: Shirakawa, Jr.

2.2 Final adoption of ordinances:

(a) ORD. NO. 26783 – Amends Chapter 2.04 of Title 2 of the San José Municipal Code to provide for City of San José departmental reorganizations and changes in functions and duties of City departments.

Documents Filed: Proof of Publication of the title of Ordinance No. 26783 executed on December 3, 2002, submitted by the City Clerk.

Discussion/Action: Mayor Gonzales called for public testimony. William Garbett spoke in opposition. Ordinance No. 26783 was adopted. Vote: 10-0-1-0. Absent: Shirakawa, Jr.

(b) ORD. NO. 26786 – Amends Section 4.08.070 of Chapter 4.08 of Title 4 of the San José Municipal Code to add gender identity as a basis of discrimination which would result in a violation of Chapter 4.08 entitled Nondiscrimination Requirements for Contracts and amending Section 2.08.3030 of Chapter 2.08 of Title 2 to include gender identity discrimination as a matter affecting human rights and covered under the functions, powers, and duties of the Human Rights Commission.

Documents Filed: Proof of Publication of the title of Ordinance No. 26786 executed on December 3, 2002, submitted by the City Clerk.

Discussion/Action: Ordinance No. 26786 was adopted. Vote: 10-0-1-0. Absent: Shirakawa, Jr.

2.3 Approval of City Manager Del D. Borgsdorf’s travel to Houston, Texas, from January 9 – 11, 2003, to participate in the Large Cities Executive Forum, to discuss key issues affecting large cities with populations of 200,000 or more. CEQA: Not a Project. (City Manager's Office)

Documents Filed: Memorandum from City Manager Del D. Borgsdorf, dated November 25, 2002, recommending approval of travel to Houston, Texas.

Discussion/Action: City Manager Del D. Borgsdorf’s travel to Houston, Texas from January 9-11, 2003, was approved. Vote: 10-0-1-0. Absent: Shirakawa, Jr.

2.4 Adoption of a resolution authorizing the City Manager to:

(a) Execute an agreement for the conveyance of certain easements across Water Pollution Control Plant (WPCP) lands to Pacific Gas & Electric Company, upon approval of the agreement by the City Council of the City of Santa Clara; and

(b) Execute documents necessary for the conveyance of a non-exclusive ingress/egress easement and a non-exclusive easement for electrical transmission lines across Water Pollution Control Plant property [Assessor Parcels 015-31-008, 015-31-045 and 015-31-050].

CEQA: Exempt, PP02-11-355. Council District 4. (Environmental Services/Public Works)

Documents Filed: (1) Memorandum from Director of Environmental Services Carl W. Mosher, and Director of Public Works Katy Allen, dated November 22, 2002, recommending Council authorize the City Manager to execute said agreement for conveyance of certain easements to Pacific Gas & Electric Company and execute documents necessary for the conveyance of said easements. (2) Letter from the Treatment Plant Advisory Committee dated November 14, 2002, stating concurrence with the Staff recommendation.

Discussion/Action: Resolution No. 71327, entitled: “A Resolution of the Council of the City of San José Authorizing the City Manager to Execute an Agreement for the Conveyance of Certain Easements Across Water Pollution Control Plan Buffer Lands to Pacific Gas & Electric Company and To Execute Documents Necessary for the Conveyance of a Non-Exclusive Access and Utility Easement and An Overhead Transmission Line Easement”, was adopted. Vote: 10-0-1-0. Absent: Shirakawa, Jr.

2.5 Approval of award of open purchase orders for supplies, materials, equipment, and services for FY 2002-2003 #16, and authorization for the Director of General Services to execute the purchase orders. CEQA: Not a Project. (General Services)

Documents Filed: Memorandum from Director of General Services Department Jose Obregon, dated November 18, 2002, recommending Council approve award of open purchase orders and authorize the Director of General Services to execute the purchase orders.

Discussion/Action: The award of open purchase orders List No. 16 for Fiscal Year 2002-2003 was approved and execution of the purchase orders authorized. Vote: 10-0-1-0. Absent: Shirakawa, Jr.

2.6 Approval of the Mayor's (CLEO) re-appointment of current members to the Workforce Investment Board of Directors for a second two-year term. (Mayor)

Documents Filed: None.

Discussion/Action: This item was deferred to December 17, 2002.

2.7 Adoption of a resolution summarily vacating the entire Public Service Easement lying in the northerly 24 feet of lot 136, Tract 5335, also known as 1571 Calle de Stuarda. CEQA: Not a Project. Council District 9. (Public Works)

Documents Filed: Memorandum from Director of Public Works Katy Allen, dated November 18, 2002, recommending Council adopt said resolution summarily vacating the entire Public Service Easement of lot 136, Tract 5335.

Discussion/Action: Resolution No. 71328, entitled: “A Resolution of the Council of the City of San José Summarily Vacating all of that Portion of the Public Service Easement Lying Across the Northerly 24 Feet of Lot 136 of Tract 5335, Also Known as 1571 Calle De Stuarda”, was adopted. Vote: 10-0-1-0. Absent: Shirakawa, Jr.

2.8 Report on bids and award of contract for the Fire Station Diesel Exhaust Phase VI - Revised Project to the low bidder, Blocka Construction, Inc., in the amount of $114,900, and approval of a contingency in the amount of $11,490. CEQA: Exempt, PP02-07-185. (Public Works)

Documents Filed: Memorandum from Director of Public Works Katy Allen, dated November 18, 2002, recommending award of said contract, with related contingency to the low bidder, Blocka Construction, Inc.

Discussion/Action: The award of said contract, with related contingency, to the low bidder, Blocka Contruction, Inc. was approved and its execution authorized. Vote: 10-0-1-0. Absent: Shirakawa, Jr.

2.9 Approval of an agreement to purchase a portion of a certain property owned by Charles Frank Perrotta, a single man, as his sole and separate property, located at 33 Lewis Road, in the amount of $62,000, and authorizing the Director of Public Works to execute any additional documents required to complete the transaction. CEQA: Exempt, PP02-11-322. Council District 7. (Public Works)

Documents Filed: Memorandum from Director of Public Works Katy Allen, dated December 2, 2002, recommending Council approve said purchase agreement with Charles Frank Perrotta.

Discussion/Action: The purchase agreement with Charles Frank Perrotta was approved and the Director of Public Works authorized to execute any additional documents required to complete the transaction. Vote: 10-0-1-0. Absent: Shirakawa, Jr.

2.10 Adoption of a resolution to consider the establishment of Rule 20A Underground Utility District bounded by Interstate 880, Route 87, and Coleman Avenue and setting a public hearing on January 21, 2003 at 1:30 p.m. CEQA: Exempt PP02-10-306. Council District 3. (Public Works)

Documents Filed: Memorandum from Director of Public Works Katy Allen, dated November 18, 2002, recommending Council adopt said resolution.

Discussion/Action: Mayor Gonzales called for public testimony. William Garbett spoke in opposition. Resolution No. 71329, entitled: “A Resolution of the Council of the City of San José Setting the Time and Place for a Public Hearing to Consider the Establishment of Rule 20A Underground Utility District Bounded by Interstate 880, Route 87 and Coleman Avenue on December 10, 2002 at 1:30 p.m.”, was adopted. Vote: 10-0-1-0. Absent: Shirakawa, Jr.

2.11 Adoption of a resolution:

(a) Accepting the 2002-2003 Hazardous Vegetation Commencement Report compiled by the Office of the Santa Clara County Fire Marshal; and

(b) Declaring that seasonal and recurrent weeds and refuse that are or will be located on those properties identified in the report are a nuisance; and

(c) Directing the Office of the Santa Clara County Fire Marshal to mail notices of a public hearing before the City Council, on January 14, 2003 at 1:30 p.m. to property owners of affected real properties, pursuant to Chapter 9.12 of Title 9 of the San José Municipal Code and the Weed Abatement Agreement between the City of San José and the County of Santa Clara.

CEQA: Not a Project. (Planning, Building and Code Enforcement)

Documents Filed: Memorandum from Director of Planning, Building and Code Enforcement Stephen M. Haase, dated November 18, 2002, recommending Council adopt said resolution.

Discussion/Action: Resolution No. 71330, entitled: “A Resolution of the Council of the City of San José Accepting and Confirming the Hazardous Vegetation Commencement Report for the Year 2002-2003 Compiled by the Office of the Santa Clara County Fire Marshall; Declaring Certain Noxious or Dangerous Seasonal and Recurrent Weeds are Growing or are Likely to Grow Upon Certain Public and Private Properties or that Refuse is Situated or Likely to be Situated upon Certain Properties within the City of San José; Declaring such Seasonal and/or Recurrent Weeds and Refuse a Public Nuisance; and Directing that Notice of this Resolution and a Public Hearing on the Report on January 14, 2003 at 1:30 p.m. be given Pursuant to Chapter 9.12 of the San José Municipal Code”, was adopted. Vote: 10-0-1-0. Absent: Shirakawa, Jr.

2.12 Approval of a proposed City Event, as provided in the San José Management Agreement, for use of the HP Pavilion on December 18, 2002, for Jingle Ball Concert benefiting Ronald McDonald House Charities. CEQA: Not a Project. (San José Arena Authority)

Documents Filed: Memorandum from Executive Director, San José Arena Authority Chris Morrisey, dated November 25, 2002, recommending approval of a proposed City Event at the HP Pavilion.

Discussion/Action: The proposed City event was approved. Vote: 10-0-1-0. Absent: Shirakawa, Jr.

2.13 Approval of two community appointments to the Healthy Neighborhood Venture Fund Committee. (Mayor)

(Deferred from 12/3/02 – Item 2.9)

Documents Filed: Memorandum from Mayor Ron Gonzales, dated December 10, 2002, recommending that Council approve two community appointments of Juan Mendoza and Kathy Sutherland to the Healthy Neighborhood Venture Fund Committee.

Discussion/Action: The appointments of Juan Mendoza and Kathy Sutherland to the Healthy Neighborhood Venture Fund Committee were approved. Vote: 10-0-1-0. Absent: Shirakawa, Jr.

END OF CONSENT CALENDAR

STRATEGIC SUPPORT SERVICES

3.2 Report of the Rules in Lieu – November 27, 2002

Vice Mayor Dando, Chair

Documents Filed: In Lieu Rules/Agency Rules Committee Report of November 27, 2002.

(a) Redevelopment Agency Items reported out at Redevelopment Agency Meeting.

(b) City Council

(1) Review December 10, 2002 Draft Agenda.

The Committee recommended approval of the December 10, 2002 Agenda with two additions.

(2) Add New Items to December 3, 2002 Agenda.

The Committee recommended approval to the December 3, 2002 Agenda with 4 additions.

(c) City Council Committees

(1) Amendments to Council Committee Agendas

(a) Finance and Infrastructure Committee

The Committee recommended approval of the December 11, 2002 Finance and Infrastructure Committee Agenda with two additions.

(b) Economic Development and Environment Committee

None Filed.

(c) Education, Neighborhoods, Youth and Seniors Committee

The Committee recommended approval of the Education, Neighborhoods, Youth and Seniors Committee December 16, 2002 Agenda with one addition.

(d) Meeting Schedules. Attachment: Memorandum from Mayor Ron Gonzales dated December 9, 2003, recommending the Rules Committee approve the listed dates to schedule Study Sessions on the Departmental/Appointee Review meetings for the proposed 2003-2004 City and Redevelopment Agency budgets; and memorandum from the City Budget Director Larry Lisenbee, and Finance and Administration Director for Redevelopment Agency David Baum dated December 4, 2002, recommending the Rules Committee and City Council adopt the proposed 2003-2004 City and Redevelopment Agency Budget Calendar as presented in Attachment B and explained in this memorandum.

The Committee recommended approval of the Annual Joint Review of Capital Budgets by City Council, Redevelopment Agency Board and County Board of Supervisors to be held on December 9, 2002 at 3:30 p.m. in the County Board of Supervisors’ Chambers.

(e) The Public Record - There was none filed.

(f) Boards, Commissions and Committees - There were none.

(g) Council Referrals for Assignment to Appropriate Committee, Administration or Council Appointee - There were none.

(h) Administrative Reviews and Approval - There were none.

(i) Oral Communications - None was presented.

(j) Adjournment - The meeting was adjourned at 11:15 a.m.

Discussion/Action: Upon motion by Council Member Dando, seconded by Council Member Yeager, and unanimously carried, In-Lieu Rules/Agency Rules Committee report and actions of November 27, 2002 were accepted. Vote: 10-0-1-0. Absent: Shirakawa, Jr.

3.4 Adoption of a resolution issuing a preliminary assessment that the cable franchise issued to Gill Industries by Ordinance No. 22128 and which AT&T Broadband HC of California, LLC (hereinafter referred to as “AT&T”) purports to lawfully hold should not be renewed, and authorizing the City Manager to establish and commence the required administrative proceedings. (City Manager’s Office)

Documents Filed: (1) Memorandum from City Manager Del D. Borgsdorf, and City Attorney Richard Doyle, dated November 25, 2002, recommending Council adopt said resolution issuing a preliminary assessment that the cable franchise not be renewed, and authorize the City Manager to establish and commence the required administrative proceedings. (2) Memorandum from San José Community Media Access Corporation Chair Gerry DeYoung, dated December 10, 2002, recommending Council deny AT&T formal proposal for cable franchise renewal.

Discussion/Action: Mayor Gonzales expressed disappointment in the company change from AT&T to Comcast Corporation and stated it has been a very frustrating experience here in Silicon Valley that the City of San José has not been able to have cable related products delivered to constituents. He stated he understood that with company acquisitions, there is a need to allow new management to take over operations but he is inclined to agree with his colleagues regarding the extension that there has to be some concessions because the City is under a timing issue. Council Member Dando expressed frustration that while San José is the Capital of Silicon Valley, it has been a struggle to obtain basic cable services that the people in San José deserve, and there always seems to be a lack of good corporate faith. She stated that in this day and age, it is particularly important that San José’s leading corporations do everything they can to negotiate and provide services in good faith, and this is not happening with AT&T. She stated she is hopeful some corporate citizenship will evolve with the new company, Comcast Corporation.

Council Member Dando stated since Federal law requires the City to preliminarily deny or renew a franchise by early January and since Council has no interest in further delays, she moved approval of the Staff recommendations dated November 25, 2002, with three amendments: (1) Issuance of the preliminary assessment of denial to be effective on December 18, 2002; (2) Allow the new cable operator a period of time to conclude informal negotiations, the City Manager is authorized to negotiate and execute an extension to January 23, 2003 of the four month period to act, if a valid extension agreement is established the effective date of the preliminary assessment of denial would be further extended to the date provided in the extension agreement; (3) City Manager is further authorized to establish and commence the administrative hearing process required by the Cable Act. Council Member Chavez seconded the motion.

Scott Binder, Representative of Comcast Corporation, stated Comcast’s intention is to improve the technology available in San José, and to make great progress in the next year. He stated there are 53,000 homes in San José that have access to advance services, 429 miles of new plant construction, 63 of the miles done in the month of November, so Comcast is quickly trying to ramp that progress up. He stated Comcast’s intention is to accelerate the upgrade regardless of where they stand in this process, and promised the Council that Comcast has completed upgrades in other markets without completing new franchise agreements. He stated Comcast intends to continue with the upgrade process and bring new services to the community, and to resolve the past compliance issues with the franchise with an up-front payment and negotiate a reasonable fee that is less of a burden on the customers, and stated their number one priority is to deliver those services quickly. Gerry DeYoung, Chair of San José Media Access Corporation, stated their Board of Directors fully supports the Staff recommendation. He stated that San José Media Access Corporation is a new nonprofit organization that was established through a broad based community needs assessment and outreach process, and its purpose is to encourage and support the use of public and educational cable access resources among a wide range of individuals, organizations and institutions within the City of San José.

On a call for the question, the motion carried unanimously and the Staff recommendations dated November 25, 2002, authorizing the issuance of a preliminary assessment that the cable franchise issued to Gill Industries which AT&T purports to lawfully hold should not be renewed, with three amendments: (1) Staff directed to issue the preliminary assessment of denial to be effective on December 18, 2002; (2) Allow the new cable operator a period of time to conclude informal negotiations, (3) The City Manager is authorized to negotiate and execute an extension to January 23, 2003 of the four month period to act, and if a valid extension agreement is established the effective date of the preliminary assessment of denial would be further extended to the date provided in the extension agreement, and the City Manager is further authorized to establish and commence the administrative hearing process required by the Cable Act, and Resolution No. 71331, entitled: “A Resolution of the Council of the City of San José Making a Preliminary Assessment that the Request for Renewal of Cable Franchise Submitted by AT&T Broadband HC of California, LLC Should be Denied and Authorizing the City Manager to Establish and Commence an Administrative Hearing”, was adopted. Vote: 10-0-1-0. Absent: Shirakawa, Jr.

3.5 Adoption of a resolution:

(a) Authorizing the City Manager to negotiate and execute an agreement with Patton Boggs LLP, for legislative representation services in Washington, D.C. for the period January 1, 2003 through December 31,2003, in an amount not to exceed $108,000;

(b) Authorizing the City Manager to execute up to two (2) one-year options to extend the agreement without further Council action other than the appropriation of funds.

CEQA: Not a Project. (City Manager’s Office)

Documents Filed: Memorandum from Assistant City Manager Mark Linder, dated December 4, 2002, recommending Council adopt said resolution.

Discussion/Action: Vice Mayor Shirakawa, Jr. arrived in the Council Chambers at this point in the meeting. Upon motion by Council Member Williams, seconded by Council Member Chavez, and unanimously carried, Resolution No. 71332, entitled: “A Resolution of the Council of the City of San José Authorizing the City Manager to Negotiate and Execute an Agreement with Patton Boggs LLP for Legislative Representation in Washington, D.C. in an Amount Not To Exceed $108,000; and Authorizing the City Manager to Execute Up to Two, One-Year Options”, was adopted. Vote: 11-0-0-0.

3.6 Adoption of a resolution allowing the City Manager to enter into professional services agreements for the San José Civic Center Project which exceed $100,000, and to amend existing professional services agreements where the amended amount of compensation will exceed $100,000, with the total delegation authority not to exceed $11,100,000. CEQA: Civic Plaza Redevelopment Plan EIR, Resolution No. 68905, PP98-03-072. Council District 3. SNI: University. (Public Works)

Documents Filed: None.

Discussion/Action: This item was deferred to December 17, 2002.

3.7 Adoption of appropriation ordinance and funding sources resolution amendments in the Services for Redevelopment Capital projects Fund (City-side Redevelopment Fund) with a net impact to the fund of $99,992. CEQA: Exempt, PP02-11-332. Council Districts 2 and 6. (City Manager’s Office)

(Deferred from 12/3/02 – Item 3.5)

Documents Filed: (1) Memorandum from Director of Budget Office Larry D. Lisenbee, dated December 5, 2002, recommending City Council adopt said appropriation ordinance and funding sources resolution amendments with net impact of $99,992. (2) Memorandum from Director of Budget Office Larry D. Lisenbee, dated November 13, 2002, recommending City Council adopt said appropriation ordinance and funding sources resolution amendments with net impact of $4,099,992.

Discussion/Action: Upon motion by Council Member Yeager, seconded by Council Member Chavez, and unanimously carried, Ordinance No. 26791, entitled, “An Ordinance of the City of San José Amending Ordinance No. 26674 to Appropriate Monies in the Services for Redevelopment Capital Projects Fund for the Lincoln Avenue Studies; and Providing that this Ordinance Shall Become Effective Immediately Upon Adoption”; and Resolution No. 71333, entitled, “A Resolution of the Council of the City of San José Amending Resolution No. 71072 Setting Forth the Estimated Sources of Funds for the Fiscal Year 2002-2003 to Adjust Revenues in the Services for Redevelopment Capital Projects Fund”, were adopted. Vote: 11-0-0-0.

3.8 Adoption of a resolution authorizing the City Manager to negotiate and execute an amendment to the agreement with the Vietnamese Cultural Heritage Foundation for the construction of the Vietnamese Cultural Heritage Gardens to waive certain bond requirements and to authorize the City Manager to accept security, acceptable to the Manager, in lieu of the reduced bond amounts. (Reed)

(Deferred from 12/3/02 – Item 3.8)

Documents Filed: None.

Discussion/Action: This item was deferred to January 28, 2003.

ECONOMIC & NEIGHBORHOOD DEVELOPMENT

4.2 PUBLIC HEARING on the Historical Property Contract for the Hotel Metropole, City Landmark No. HL88-46 and the Sunol Building, City Landmark No. HL02-129 located at the northwest corner of South Market and Post Streets (35 South Market St.) on 0.33 gross acre. (Florin II LTD, William B. Mitchell G.P., Owner). CEQA: Exempt. Director of Planning, Building and Code Enforcement and Historic Landmarks Commission recommend approval (5-0-1). (Planning, Building, and Code Enforcement)

MA 02-003 - District 3

(Continued from 10/8/02 – Item 4.3 et al, and 11/26/02 – Item 4.2)

Documents Filed: None.

Discussion/Action: This item was continued to December 17, 2002.

4.3 PUBLIC HEARING on the Historical Property Contract for the Clara Louise Lawrence Residence, City Landmark No. HL02-142, located at the east side of Randol Avenue, approximately 180 feet southerly of The Alameda (1146 Randol Avenue). (Jim Blair, Eaglecreek Associates II, Owner). CEQA: Exempt. (Planning, Building and Code Enforcement)

MA 02-001 - District 6

Documents Filed: None.

Discussion/Action: This item was continued to December 17, 2002.

4.4 Adoption of a resolution approving a loan of up to $2,775,000 to FF Development, L.P., or an affiliated entity, for the permanent financing of the 152-unit Bel Aire Apartments to be made affordable to low- and very low-income households, on a 3.94-acre site located at 3201 Loma Verde Drive. CEQA: Exempt, PP02-11-331. Council District 1. SNI: Winchester. (Housing)

Documents Filed: Memorandum from Director of Housing Leslye Corsiglia, dated November 20, 2002, recommending Council adopt a resolution approving said loan to FF Development, L.P., or an affiliated entity, for the Bel Aire Apartments project.

Discussion/Action: Director of Housing Leslye Corsiglia amended the Staff report to indicate that City Council is not required to make “findings” for this project. Upon motion by Council Member LeZotte, seconded by Council Member Dando and unanimously carried, Resolution No. 71334, entitled: “A Resolution of the Council of the City of San José (i) Approving a Loan of up to $2,775,000 for FF Development L.P. or its Affiliated Entity for the Permanent Financing of a 152-Unit Rental Housing Project Affordable to Very Low and Low Income Persons and Families, and (ii) Authorizing the Director of Housing to Negotiate and Execute all Necessary Documents on Behalf of the City”, was adopted. Vote: 11-0-0-0.

4.5 Approval of an urgency ordinance amending Chapter 17.22 and Chapter 17.23 of the San José Municipal Code, by:

(a) Changing the references to the “Rental Dispute Program” in these chapters to reflect the program’s new name, the “Rental Rights and Referrals Program”;

(b) Changing the term “30-day notice” to reflect the increased time periods mandated by recent changes to State Law and the Rental Dispute Ordinance;

(c) Amending Section 17.23.695 to permit the Director of Housing to make a finding determining the current rental housing market conditions;

(d) Amending section 17.22.100 to correctly state that the Housing Department is charged with administration of the Rental Rights and Referrals Program; and

(e) Making grammatical changes to section 17.23.600 in order to appropriately state the type of notices that need to be filed with the City.

CEQA: Not a project (Housing)

(Rules Committee referral 12/4/02)

Documents Filed: Memorandum from Director of Housing Leslye Corsiglia, dated November 18, 2002, recommending Council approve said urgency ordinance.

Discussion/Action: Upon motion by Council Member Williams, seconded by Council Member Chavez, and unanimously carried, Ordinance No. 26792, entitled: “An Urgency Ordinance of the City of San José Amending Chapters 17.22 and 17.23 of Title 17 of the

San José Municipal Code by Amending Section 17.22.100 to Correctly Define the Department which Administers the ‘Rental Rights and Referrals Program’; Amending Sections 17.22.450 and 17.23.190 to Change the Term “30 Day Notice” to Encompass Certain Cause Notices of Longer Periods; Adding Section 17.23.041 to Define the ‘Rental Rights and Referrals Program’; Amending the Term ‘Rental Dispute Program’ to Read ‘Rental Rights and Referrals Program’ in Sections 17.22.100, 17.22.155, 17.22.495, 17.22.570, 17.22.611, 17.22.615, 17.22.616, 17.22.617, 17.22.660, 17.22.700, 17.22.760, 17.22.770, 17.22.780, 17.22.785, 17.22.790, 17.22.800, 17.22.810, 17.22.850, 17.22.950, 17.22.1010, 17.22.1020, 17.22.1050, 17.22.1055, 17.22.1070, 17.23.205, 17.23.600, 17.23.615, 17.23.670, 17.23.730, 17.23.750 and 17.23.760; Additionally Amending Section 17.23.600 to Clarify Which Notices to Vacate Must Be Filed with the City; Amending Section 17.23.695 to Permit the Director of Housing to Make the First Finding Relating to the Existence of a Severe Rental Housing Shortage No Later Than December 20, 2002; and Setting Forth the Facts Constituting the Reasons this Ordinance is Passed as an Urgency Ordinance”, was adopted. Vote: 11-0-0-0.

RECREATION & CULTURAL SERVICES

5.2 Approval of the Gleason Avenue Mini-Park Master Plan. CEQA: Exempt, PP02-06-143. Council District 1. (Parks, Recreation and Neighborhood Services)

Documents Filed: Memorandum from Director of Parks, Recreation and Neighborhood Services Sara L. Hensley, dated November 18, 2002, recommending approval of the Gleason Avenue Mini-Park Master Plan.

Discussion/Action: Council Member LeZotte commented that she worked on this project, and County Supervisor Beall stated the County would provide matching funds, and he would work out the details on the land. Director of Parks, Recreation and Neighborhood Services Sara L. Hensley stated the County is matching some funds, but she will have to research the exact amount, and would inform Council Member LeZotte. Upon motion by Council Member LeZotte, seconded by Vice Mayor Shirakawa, Jr. and unanimously carried, the Gleason Avenue Mini-Park Master Plan was approved. Vote: 11-0-0-0.

5.3 Approval of the Hillstone Park Master Plan. CEQA: Negative - Declaration, PP02-10-291. Council District 8. (Parks, Recreation and Neighborhood Services)

Documents Filed: Memorandum from Director of Parks, Recreation and Neighborhood Services Sara L. Hensley, dated November 18, 2002, recommending approval of the Hillstone Park Master Plan.

Discussion/Action: Upon motion by Council Member Cortese, seconded by Council Member Dando and unanimously carried, the Hillstone Park Master Plan was approved. Vote: 11-0-0-0.

5.4 Adoption of a resolution authorizing the City Manager to negotiate and execute a real property exchange agreement between the City of San José and Shapell Industries to affect a resolution of various issues related to implementation of the Evergreen Specific Plan. CEQA: Resolution No. 63179. (City Attorney’s Office)

(Rules Committee referral 12/4/02)

Documents Filed: (1) Memorandum from City Attorney Richard Doyle, dated December 9, 2002, recommending Council authorize the City Manager to negotiate and execute a real property exchange agreement between the City of San José and Shapell Industries related to implementation of the Evergreen Specific Plan. (2) Memorandum from Council Member Cortese, dated December 10, 2002, recommending approval of the Staff recommendation with the following language amendment added after: “the Evergreen Specific Plan, requiring that all grant deeds contemplated under that agreement be recorded on or before December 17, 2002.”

Discussion/Action: Council Member Cortese stated that his memorandum dated December 10, 2002, recommends language amendments to the recommendation from the City Attorney. Upon motion by Council Member Cortese, seconded by Council Member Dando and unanimously carried, and Council approved memorandum of December 10, 2002 by Council Member Cortese recommending approval of the Staff recommendation with the following language amendment added after: “the Evergreen Specific Plan, requiring that all grant deeds contemplated under that agreement be recorded on or before December 17, 2002, and Resolution No. 71335, entitled: “A Resolution of the Council of the City of San José Authorizing the City Manager to Negotiate and Execute a Proposed Land Transfer and Exchange Agreement, as well as any Documents Necessary to Effect that Transfer and Exchange, with Shapell Industries, Inc. for Property Located in the Evergreen Specific Plan Area Known as Fowler Creek Park”, was adopted. Vote: 11-0-0-0.

TRANSPORTATION SERVICES

6.1 (a) Acceptance of various actions related to the Taxicab Advisory Team Report:

(1) Direct the City Manager and San José Redevelopment Agency Director to work with the TaxicabTeam to identify the funding needed to support the marketing and customer evaluation components of their recommendations.

(2) The TaxicabTeam recommends that a moratorium/cap, as more fully described in Attachment E, be approved and that the Chief of the Police Department be directed to temporarily suspend the issuance of new permits to additional companies not licensed by the City of San José as of November 1, 2002, in accordance with the provisions outlined in Attachment E. The TaxicabTeam will monitor the moratorium every four (4) months. In reviewing the issue of driver economics, the TaxicabTeam discussed an issue for a moratorium on the issuance of permits for new companies as well as additional drivers. In April the participating TaxicabTeam owners initiated a voluntary cap on drivers.

6.1 (a) Acceptance of various actions related to the Taxicab Advisory Team Report (Cont’d.)

(3) Amend the Taxicab Rate, Fares, and Tariffs Resolution to increase the current per mile rate of $2.25 per mile (.25 per 1/9 mile) to $2.50 (.25 per 1/10), amending the flag drop from $2.00 (including 1/9 mile) to $2.50 (including 1/10 mile), and increase the wait time calculation from $.20/36 secs. ($20 hour) to $.25/36 secs. ($25 hour). The TaxicabTeam will review meter rates every two years, barring any unforeseen economic emergency

CEQA: Not a Project. (Taxicab Advisory Team)

(b) Acceptance of the staff report in response to the San José Taxicab Advisory Team’s recommendations, with specific approval of the following recommendations:

(1) Adoption of a resolution amending the Taxicab Rate, Fares, and Tariffs Resolution to increase the current per mile rate of $2.25 per mile (0.25 per 1/9 mile) to $2.50 (0.25 per 1/10 mile) and increase the wait time calculation from $0.20/36 seconds ($20 hour) to $0.25/36 seconds ($25 hour) effective March 2003; and adoption of a resolution amending the Schedule of Fees and Charges to suspend the payment of taxicab stand rental fees for new taxicab stands for one year for taxicab stands installed during 2003.

(2) Direct the Transportation City Service Area staff to conduct a consultant study to determine the most appropriate taxicab system for the City and the Airport based upon an evaluation of customer service requirements, industry and driver economics, insurance requirements and procedures, and taxicab service supply and demand.

(3) Direct staff from the Transportation City Service Area to internally review the current administrative roles, responsibilities, and methods used by City departments for the taxicab industry to determine the most effective and efficient regulation of the industry and the implementation of any new standards that are appropriately within the City’s purview.

(4) Authorize staff from the Transportation City Service Area to assist the taxicab industry in transitioning the Taxicab Advisory Team into an independent, privately managed association of taxicab industry standards to improve customer service, and to expand the service base of local industry.

CEQA: Not a Project. (Transportation/Airport/Police)

Documents Filed: (1) Memorandum from Mayor Gonzales and Council Members Cortese and Chavez, dated December 9, 2002, recommending Council support the Staff memorandum of December 3, 2002, with the following revisions and/or clarifications: (a) The proposed 10 year/400,000 age/mileage restrictions must be a ceiling that is not to be raised; (b) Any additional resources needed as a result of the transfer of appropriate oversight responsibilities to the Department of Transportation will need to compete with other funding priorities as part of the City’s normal budget process; (c) Do not amend the City’s taxicab ordinance to include the specific response times until there is clarity about how the standard would be monitored and enforced in the short and long term; (d) Staff should develop a set of guidelines on the parameters of the Team’s responsibilities and authority for City Council review as part of the consultant study; (e) Any revisions to the citywide service model must be solely, directly and clearly for the purpose of improving the service model for the Airport; (f) Increase the flag drop rate to $2.50 in non Airport areas, but do not increase the flag drop rate in the Airport which would remain at $3.50; (g) Any future fare increases must use a predetermined analytical methodology approved by the Council; (h) Include the study of a moratorium as part of the consultant study of the service models; (i) Do not allow drivers to obtain their own insurance unless it can be done at no risk to the City and without adding an administrative burden on the City; (j) Require the Taxicab Team to prioritize the recommendations approved by Council and focus on implementing the top 3-5 priorities in the upcoming year; (k) Strongly encourage the taxicab industry to establish an association within the next twelve months to market the industry, improve customer service and increase driver income. (2) Memorandum from Director of Transportation James Helmer, Chief of Police William Lansdowne, and Director of Aviation Ralph Tonseth, dated December 3, 2003, recommending Council accept the Administration’s response to the San José Taxicab Advisory Team recommendations, with specific approval of: (a) Amending the Taxicab Rate, Fares and Tariffs Resolution to increase the current per mile rate of $2.25 per mile, and increase the wait time calculation effective 2003; suspend for one year the payment of taxicab stand fees for new stands installed during 2003; (b) Direct the Transportation City Service Area to conduct a consultant study to determine the most appropriate taxicab system for the City and the Airport based upon an evaluation of customer service requirements, industry and driver economics, insurance requirements and procedures, and taxicab service supply and demand; (c) Direct staff from Transportation CSA to internally review the current administrative roles, responsibilities and methods used by City departments for the taxicabs industry to determine the most effective and efficient regulation of the industry and the implementation of any new standards that are appropriately within the City’s purview; d) Authorize staff from the Transportation City Service Area (CSA) to assist the taxicab industry in transitioning the Taxicab Advisory Team into an independent, privately managed association of taxicab industry representatives to market the industry, establish and refine industry standards to improve customer service, and to expand the service base of the local industry. (3) Memorandum and Report from Chairperson of the San José Taxicab Advisory Team, Dan Fenton, dated December 1, 2002, recommending City Council approve the report from the Taxicab Advisory Team, and direct the City Manager and Redevelopment Agency Director to work with the Advisory Team to identify funding to support marketing and customer evaluation components of their recommendations, that a moratorium/cap, as described in Attachment E, be approved and the issuance of new permits temporarily suspended, and the Taxicab Rate, Fares and Tariffs resolution be amended to increase the current per mile rate to $2.50, the flag drop to $2.50, and the wait time calculation increased to $.25/36 seconds, as further specified therein.

Discussion/Action: Director of Transportation Jim Helmer presented Dan Fenton, the Chairperson of the San José Taxicab Advisory Team (Advisory Team), who used overhead slides to present the Advisory Team’s recommendations for a strategic plan for the San José Taxicab Industry. Harry Berkhurst representing the taxicab drivers, declared that this plan was coordinated with all stakeholders in the industry, the taxicab drivers had input and all support this plan and process. President/General Manager of Yellow Checker Cab Company Larry Silva stated his company has been part of this process for two years, and supports the Advisory Team’s recommendations. Director Helmer stated Staff supports the fare increase for the mileage, and the wait time, and is recommending suspending new taxicab fees for one year on all new taxicab stands. He stated the Transportation CSA is committed to the Advisory Team, has formed a subcommittee to be the lead on all taxicab matters from this point forward, and Staff recommends hiring a consultant in January 2003 to compare the airport system and the citywide system. He further stated that Staff does support many of the recommendations by the drivers, i.e. formal training backed by City testing, standard uniforms, vehicle age and mileage requirements, and a customer bill of rights that is clearly visible to anyone riding in the taxicab. He stated Staff recommends the fare hikes for mileages and wait time, and that Staff immediately begin the Request For Proposal process for consultant study, continue to have the Transportation CSA expedite the high priority services for the Advisory Team and continue to expand the taxicab locations in the City, and continue coordination of taxicab locations for special events.

Mayor Gonzales stated this industry needs an association that can represent the industry’s interests, coordinate marketing, and handle complaints. Chair Fenton stated that the Advisory Team and the industry will need support from the City Staff for at least another year or two, and would like to continue to have the Department of Transportation be the communication point in terms of monitoring the industry. Director Helmer stated City staff does not support the additional flag drop for several reasons, that to add an additional 50-cents to the fare when the customer first entered the taxicab was not sending the appropriate message, and the focus should be on improving driver economics through other means. He stated approving the flag drop would result in the total cost of a 5-mile trip in San José being the highest both from airport and non-airport trips in the Greater Bay Area.

Council Member Dando asked how the standards for uniforms, driver’s dress codes, and training are being enforced. Director Helmer replied that Staff’s expectations are that the drivers and the owners representing their business industry will be self enforcing because each want to come together to form an association, work towards a collective process of achieving their goals and objectives, and the City will back up the process through testing, and Staff could pattern the permit testing around many of the training standards that drivers voluntarily do, and he recommended a combination of the industry self enforcing, backed up by the Police Department and the Department of Transportation. Council Member Dando stated she would like to believe that the industry would self enforce but this might require an official City ordinance or policy. Director Helmer stated that during this process, members of the Advisory Team believed that this issue should become part of a future ordinance. Council Member Dando stated some kind of organization would be a necessity with some of the issues raised, and over the next year, an organization could be formed to do the necessary enforcement.

Director Helmer stated as the Advisory Team goes through the process with the consultants over the next nine to ten months, Staff will be monitoring the progress of the drivers and the owners to form their association to become a self enforcing, self regulatory industry. Council Member Dando questioned the impact of drivers being self insured, and asked what are the different viewpoints. Chief of Police William Lansdowne replied that the San José Police Department recommends City Staff review their responsibility in the area of oversight to ensure that the liability and risk needs are covered. He stated it would be more productive and easier to monitor the twelve cab companies as individual companies, than to individually monitor 520 drivers who have access to those cars. Council Member Dando asked if the blanket driver insurance would be an item the Police Department would review, and Chief Lansdowne replied the Police Department could perform that function. Council Member Dando questioned if other cities have self-insured or blanket-insured driver insurance, and Chief Lansdowne replied some cities have absolutely no control over the taxicab companies, and he didn’t know any cities that would allow individual drivers to be insured, but most cities require taxicab companies to have an insurance policy to cover all the vehicles.

Council Member Yeager suggested that taxis might be an alternative for people using the VTA Paratransit Outreach Program, and asked in regard to separating rides to and from the airport, is there any data suggesting who is likely to call a taxicab in neighborhoods and where they might be going. Director Helmer replied that Staff does not have that data, but a leader on the Advisory Team that was part of the disabled community is checking into those issues. Director Helmer stated that part of his job as Chair is to present recommendations, that the direction of different points of view have come closer to what Staff believes is important, and the Advisory Team will need help in implementation. He stated studies have shown that after an increase there may be a slight dip in ridership but over the course of time the overall benefit to the taxicab drivers and the industry outweighs a short temporary dip.

Council Member LeZotte stated that in a troubled economy, an increase in the flag drop would not be appropriate, and it is not logical to hurt the demand by raising the flag drop. Director Helmer stated the Advisory Team studied the fare structures in surrounding communities and the City of San José’s fare structure is lower than most of the surrounding communities, and 50 cents will not make a difference to most people who use taxicabs. Council Member LeZotte agreed but stated the volume of taxicab usage throughout the City needs to be increased, which would help the drivers, particularly at the Airport. Mayor Gonzales opened the floor to public speakers. Bill Schweitzer representing Computer Cab, Gurinder representing Net Cab, Leo Bazile representing Alpha Cab, Dmitriy Vorik representing Rainbow Cab Company, Dave Logan, representing Yellow Cab, Ron Lind representing UFCW, Seyoum Asnat, Phaedra Ellis-Lamkins, representing South Bay Labor. Council Member Chavez moved approval of the memorandum from Mayor Gonzales, and Council Members Cortese and herself dated December 9, 2002, recommending approval of the Staff recommendations dated December 10, 2002, with the revisions specified therein. Council Member Cortese seconded the motion.

Mayor Gonzales stated the City’s objective is customer-focused with the objective of obtaining the best service for the customer and Council’s responsibility is to identify solutions that accomplish that purpose. He stated the City is prepared to aid the industry’s efforts through an appropriate level of regulation and oversight that support many of the solutions proposed by the industry, including those in his and Council Members Chavez and Cortese’s memorandum. He encouraged the industry to move forward very aggressively in the Advisory Team’s work plan on the formation of an association, and stated the taxicab industry is unique in the sense that it serves the airport, serves the people of San José, but is a private sector of business, and thanked the Advisory Team and Chair Dan Fenton for his leadership. Council Member Cortese expressed concern about what is the appropriate level of intervention by the City and stated while unable to make all the commitments the Advisory Team would like; the fare increase provides benefits both at the airport and outside.

Council Member LeZotte stated she would support the motion but does have concern about a fare increase before the infrastructure is in place for adding additional taxicabs, and, with the limitations in service for seniors and disabled by the Santa Clara Valley Transportation Agency, there might a disproportionate impact on those populations. Council Member Reed stated he would not support the motion as he supports the recommendations of the Advisory Team, who worked for nine months on their proposal, and stated the taxicab industry has to be regulated, either by the City or by setting up an independent commission.

Council Member Dando stated she appreciated hearing a variety of views, including the public discussions, Mayor Gonzales’ and Council Members Chavez and Cortese’s memorandum which she supports, but does have a few concerns. She stated she understood the importance of taxicab service to the airport, but it is also important to consider citywide service, and expressed concerns about the one year moratorium on rental fees for new taxicab stands, and the taxicab driver insurance. She stated she would not support anything that would create an undue burden on the Police Department or put the City at risk, but she would like more information on how other cities addressed those issues and the blanket insurance issue. She expressed concerns about not stepping up to the responsibility of regulation and enforcement but does support the memorandum by the Mayor and Council Members with the additional clarifications.

On a call for the question, the memorandum from Mayor Gonzales and Council Members Cortese and Chavez, dated December 9, 2002, recommending approval of the Staff report of December 3, 2002, as amended by the revisions and modifications specified, was approved, Resolution No. 71336, entitled: “A Resolution of the Council of the City of San José Fixing and Determining Rates, Fares and Tariffs for the Operation of Taxicabs pursuant to San José Municipal Code Chapter 6.64 Subject to Certain Conditions, and Repealing Resolution No. 70212”; and Resolution No. 71337, entitled: “A Resolution of the Council of the City of San José Amending Resolution No. 71036 to Suspend the Taxicab Stand Rental Fee for New Taxicab Stands Installed in 2003”, were adopted. Vote: 10-1-0-0. Noes: Reed.

ENVIRONMENTAL & UTILITY SERVICES

7.1 Authorization for a designated Council Member or Council Members to attend a collaborative process meeting of various cities within Santa Clara County and Santa Clara Valley Water District Staff in Cupertino, CA on December 11, 2002 to present the City Council’s position on a proposed “Water Resources Protection Ordinance” of the Santa Clara Valley Water District. CEQA: Not a Project.

(Rules Committee referral 12/4/02)

Documents Filed: None.

Discussion/Action: This item was dropped from the Agenda.

JOINT COUNCIL/REDEVELOPMENT AGENCY

The Redevelopment Agency Board convened at 3:45 p.m. to consider Item 10.1 and 10.2 in a Joint Session.

10.1 Acceptance of the Neighborhood Development Center Business Plan. CEQA: Not a Project. (City Manager’s Office/Parks, Recreation and Neighborhood Services/Redevelopment Agency)

Documents Filed: Memorandum from City Manager Del D. Borgsdorf, and Redevelopment Agency Executive Director Susan Shick, dated December 3, 2002, recommending Council accept the Neighborhood Development Center Business Plan.

Discussion/Action: Director of Transportation Department James Helmer used overhead PowerPoint slides to present the five-year strategic business plan for the Neighborhood Development Center (NDC). Council Member Chavez stated the challenge is related to the City’s broader public policy connecting SNI solely to the Redevelopment Agency budget, that the City should not focus on SNI areas separate of those neighborhoods without SNI designations and be mindful that some of those neighborhood associations feel left out. She stated the Community Action and Pride Grant (CAP) process is a good mechanism for engaging neighborhoods to improve their environment; however the challenge is for the City to provide feedback to applicants on the feasibility of their project but the challenge from a policy perspective of how to link the program with the SNI Project could best be addressed through the NDCs. Council Member Campos asked how adequate services could be provided with only five staff members and Director Helmer replied that the NDC would partner with other City organizations and non-profits. In response to her concerns about the limited access her district has to NDCs and how community outreach will be done, Acting Deputy Director Mosley stated the NDC has a diverse staff that utilizes resources available through the media and plans to visit neighborhood associations and work with Community Coordinators assigned in SNI areas. He stated the goal is to take services into the neighborhoods and the NDCs will continue working with Council Members to develop those services for neighborhoods. Upon motion by Council Member Diquisto, seconded by Council Member Chavez, and unanimously carried, the Neighborhood Development Center Business Plan was approved. Vote: 10-0-1-0. Absent: Cortese.

10.2 Approval of the current Council and Redevelopment Board agenda procedures, including timelines for distributing reports, and direction to staff to implement the following:

(a) All staff reports produced by the Administration, City Attorney, or City Clerk shall be distributed by a single source, the City Clerk’s Office by January 2003 (unless the information is confidential/privileged information). (This process does not include the Redevelopment Agency.)

(b) Increase the amount of staff reports posted on the website and begin posting Council Committee agendas and reports on the website by March 2003.

CEQA: Not a Project. (City Manager's Office/City Attorney’s Office/City Clerk’s Office/Redevelopment Agency)

Documents Filed: (1) Memorandum from Mayor Gonzales, Council Members Chavez, Cortese, and Dando, dated December 10, 2002, recommending Council approve the Staff report of December 3, 2002, with the following recommendation, that a standing item be added to the Rules Committee agenda entitled Staff Reports Outstanding that would allow the Rules Committee to review reports that have not been distributed for the following week’s Council Meeting. (2) Memorandum from Council Member Reed, dated December 2, 2002, recommending Council amend said rules for the conduct of City Council and Redevelopment Agency Board Meetings for earlier publication of staff reports. (3) Memorandum from City Manager Del D. Borgsdorf, Redevelopment Agency Executive Director Susan Shick, City Clerk Patricia L. O’Hearn and City Attorney Richard Doyle, dated December 3, 2002, recommending approval of the proposed Council and Redevelopment Board agenda procedures, including timelines for distributing reports and direction to Staff. (4) Letter from Burbank Community Association Chairperson Daniel Chavez, dated December 10, 2002, supporting Council Member Reed’s recommendations. (5) Letter from President of League of Women Voters of San José/Santa Clara, dated December 10, 2002, endorsing Council Member Reed’s recommendations.

Discussion/Action: Mayor Gonzales opened the floor for the public speakers. Virginia Holtz representing the League of Women Voters for San José/Santa Clara spoke on the agenda and reporting procedures. Council Member Dando moved approval of the Staff recommendation, dated December 3, 2002, with the memorandum dated December 10, 2002, signed by Mayor Gonzales and Council Members Chavez, Cortese and Dando. Council Member Chavez seconded the motion. Council Member Dando stated Council realizes the important issues dealt with on a weekly basis and those on the dais take their responsibilities very seriously. She stated everyone at the City, including the public, would like to receive reports in a timely manner, but to be realistic, the size of the City of San José and the amount of paperwork that comes through on a daily/weekly basis is incredible. She stated the memorandum signed by the Mayor and Council Members gave some background as to what the smaller cities do in Santa Clara County and noted it would be interesting to know what happens in larger cities in California. She clarified that with Tuesday’s list of Staff’s reports, all Council Members would be able to see what reports were outstanding, and what reports have not yet been released, and any Council Member or anyone from the public that had a concern with a specific report not being issued yet, could come to Rules Committee or make a phone call on that issue and ask an extension of time to review that report. She stated she would be supporting the Staff Report and the ideas proposed in the Mayor’s memorandum.

Council Member Reed commented that the City is not doing a good enough job of informing the public as to what topics Council is discussing in a manner that is timely enough so they can participate in the discussion, and while two recommendations from the Staff and Mayor and Council Members’ memorandums are effective, they do not address the problem completely. He stated he agrees with one item in the Staff report, i.e. that week after week Staff performs their duties well and manages to send out a very large majority of items on time, but there are times when items are complex in nature, require last minute negotiation or have last minute developments which result in Staff releasing reports late; and that these policy items are often high profile, complex and most anticipated by the public and Council Members. He commented that those are exactly the kind of reports the City should make sure the public has access to in time for the Council meetings. Council Member Reed moved to amend the motion, adding a requirement that Staff reports come out on Thursday, and if matters have not been to a Commission or Council Committee that the reports be distributed eleven (11) days in advance of a meeting (11-Day Rule), with exception of bid items. Council Member Yeager seconded the motion. Council Member Cortese stated he does not like hard and fast rules and was against the amendment. Council Member Chavez stated she would not support the amendment.

Council Member LeZotte expressed concern with reports not distributed because an item has been deferred but the report was ready, and also felt reports on controversial issues should be sent out immediately. She requested clarification of the City Clerk’s role with regard to her colleagues in the hierarchy of the distribution. City Manager Del Borgsdorf reported that the accountability would not be changing, that the City Clerk’s office would be assisting Staff in coordinating the distribution to the Council. City Attorney Richard Doyle advised that time periods are going to be stricter, and memorandums should arrive at the City Clerk’s office in a timely manner; however, confidential memorandums will come directly from the City Attorney’s Office. Council Member Dando asked how to get controversial items to Council with enough time to get information to the community, and that the City Council, not only the Rules Committee, should receive a list on Tuesday afternoons. She stated the list will contain what reports are not yet completed, therefore it would be possible to attend the Rules Committee Meetings on Wednesdays to give comments on controversial issues, and that will help to make a decision whether or not to defer an item, and on Wednesday it could be determined whether an item will be deferred or not, rather than waiting until Thursday at 5:00 p.m. Council Member Dando stated she did not support the amendment.

Council Member Reed reiterated that the memorandum from Mayor and Council members does not say the list will be distributed on Tuesday, and the City Attorney’s interpretation of the Brown Act specifies that only five Council Member can attend the Rules Committee; the sixth Council Member would make the meeting a Council majority. City Attorney Doyle stated a written request for a deferral might be submitted to the Rules Committee. Council Member Dando replied that the Mayor and Council Members’ memorandum said: “Staff will be putting this list together of those reports that have not been completed by Tuesday at 5:00 p.m.,” and the list could be received on Tuesday; it would be in Rules Committee on Wednesday, and the Rules Committee would be discussing those reports not submitted by 5:00 p.m. the previous day. On a call for the question, the amended motion did not carry. Vote: 3-8-0-0. Noes: Campos, Chavez, Cortese, Dando, Diquisto, Shirakawa, Jr., Williams; Gonzales.

Council Member Cortese commented that the Rules Committee meetings are conducted in a rapid fire fashion, moving through all of the agendas for the City Council and Redevelopment Agency for two weeks at a time, plus all the committee work plans, and it has to be done in a relatively short time. He stated in addition to the Tuesday night deadline, perhaps a call could be made to the City Clerk’s office and if a certain report is available, it could be delivered to the Rules Committee in time for the Wednesday meeting.

Mayor Gonzales asked for Council comments on the main motion, and commented that this has been an issue that has drawn quite a lot of attention, and that it is important to note that the Brown Act relates only to agenda items, and agenda items have to be on public notice within 72 hours of a Council meeting. He stated not only was this City Council committed to timely, useful and open public information, but complete, accurate and responsive Staff Reports, and the City’s goal should be to continue to provide good opportunities for the public to obtain appropriate public information while balancing the need for timely decision-making by the Council. He stated that the City of San José has worked very hard the last several years to get as much information as possible on the Internet, including the production of television broadcasting of the City Council meetings.

On a call for the question on Council Member Dando’s original motion, seconded by Council Member Chavez, the motion carried unanimously, and Council approved the memorandum of December 10, 2002 by Mayor Gonzales and Council Members Chavez, Cortese and Dando, the Staff recommendation dated December 3, 2002, with the following addition: “A standing item be added to the Rules Committee agenda entitled Staff Reports Outstanding that would allow the Rules Committee to review reports that have not been distributed for the following week’s Council meeting; to include a weekly list produced by the Administration of the staff reports that have not been distributed as of Tuesday afternoon at 5:00 p.m. for the following week’s Council Meeting for review by the Rules Committee.” Vote: 11-0-0-0.

The Redevelopment Agency Board portion of the meeting was adjourned at 5:10 p.m.

Closed Session Report

Disclosure of Closed Session Action of December 10, 2002 submitted by City Attorney J. Richard Doyle:

A. Authority to Enter Litigation Case as Amicus Curiae:

1. Case Name: Schifando V. City of Los Angeles

Adverse Party or parties: Schifando

Substance of Litigation: The City agreed to join an Amicus Curiae brief supporting the City of Los Angeles in a Supreme Court review of an appellate finding that an employee must exhaust an employer’s internal grievance procedure before filing a lawsuit. The Plaintiff in Schifando has filed a DFEH complaint, but had not challenged an alleged constructive termination through the City’s internal procedures. The court held that Plaintiff’s action was barred for failing to exhaust the City’s administration remedies.

Council Vote: Ayes: Campos, Chavez, Cortesé, Dando, Diquisto, LeZotte, Reed, Shirakawa, Jr.,Williams, Yeager; Gonzales.

Noes: None.

Absent: None.

Disqualified: None.

NOTICE OF CITY ENGINEER’S PENDING DECISION ON FINAL MAPS

In accordance with Sec. 19.16.140d of the San Jose Municipal Code, this is notice of the City Engineer's pending decision on the following Final Maps:

Tract	Location	Council District	Developer	Lots/ Units	Type	Proposed Decision
9402	E/s of Morrill Ave., 840 feet s/o Cropley Ave.	4	Yoshito Ouchita	5 lots	SFDR	Approve
9435	N/s of Hillsdale Ave., opposite Vista Park Dr.	7	KB Home South Bay Inc.	11 lots	SFAR	Approve