MINUTES OF THE CITY COUNCIL

 

 

San José, california                                                  tuesday, February 4, 2003

 

The Council of the City of San José convened in Regular Session at 9:00 a.m. in Council Chambers at City Hall

 

            Present: Council Members  -  Campos, Chavez, Chirco, Cortese, Dando,

                                                            Gregory, LeZotte, Reed, Williams; Gonzales

 

            Absent: Council Members  -     Yeager (Excused)

 

            Upon motion unanimously adopted, the City Council recessed to Closed Session at 9:05 a.m. in Room 600 to confer with Legal Counsel pursuant to Government Code Section 54956.9; under subsection (a) to discuss existing litigation cases of (1) In Re: Rogers, (2) In Re: Winters; and to confer with Legal Counsel regarding anticipated litigation of one matter where there is significant exposure to litigation pursuant to Subsection (c) of Section 54956.9 of the Government Code.

 

            By unanimous consent, Council reconvened from Closed Session and recessed at 11:00 a.m. and reconvened at 1:35 p.m. in Council Chambers, City Hall.

 

            Present: Council Members  -  Campos, Chavez, Chirco, Cortese, Dando,

                                                            Gregory, LeZotte, Reed, Williams; Gonzales,

 

            Absent: Council Members  -     Yeager (Excused)

 

 

Invocation

 

Sally Tan from the Southside Senior Center, Chinese Singing Group sang a Chinese New Year song and God Bless America accompanied by Grace Lin on keyboard. (District 2)

 

Pledge of Allegiance

 

Mayor Gonzales led the Pledge of Allegiance followed by a moment of silence observed in memory of seven astronauts of the Space Shuttle Columbia.

 

 

Orders of the Day

 

Upon motion by Vice Mayor Dando and seconded by Council Member Chavez, and unanimously carried, the Orders of the Day and the Amended Agenda were approved. Vote: 10-0-1-0. Absent: Yeager.

 

            Council Member Chirco introduced the 8th grade students from Ida Price School who

            were visiting City Hall and spent the day touring the Public Works Department.

 

CEREMONIAL ITEMS

 

1.1       Presentation of plaques to Robert Avery for 1 year 10 months service on the Project Diversity Screening Committee; to Don Gagliardi for 1 year 10 months service on the Project Diversity Screening Committee; to Noel Montoya for 1 year 10 months service on the Project Diversity Screening Committee; to Judy Nissila for 1 year 10 months service on the Project Diversity Screening Committee; and to Everardo Ramirez for 1 year 1 service on the Project Diversity Screening Committee.  (Mayor)

 

            Documents Filed: None.

 

            Discussion/Action: Mayor Gonzales presented plaques to Robert Avery, Don Gagliardi, and Judy Nissila for their years of service on the Project Diversity Screening Committee. Plaques were sent to Noel Montoya and Everardo Ramirez, who were absent.

 

CONSENT CALENDAR

 

            Upon motion by Vice Mayor Dando, seconded by Council Member Chavez, and unanimously carried, the Consent Calendar was approved and the below listed items taken as indicated. Vote: 10-0-1-0. Absent: Yeager.

 

 

2.2       Final adoption of ordinances.

 

            (a)        ORD. NO. 26813 – Amends Section 11.48.100 of Chapter 11.48 of Title 11 of the San José Municipal Code to add the 300 block of Saint John Street to the Arena Residential Permit Parking Area.

           

                        Documents Filed: Proof of Publication of the title of Ordinance No. 26813, executed on January 28, 2003, submitted by the City Clerk.

 

                        Discussion/Action: Ordinance No. 26813 was adopted. Vote: 10-0-1-0. Absent: Yeager.

 

            (b)        ORD. NO. 26814 – Establishes an Underground Utility District bounded by Interstate 880, Route 87, and Coleman Avenue.

 

                        Documents Filed: Proof of Publication of the title of Ordinance No. 26814, executed on January 28, 2003, submitted by the City Clerk.

 

                        Discussion/Action: Ordinance No. 26814 was adopted. Vote: 10-0-1-0. Absent: Yeager.

 

            (c)        ORD. NO. 26815 –Rezones certain real property situated at the southwestern corner of Interstate 280 and Northrup Street to A(PD) Planned Development Zoning District.  PDC 02-058

 

                        Documents Filed: Proof of Publication of the title of Ordinance No. 26815, executed on January 28, 2003, submitted by the City Clerk.

 

                        Discussion/Action: Ordinance No. 26815 was adopted. Vote: 10-0-1-0. Absent: Yeager.

 

            (d)        ORD. NO. 26816 - Rezones certain real property situated at the south side of West Virginia Street, approximately 150 feet westerly of South First Street (30 West Virginia Street) from LI – Light Industrial Zoning District to RM – Multi-Family Residential Zoning District.  C 02-079

 

                        Documents Filed: Proof of Publication of the title of Ordinance No. 26816, executed on January 28, 2003, submitted by the City Clerk.

 

                        Discussion/Action: Ordinance No. 26816 was adopted. Vote: 10-0-1-0. Absent: Yeager.

 

            (e)        ORD. NO. 26817 - Rezones certain real property situated on the block bounded by North First, Taylor, Miller, and Asbury Streets.  PDC 02-089

 

                        Documents Filed: Proof of Publication of the title of Ordinance No. 26817, executed on January 28, 2003, submitted by the City Clerk.

 

                        Discussion/Action: Ordinance No. 26817 was adopted. Vote: 10-0-1-0. Absent: Yeager.

 

            (f)        ORD. NO. 26818 - Rezones certain real property situated at the west side of Bascom Avenue, approximately 150 feet southerly of Forest Avenue to CP Pedestrian Commercial Zoning District.  C 02-076

 

                        Documents Filed: Proof of Publication of the title of Ordinance No. 26818, executed on January 28, 2003, submitted by the City Clerk.

 

                        Discussion/Action: Ordinance No. 26818 was adopted. Vote: 10-0-1-0. Absent: Yeager.

 

            (g)        ORD. NO. 26819 - Rezones certain real property situated at the east side of Dow Drive, approximately 250 feet northerly of Farm Drive (3080 Dow Drive) to A(PD) Planned Development Zoning District.  PDC 02-100

 

                        Documents Filed: Proof of Publication of the title of Ordinance No. 26819, executed on January 28, 2003, submitted by the City Clerk.

 

                        Discussion/Action: Ordinance No. 26819 was adopted. Vote: 10-0-1-0. Absent: Yeager.

 

2.3       Approval of City Auditor Gerald Silva’s travel calendar through June 30, 2003.  Funding:  Non-Personal budget.  (City Auditor)

 

            Documents Filed: None.

 

            Discussion/Action:  This item was deferred to February 11, 2003.

 

2.4       Approval of award of open purchase orders for supplies, materials, equipment and services for FY 2002-2003 #22 and authorization for the Director of General Services to execute the purchase orders.  CEQA:  Not a Project.  (General Services)

 

            Documents Filed: Memorandum from General Services Director, Jose Obregon, dated January 13, 2003, recommending approval of said open purchase orders FY 2002-2003 List #22, and authorization for the Director of General Services to execute the purchase orders.

 

            Discussion/Action: City Manager Del Borgsdorf amended the Staff report, dated January 13, 2003, to delete the open purchase orders for catering services. The award of open purchase order List No. # 22 as amended was approved and the Director of General Services authorized to execute the purchase orders. Vote: 10-0-1-0. Absent: Yeager.

 

2.5       Adoption of a resolution initiating proceedings and setting March 4, 2003 at 1:30 p.m. as the date for Council consideration of the reorganization of territory designated as Franklin No. 50 which involves the annexation to the City of San José of 16.25 acres of land, located on the south side of Tully Road approximately 500 feet easterly of 10th Street and generally bounded by the City of San José Annexations Monterey park No. 5, Franklin 31, Franklin 4 and Franklin 17 and the detachment of the same from the appropriate special districts including: Central Fire Protection and the County Library Service Area. CEQA: Resolution No. 71359, PDC 02-040. Council District 7. (Planning, Building and Code Enforcement)

 

            Documents Filed: Memorandum from Planning, Building and Code Enforcement Director Stephen M. Haase, dated January 10, 2003, recommending adoption of said resolution.

 

            Discussion/Action: Resolution No. 71399, entitled: “Resolution of the Council of the City of San José Initiating Reorganization Proceedings for the Annexation and Detachment of Certain Uninhabited Territory Designated as Franklin No. 50 and Described Herein, and Setting the Date and Place for Consideration of Such Reorganization”, was adopted. Vote: 10-0-1-0. Absent: Yeager.

 

2.6       Approval to reject all bids for the Mabury Service Yard Portable Building due to insufficient funding. CEQA: Exempt, PP01-11-200. Council District 3. (Public Works)

 

            Documents Filed: Memorandum from Public Works Director Katy Allen, dated January 13, 2003, recommending approval to reject all bids for the Malbury Yard Portable Building.

 

            Discussion/Action: Approval to reject all bids for Mabury Service Yard Portable Building due to insufficient funding was approved. Vote 10-0-1-0. Absent Yeager.

 

2.7       Acceptance of the Fourth Quarter 2002 San José Arena Authority Ticket Distribution program Report.  CEQA:  Not a Project.  (San José Arena Authority)

 

            Documents Filed: Memorandum from San José Arena Executive Director, Chris Morrisey, dated January 13, 2003, recommending approval of Fourth Quarter 2002 San José Arena Ticket Distribution Program report.

 

            Discussion/Action: The Fourth Quarter 2002 San José Arena Authority Ticket Distribution program report was approved. 10-0-1-0. Absent: Yeager

 

2.8       Approval of an ordinance amending Section 20.90.150 of Chapter 20.90 of Title 20 of the San José Municipal Code to clarify the terms under which conditional use permits may be issued for parking facilities in residential districts, and amending Sections 20.10.400 and 20.100.500 of Chapter 20.100 of Title 20 of the San José Municipal Code to allow the Director of Planning, Building, and Code Enforcement to extend the effective term of development permits for an additional period of up to 24 months.  CEQA:  Exempt, PP03-01-033.  (City Attorney’s Office)

            (Rules Committee referral 1/29/03)

 

            Documents Filed: Memorandum from City Attorney Richard Doyle, dated January 29, 2003, recommending approval of said ordinance amending the San José Municipal Code.

 

            Discussion/Action: Council Member LeZotte expressed concerns about the extending of development permits timeline, particularly concerning what would be in the extension language or in current language that would require the developer to demolish any unsightly buildings, citing a situation in District 1 where the ordinance will be applied first, in which the neighborhood is outraged because of buildings that need to be demolished. Director of Planning, Building and Code Enforcement Stephen M. Haase replied the intent is to streamline the current amount of time an applicant or property owner has to use their permit, and would limit review to the conditions of existing permits, however, in those cases we would want to take it up with the permit holder as to what work should have been performed that was not. Council Member LeZotte stated there is nothing in the current permit that states he needs to demolish those buildings until he obtains a building permit, and she would like to find a way to put the requirement in the conditions and her concern is about extending the development permit without requiring at this point the demolition of old buildings which would be demolished eventually regardless of what is developed, allowing an eye sore to the community but one which Code Enforcement does not think warrants enforcement activity. Director Haase stated as part of this revision to allow the Planning Director to process a permit adjustment for the extension, Staff would consider if there is a benefit to allowing the extension and are there other conditions that either are not being followed or that might be considered as a condition for the permit adjustment, and asked the City Attorney to comment on the ability to add a condition through the permit adjustment process. City Attorney Doyle noted that issue is discretionary with the Director of Planning; however, it depends on what is being considered and he will review whether the City can add a condition to demolish a building if it is not part of the original permit. Council Member LeZotte stated the requirement for demolition should be part of the extension. City Attorney stated he would work with the Planning Director on ways to add the maximum flexibility and exercise of his discretion to attach to an extension what he deems to be additional reasonable conditions.

 

            Council Member LeZotte stated the other issue with regard to the extension feature, is that given the economic conditions, someone asking for an extension may look to redesign a project, citing examples in her district where there was a discrepancy between permits as to whether a tree should be saved, and with Staff’s review stated she would like included a mechanism for Staff to ensure that a building comes down when it is a nuisance, but the trees stay until the developer pulls a permit. Council Member LeZotte requested Staff provide some mechanism that whenever these situations come forward and the condition is not in the permit, that Staff can ensure the condition is put into the process in some manner. Director Haase agreed, and added that in the case of a redesign that is significant, that would clearly require a permit amendment as opposed to an adjustment. Upon motion by Council Member LeZotte, seconded by Council Chavez, and unanimously carried, the Staff recommendation was approved with Staff directed to review the issue of attaching conditions to development permit extensions, and Ordinance No. 26820 entitled: “An Ordinance of the City of San José Amending Section 20.90.150 of Chapter 20.90 of Title 20 of the San José Municipal Code to Clarify the Conditions Under Which a Conditional Use Permit for Parking Facilities Can be Allowed in Residential Districts and Amending Sections 20.100.400 and 20.100.500 of Chapter 20.100 of Title 20 of the San José Municipal Code to Allow the Director of Planning, Building and Code Enforcement to Extend the Term of the Development Permits Through an Adjustment”, was passed for publication. Vote 10-0-1-0. Absent: Yeager.

 

STRATEGIC SUPPORT SERVICES

 

3.2       Report of the Rules Committee – January 22, 2003

            Vice Mayor Dando, Chair

 

            Documents Filed: The Rules Committee Report dated January 22, 2003.

 

            (a)        Redevelopment Agency items reported out at Redevelopment Agency meeting.

 

            (b)        City Council

(1)               Review February 4, 2003 Draft Agenda

 

                                    The Committee recommended approval of the February 4, 2003 City Council Agenda with one addition.

 

(2)               Add New Items to January 28, 2003 Amended Agenda

 

The Committee recommended two additions to the January 28, 2003 City Council agenda.

 

(3)               Staff Reports Outstanding. Attachment: Report from City Manager dated January 21, 2003 listing no staff reports outstanding for the January 28, 2003 Council agenda.

 

The Committee noted and filed the City Manager’s report stating there are no staff reports outstanding for the January 28, 2003 Council agenda.

 

(c)                City Council Committees – There were none.

 

(d)               Meeting Schedules - There were none.

 

(e)                The Public Record. Attachment: Memorandum from Assistant City Clerk Nancy Alford dated January 16, 2003 listng the items transmitted to the Administration for the period January 8-14, 2003.

 

                        The Committee directed the City Attorney to respond to Item (a) on the Public Record, informing Mr. Campbell that monthly status reports on compliance with Measure I as it relates to the Civic Center Project are available in the Attorney’s office.  The Committee noted and filed the Public Record.

 

(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

                        (1)        Approve request from Council Member Nora Campos to use Council General funds to attend League of California Cities Policy Committee Meeting on Housing in Ontario, CA, January 23, 2003. Attachment: Memoranda from Council Member Nora Campos dated January 14, 2002 requesting use of Council General funds; and from City Clerk Patricia O’Hearn dated January 17, 2003 summarizing the use of Council General Travel Budget to date.

 

                                    The Committee approved the use of Council General funds by Council Member Campos to attend the League of California Cities Policy Committee Meeting on Housing in Ontario, CA, January 23, 2003.

 

                        (2)        Approve requests from Vice Mayor Pat Dando to use Council General Funds:

                                    (a)        To attend League of California Cities Transportation, Communications & Public Works Policy Committee Meeting in Ontario, CA, January 23-27, 2003.

                                    (b)        To attend League of California Cities Board of Directors Meeting in Oakland, CA, February 7-8, 2003. Attachment: Memoranda from Vice Member Pat Dando, both dated January 15, 2003 requesting use of Council General Funds; and from City Clerk Patricia O’Hearn dated January 17, 2003 summarizing the use of Council General Travel Budget to date.

 

The Committee approved the use of Council General funds by Vice Mayor Dando to attend the League of California Cities Transportation, Communications & Public Works Policy Committee Meeting in Ontario, CA, January 23-27, 2003; and to attend the League of California Cities Board of Directors Meeting in Oakland, CA, February 7-8, 2003.

 

(i)         Oral communications

 

                        In regard to the current State budget crisis, Member Forrest Williams requested information on a place where State legislative activities, of special concern to the City, could be noticed. Chair Dando replied that the City’s Sacramento Lobbyist, Roxanne Miller, and the City’s Director of Intergovernmental Relations, Betsy Shotwell, will notify the Mayor and/or Council Members when it is necessary to testify in Sacramento. Council Member Cortese added that the Peninsula Division of the Cities Association has “strike teams” of people on call who will go to Sacramento in the event something happens in a short time frame. Chair Dando stated that the City is positioned on several levels: Lobbyist Roxanne Miller, the Cities Association Strike Teams, and the League of California Cities Grass Roots effort are all poised to testify on the City’s behalf; effort will be needed to coordinate all the groups to send the same message to Sacramento. Assistant City Manager Mark Linder noted that, starting February 5th, there will be a standing item on the Rules Committee agenda to alert Council to urgent legislative activity in Sacramento which might demand their action or presence.

 

 (j)        Adjournment

 

The Committee adjourned at 2:15 p.m.

 

            Discussion/Action: Upon motion by Vice Mayor Dando, seconded by Council Member Chavez, and unanimously carried, the Rules Committee Report and actions of January 22, 2003 were accepted. Vote 10-0-1-0. Absent: Yeager.

 

3.4       Adoption of a resolution amending the Administrative Citation Schedule of Fines, setting the amount of fines related to the Limitation on Hours of Construction in City Streets, San José Municipal Code Chapter 11.14. CEQA: Not a Project. (Public Works)

 

            Documents Filed: Memorandum from Public Works Director Katy Allen, dated January 13, 2003, recommending approval of resolution amending the Administrative Citation Schedule of Fines for construction in city streets.

 

            Discussion/Action: Vice Mayor asked about the first violation regardless of project, if the fine goes up depending upon the number of fines, or does it change with each project. Public Works Director Katy Allen replied that each contractor on his or her first violation regardless of the project is issued a $500 citation and every infraction in that 12-month period by a contractor on any project is a $1000 citation fine. Upon motion by Vice Mayor Dando, seconded by Council Member Chavez, and unanimously carried, Resolution No. 71400, entitled; “A Resolution of the Council of the City of San José Amending Resolution No. 71216, as Amended, to establish an Administrative Fine for a Violation of the Limitation on Hours of Construction in City Streets, Set Forth in San José Municipal Code Chapter 11.14” was adopted. Vote 10-0-1-0. Absent: Yeager.

 

 

ECONOMIC & NEIGHBORHOOD DEVELOPMENT

 

4.3       Approval of an ordinance amending Chapter 13.28 of Title 13 of the San José Municipal Code to allow licensed contractors to trim, prune, or cut street trees and to allow residents to trim, cut, or prune street trees in emergency situations without the necessity of obtaining a permit and imposing certain notification obligations on a selling or transferring property owner to the purchaser or transferee regarding the condition and existence of street trees on the residential property, to be effective July 1, 2003.  (Transportation)

            [Economic Development & Environment Committee referral 12/2/02 – Item 4.1(e)]

            (Deferred from 12/17/02 – Item 4.8 and 1/21/03 – Item 4.2)

 

            Documents Filed: (1) Supplemental memorandum from Senior Executive Analyst Nadine Nader, dated December 10, 2002, transmitting the Staff Report dated November 18, 2002, from Acting Director of Transportation James R. Helmer, presented to the Economic Development and Environment Committee meeting of December 2, 2002, and reporting the Committee accepted the report. (2) Memorandum from Council Member Cortese, dated January 30, 2003 recommending: [1] Approval of proposed ordinance related to: (a) Tree trimming process, (b) Replacement disclosure upon sale or transfer of residential property; [2] Direct Staff to report back with work plan for implementing a Citywide Street Tree Mapping Program by May 6, 2003, to coincide with City Budget process to allow for consideration with other priorities for upcoming fiscal years with implementation deferred as may be deemed necessary by City Council; [3] Direction for Staff to report back to Rules Committee in two weeks on the possible establishment of a Tree Commission.

 

            Discussion/Action: Council Member Cortese referenced his memorandum dated January 30, 2003, recommending approval of the proposed Street Tree Ordinance and gave a brief overview of the changes being made to the existing ordinance, along with direction for Staff to report back with a work plan for implementing a Street Tree Mapping Program by May 6, 2003, and to report to Rules Committee in two weeks on the possible establishment of a Tree Commission. He stated the result of discussions on the Economic, Development and Environment Committee with input from Council Members are ordinance changes that would require sellers of property to disclose to buyers that the City has a street tree ordinance with certain requirements and guidelines in terms of the number and type of trees that can exist in the park strip. He stated there is no requirement that trees be replaced during escrow periods and nothing in the proposed ordinance or in the memorandum would result in an escrow being delayed. He stated community input indicated property owners prefer not to be responsible for park strip maintenance; however, the City of San José has a long standing ordinance that requires property owners adjacent to a park strip to maintain the park strip, and noted that provision is not being added by this ordinance, but the modification would require that fact to be disclosed so buyers would know they are responsible for maintaining the park strip and be able to review the condition of the park strip during the negotiation and escrow period. He stated the Committee had concerns about having the tree trimming permit requirement for a long time without people taking advantage of the permits, even though there is no cost, which according to Staff and the City Arborist, is due to lack of education in the community and because it is perceived as cumbersome.

 

            Council Member Cortese stated the City has an interest in ensuring that pruning of an established tree is done according to certain standards and therefore, the tree trimming permit cannot be dispensed with completely, and noted one change in the ordinance which would assist contractors who regularly do landscaping work to be placed on an approved list with the City and when employed by homeowners for regular landscaping, and those contractors would need only to indicate the location where they are pruning and would not have secure the individual permits. Regarding enforcement, Council Member Cortese stated there have been instances where a tree is removed or allowed to die and not replaced, and it was his understanding, as verified by Deputy Director Mike Hannon, that Code Enforcement would respond to complaints about destruction of a tree, however, nothing in this ordinance would require Code Enforcement to monitor realtor transactions or paperwork disclosure. He stated a language change removes the problem that occurs when the homeowner who removes a tree and has sold the property requiring Code Enforcement to enforce those provisions against the new owner. Regarding residents’ concerns about park strip trees uplifting sidewalks, he stated current specifications for planting trees in the City’s park strips require root barriers to avoid damage to sidewalks, there should be no damage from new trees planted according to specifications. He stated those homeowners who maintain large trees on their property should not have to care for trees in the park strip, but that issue did not come up in the Committee meeting and is not part of these ordinance changes, and noted that residents should report those who remove trees from park strips without a permit, but may not know whom to call. He stated homeowners should have more choices in the type of trees that can be planted in park strips in order to chose alternatives that compliment their landscaping, and construction companies should be educated as to Codes pertaining to tree maintenance, and noted complaints have been received about damage to trees by garbage trucks pulling too close to park strip trees and residents believe garbage companies should be held responsible for the replacement or restoration of the trees damaged.

 

            Council Member Cortese stated there is an ordinance currently on the books that states at the direction of the City Council, the Department of Streets and Traffic, now the Department of Transportation, should provide a Street Tree Plan indicating the types and location of trees, direction apparently never given even though Code Enforcement allows for tree mapping; and stated the recommendation asks Council to give direction that a Street Tree Mapping work plan be brought to Council by May 6, 2003, and Staff report to Council with strategies to accomplish the direction, and report to the Rules Committee in two weeks on the possible establishment of a Tree Commission, with the expectation that the initial work plan be brought to Rules on February 18, 2003. Council Member Cortese moved approval of his memorandum, dated January 30, 2003, to approve the proposed ordinance related to the tree trimming process and replacement disclosures upon sale or transfer of residential property, with direction to Staff to report back with a work plan for implementing a Citywide Street Tree Mapping Program, to coincide with the City’s budget process, and direction to Staff to report back to the Rules Committee in two weeks on the possible establishment of a Tree Commission. Vice Mayor Dando seconded the motion. Council Member Reed expressed support for Council Member Cortese’ work on the issue, however, asked how the Street Tree Mapping Program and the Tree Commission might fit into the current budgeting process and whether it would be preferable to spend the money on street tree maintenance or give money to Our City Forest to plant trees or to City Arborist Ralph Mize to deal with unhealthy trees, and suggested Staff bring back an analysis of the best choices for those funds. Council Member Cortese replied the May deadline, besides giving Staff more time, was selected to coincide with the budget process, and noted help could be available from the professional community of realtors if there was a database similar to that used for seismic study and flood control areas, and noted volunteerism is written into the recommendation with a challenge for Staff to work with Strong Neighborhoods Initiative volunteers and others such as Our City Forest.

 

            Vice Mayor Dando questioned whether people failing to obtain tree trimming permits has been a problem, that the only complaints were due to City contracts where trees were butchered, and stated trees not being trimmed are reported on rare occasions when there is a public safety issue. She stressed not making it difficult for people to live in San José, or preventing people from regularly trimming their trees even though most have never obtained a permit. She agreed with creating an approved-tree-list and suggested providing information to homeowners before they sell and move away, sending information with business license taxes to organizations that sell tree or maintain trees. Council Member Gregory expressed concern as to how the City would fund the tree mapping given the budget situation and about Council not knowing the scope of the problem¸ particularly which districts are more impacted than others. He commented on the financial burden to low income families and suggested a revolving fund to defray costs where there are preexisting problems and people cannot afford to replace missing trees. Council Member LeZotte acknowledged Council Member Cortese for his thorough review of the Street Tree Ordinance, stated there is a large volunteer component to Our City Forest and neighborhood associations in addition to City Staff, and expressed frustration about City Staff going out to solve one problem and not having authority to address other problems, such as was reported by the Street Stripping Team. She raised concerns about instances where the City has denied a permit to remove a healthy well-established tree on the City Arborist’s advice, and the homeowner finds a private contractor who trims the tree so excessively that it dies. Council Member LeZotte suggested Staff be thoughtful and experimental in approaching the problem given the budget impacts of the work load assessment, including factoring in volunteerism, using Our City Forest and matching funds and/or grants and to provide trees and assist in plantings and other assistance using budget neutral measures.

 

            Mayor Gonzales called for public testimony and Chris Clark, Steven Etheridge, Paul Stewart, William Garbett and Ross Signarino spoke regarding the Smart Tree Ordinance. Council Member Chavez commented on the issue of cooling off the urban climate in high temperatures, particularly in neighborhoods without trees, and expressed support for the proposal, especially since Staff will report on estimated costs, and noted that trees make homes cooler in the summer and saves electricity and encourages communities to be better guardians have better partnerships with nature. Council Member Williams commented on the lack of consistency throughout the City in terms of street configurations and trees, which the proposal would address, and noted the benefit which well placed and maintained trees add to a community, expressed concerns about the impact of the lack of funding on maintenance, especially with homeowner turnover and the severity of the problem. He commented on the risks associated with trimming trees and raised the issue of liability and whether trees should be professionally trimmed. Responding to questions from Council Member Campos about the process for planting a tree in the park strip, Transportation Director James Helmer stated a homeowner wanting to plant or replace a tree in a park strip would contact the Department of Transportation, the City Arborist would determine from the database what species of trees are the best candidate trees for that site and work with Our City Forrest to assist property owners, and be added to the database, with the goal of making planting easy and avoiding problems with other trees or utility lines, and provide assistance to homeowners needing financial assistance.

 

            Mayor Gonzales acknowledged Council Member Cortese’ efforts and commented that trees are a quality of life issue, however, the question is how Staff can accomplish the objective. He stated the proposal, which comes back to Council with new costs will be measured against all other core services and issues that have to be addressed at budget time. He stressed finding ways to accomplish the City’s goals in creative ways and noted Our City Forest may not have the same level of resources received from the City in the past. He commented on the difficulties of successful tree pruning, on the benefit to the neighborhoods and the importance of educating and assisting residents. Mayor Gonzales asked Council Member Cortese if he would consider adding to Recommendations 2 and 3 of his memorandum and ask for everything to come back at budget time, which would mean the concept of a Tree Commission come back at the same time so that its costs can also be weighed against all the other issues before Council at that time. Council Member Cortese agreed with amending the motion to add that change. Responding to Vice Mayor Dando’s request for clarification, Council Member Cortese reiterated that the tree trimming permit is not being added today and is already a requirement of the City, and explained that at the Committee meeting the City Arborist and Transportation Director Helmer stated because of the size of the City, there is too much opportunity and incidence of people destroying fully established trees to not have the permit requirement and indicated Staff will continue to educate the community in seeking permits since there is no cost, and the only change being recommended pertaining to the tree trimming permit process is the creation of an approved list of tree trimming contractors who would not need individual permits to service their clients.

 

            Vice Mayor Dando’s questions about enforcement of the ordinance were responded to by City Attorney Doyle who clarified that the City’s code enforcement system is a complaint driven process and that would not change. Vice Mayor Dando asked the maker of motion to add direction for Staff to make every effort to educate current residents of the need to obtain tree trimming permits and not wait until the home is sold to educate the new homeowner, and Council Member Cortese agreed to the amendment and suggested any such recommendations come back on May 6, 2003 at the same time as the other two elements of the Staff direction. Vice Mayor Dando requested Staff quantify the extent of the problem with trees being damaged by inappropriate trimming or being illegally removed and include in the report coming back to Council in May. Council Member LeZotte requested clarification about the permit requirement triggering fines and the system being defined as a complaint-driven process, and stressed the need to educate residents before they incur fines, and the goal of ensuring that trees are properly pruned and the public educated about the permit. City Attorney Doyle replied that the proposal is not changing the way the City is approaching that issue now and to the extent that there is a law on the books, residents cannot be told the ordinance would not be enforced since it is the law, that an education process is warranted, that currently there is no exemption process and the proposed ordinance allows for an exemption process if an individual uses an approved contractor in which case no permit would be required. However, he reiterated that the ultimate issue is how to enforce the tree-trimming permit and it is enforced now on a complaint-driven process and nothing in the way of enforcing this ordinance will change.

 

            On a call for the question, the motion carried unanimously, and the memorandum from Council Cortese dated January 30, 2003, recommending approval of the Staff recommendation dated November 18, 2002, and approval of direction for Staff as specified therein, and as amended by the City Council to indicate that both Staff Recommendations 2 and 3 come back to Council together by May 6, 2003, and to include additional direction for Staff to focus on educating residents on tree-trimming permit procedures and to provide an analysis of the extent of damage or illegal removal of trees, was approved; and Ordinance No. 26821, entitled: “An Ordinance of the City of San José Amending Sections 13.28.130 and 13.28.190 of Chapter 13.28 of Title 13 of the San José Municipal Code, and Adding a New Section 13.28.195, to Allow Licensed Contractors to Trim, Prune or Cut Street Trees and to Allow Residents to Trim, Cut or Prune Street Trees in Emergency Situations Without the Necessity of Obtaining a Permit from the Department of Transportation, and to Impose, Prior to the Sale or Other Transfer of Residential Real Property, Notification Obligations on the Selling or Transferring Property Owner to the Purchaser or Transferee Regarding the Condition and Existence of Street Trees on the Residential Property, to Take Effect on July 1, 2003”, was passed for publication, and additional direction given to Staff on issues raised by the Council. Vote: 10-0-1-0. Absent: Yeager.

 

4.4       Adoption of a resolution:

            (a)        Approving an agreement with José and Socorro Torres for the purchase of land located at 21-35 South White Road, in the amount of $1,414,000;

            (b)        Authorizing the Director of Public Works to enter into an agreement resolving relocation claims arising from this transaction for an amount not to exceed $206,000; and.

            (c)        Authorizing the Director of Public Works to execute all documents necessary to complete these transactions.

            CEQA: Exempt, PP03-01-004. Council District 5. SNI: East Valley/680 Community. (Public Works)

 

            Documents Filed: Memorandum from Public Works Director Katy Allen, dated January 13, 2003, recommending adoption of said resolution.

 

            Discussion/Action: Upon motion by Council Member Campos, seconded by Council Member Chavez, and unanimously carried, Resolution No. 71401, entitled: “A Resolution of the Council of the City of San José: (1) Approving an Agreement With Jose and Socorro Torres for the Purchase of Land Located at 21-35 South White Road in the Amount of $1,414,000; (2) Authorizing the Director of Public Works to Enter Into an Agreement Resolving Relocation Claims Arising From This Transaction for an Amount Not to Exceed $206,000; and (3) Authorizing the Director of Public Works to Execute All Documents Necessary to Complete These Transactions”, was adopted. Vote: 10-0-1-0. Absent: Yeager.

 

 

RECREATION & CULTURAL SERVICES

 

5.2       (a)        Report on bids and award of contract for the Southside Community Center Phase II Renovations Project to the lowest responsive bidder, D.L. Falk Construction, Inc., in the amount of $500,355, and approval of a contingency in the amount of $50,000.

            (b)        Adoption of the following appropriation ordinance amendments in the Parks and Recreation Bond Projects Fund:

                        (1)        Increase the Southside Community Center - Multi-Service/Senior Center Project by $30,000.

                        (2)        Decrease the Ending Fund Balance by $30,000.

            CEQA: Exempt, PP02-06-175.  Council District 2. (Public Works/City Manager's Office)

            (Rules Committee referral 1/29/03)

 

            Documents Filed: Memorandum from Public Works Director Katy Allen and Budget Director Larry D. Lisenbee, dated January 27, 2003, [1] Recommending award of said contract, with related contingency, to the lowest responsive bidder, D.L. Falk Construction, Inc.; and [2] Adoption of appropriation ordinance amendments in the Parks and Recreation Bond Project Fund.

 

            Discussion/Action: Upon motion by Council Member Williams, seconded by Council Member Chavez, and unanimously carried, the award of said contract, with related contingency, to the lowest responsive bidder, D.L. Falk Construction, Inc., was approved and Ordinance No. 26822, entitled: “An Ordinance of the City of San José Amending Ordinance No. 26674 to Appropriate Moneys in the Parks and Recreation Bond Projects Fund for the Southside Community Center Project; and Providing That This Ordinance Shall Become Effective Immediately Upon Adoption”, was adopted. Vote 10-0-1-0. Absent: Yeager.

 

TRANSPORTATION SERVICES

 

6.2       Report on bids and approval to reject all bids for the Smart Intersections Program Communications System Constructions 2002 Phase 1, Package B Project.  CEQA:  Exempt, PP 02-04-092.  SNI:  Tully/Senter.  (Public Works)

            (Deferred from 12/17/02 – Item 6.1 et al., and 1/28/03 – Item 6.2)

 

            Documents Filed: (1) Supplemental memorandum from Public Works Director Katy Allen, dated January 29, 2003, recommending approval to reject all bids of the Smart Intersections Program Communications System Constructions 2002 Phase I, Package B Project. (2) Memorandum from Public Works Director Katy Allen, dated November 25, 2002, recommending award of said contract, with related contingency, to the lowest bidder, Prism Engineering, Inc.

 

            Discussion/Action: Council Member Campos commented on previous discussions with Public Works Director Katy Allen pertaining to contractors not paying prevailing and living wages, and suggested Staff explore the opportunity within Public Works of putting a system in place which would help Council monitor contractors that are currently not paying prevailing and living wages before award of contract comes forward to Council. Director of Public Works Director Katy Allen replied that Staff is evaluating ideas to bring forward and will keep Council and City Manager informed. Council Member Reed clarified that in October 2002, Council directed Staff to bring back prevailing and living wage enforcement program and he commented that this level of information is a piece of that program which should be coming back to Council. Upon motion by Council Member Campos, and unanimously carried, the rejection of all bids was approved, with direction to Staff to explore a system of monitoring contractors who have not paid prevailing or living wages before recommendation of contract awards come forward, and report back to Council with recommendations on enforcement regulations. Vote 10-0-1-0. Absent: Yeager.

 

 

ENVIRONMENTAL & UTILITY SERVICES

 

7.1       PUBLIC HEARING on the Commercial Solid Waste and Recyclables Collection Franchise application of Environmental Resource Recovery dba Valley Recycling, approval of ordinance granting the franchise, and approval of Commercial Solid Waste and Recyclables Collection Franchise agreement with Environmental Resource Recovery dba Valley Recycling.  (Environmental Services)

 

            Documents Filed: (1) Memorandum from Environmental Services Director Carl W. Mosher, dated January 13, 2003, recommending approval of Commercial Solid Waste and Recyclables Collection Franchise, and approval of said franchise agreement with Environmental Resource Recovery dba Valley Recycling. (2) Proof of Publication of Public Hearing, executed on January 17, 2003, submitted by the City Clerk.

 

            Discussion/Action: Upon motion by Council Member Chavez, seconded by Council Member Dando, unanimously carried, and Ordinance No. 26823 entitled; “An Ordinance of the City of San José Granting a Commercial Solid Waste and Recyclables Collection Franchise to Environmental Resources Recovery, Inc., DBA Valley Recycling” passed for publication, and the Commercial Solid Waste and Recyclables Collection Franchise agreement with Environmental Resource Recovery dba Valley Recycling, was approved. Vote: 10-0-1-0. Absent: Yeager.

 

JOINT COUNCIL/REDEVELOPMENT AGENCY

 

The Redevelopment Agency Board convened at 3:00 p.m. to consider item 10.1 in a joint session.

 

10.1     Discussion and approval of a budget strategy to address the City and Redevelopment Agency budgets.  (Mayor)

            (Rules Committee referral 1/29/03)

 

            Documents Filed: Memorandum from Mayor Ron Gonzales, dated January 31, 2003, recommending Council approval of the Mayor’s Proposed Budget Strategy for FY 2003-2004.

 

            Discussion/Action: Mayor Gonzales thanked City Manager Borgsdorf and City Administration for their work in developing a budget strategy for Fiscal Year 2003-2004. He stated the budget for the City of San José will be heavily impacted by the State’s severe budget crisis, and the Council and Staff understand the severity of the situation. He stated the recommendations being brought forward are extensive and it is difficult to not be able to expand services to continue to meet the needs of the people of San José; however, the Council is dedicated to continuing to find creative ways to meet the needs of the people of San José. Mayor Gonzales opened the public hearing and William J. Garbett spoke on the issue. Vice Mayor Dando moved approval of Mayor Gonzales’ Budget Strategy Proposal dated January 31, 2003. Council Member Chavez seconded the motion. Mayor Gonzales stated in the City, as in any organization, most expenses are related to the salary benefits of the employees who carry out the mission of the organization, and he wants all employee groups to have the opportunity to share ideas on where to save and how to get through this difficult time and he will be inviting employee groups to meet with him in the near future. He stated his Proposed Budget Strategy memorandum if approved by the Council, will ask the City Manager to meet with all employee groups.

 

            Council Member Chavez expressed appreciation for Mayor Gonzales’ commitment to reducing employee layoffs and, while it is not the role of the Mayor or City Council to negotiate with employee bargaining units, she applauded the Mayor’s goal of working personally with employee bargaining units and directing Staff to work with bargaining units to find ways to limit the number of employee layoffs. She asked whether the proposed strategy would include using the City’s competition policy and assessing whether money could be saved by bringing services back in-house and working with other entities, such as the County, to combine services, and Mayor Gonzales noted that any direction has to be consistent with existing Council policy. Council Member Chavez expressed concerns about deadlines for construction projects funded by Redevelopment or the General Fund from past budgets, and wanted to ensure the City does not stop meeting deadlines and miss or move deadlines, getting further behind. Mayor Gonzales stated he expects the City Manager and Redevelopment Director will prepare a matrix with categories of projects, such as reviewing the rescheduling of a Capital Improvement Project not yet engineered and with tremendous operating costs, such as the new library, and Staff needs to consider what makes sense in terms of projects, with Council determining which projects are approved. Council Member Chavez stated she would like to see a trajectory of original projections for encumbering General Fund obligations compared to what Staff is recommending, and what, if any, increased costs would Staff expect from the capital projects. Mayor Gonzales agreed with her concerns, but stated today is not the day to discuss capital projects, and cautioned that once a facility is built a commitment is made, citing as example the building of a library which cannot be opened or staffed.