MINUTES OF THE CITY COUNCIL

SAN JOSÉ, CALIFORNIA TUESDAY, APRIL 15, 2003

The Council of the City of San José convened in regular session at 9:30 a.m. in City Council Chambers at City Hall.

Present: Council Members - Campos, Chavez, Chirco, Cortese, Dando, Gregory, LeZotte, Reed, Williams, Yeager, Gonzales.

Absent: Council Members - None

Upon motion unanimously adopted, Council recessed at 9:35 a.m. to a Closed Session in Room 600 to (A) Confer with Real Property Designated Representatives pursuant to Government Code Section 54956.8: (1) Property: 2211 N. First Street, San José, California, Designated Representatives: Paul Krutko for the City of San José and John Hankey for Novel, Under Negotiation: Price and Terms of Payments; (B) to confer with Legal Counsel pertaining to existing litigation pursuant to Government Code Section 54956.9 under subsection (a) in the case of Horta v. City of San José, et.al.; (C) to confer with Legal Counsel pertaining to anticipated litigation pursuant to Government Code Section 54956.9 under subsection (b) in one matter pertaining to significant exposure to litigation; and under subsection (c) in two matters pertaining to initiation of litigation; and (D) to conduct public employee performance evaluation pursuant to Government Code Section 54957, Title: City Auditor; and (E) to confer with Labor Negotiator pursuant to Government Code Section 54957.6: City Negotiator: City Manager designee Alex Gurza, and the following Employee Organizations: (1) Police Officers Association, (2) International Association of Firefighters, Local 230, (3) Municipal Employees Organization, (4) Confidential Employees Organization, (5) Association of Building and Mechanical and Electrical Inspectors, (6) International Brotherhood of Electrical Workers, (7) Operating Engineers, Local 3, (8) Association of Maintenance Supervisory Personnel, (9) City Association of Management Personnel.

By unanimous consent, Council reconvened from the Closed Session and recessed at 11:00 a.m. and reconvened at 1:31 p.m. in the Council Chambers.

Present: Council Members - Campos Chavez, Chirco, Cortese, Dando, Gregory; LeZotte, Reed, Williams, Yeager; Gonzales

Absent: Council Members - None.

INVOCATION

Pastor Dick Bernal of the Jubilee Christian Center delivered the Innovation. (District 4)

Pledge of Allegiance

Mayor Gonzales led the Pledge of Allegiance.

Orders of the Day

Upon motion by Vice Mayor Dando, seconded by Council Member Chavez, and unanimously carried, the Orders of the Day and the Amended Agenda, with Item 2.3 deferred to April 29, 2003, were approved. Vote: 11-0-0-0.

CONSENT CALENDAR

Upon motion by Vice Mayor Dando, seconded Council Member Chavez, and unanimously carried, the Consent Calendar was approved and the below listed items taken as indicated. Vote: 11-0-0-0.

2.1 Approval of City Council Minutes for:

(a) Regular meeting of August 20, 2002

(b) Joint City Council/Redevelopment Agency Board meeting of August 20, 2002

Documents Filed: Minutes of the Regular Council and Joint City Council/Redevelopment Agency Board meetings of August 20, 2002.

Discussion/Action: The minutes were approved. Vote: 11-0-0-0.

2.2 Final adoption of ordinances.

(a) ORD. NO. 26863 – Rezones certain real property situated on the southwestern corner of Minnesota Avenue and Bird Avenue to CN Commercial Neighborhood Zoning District. C 03-011

Documents Filed: Proof of Publication of the title of Ordinance No. 26863, executed on April 8, 2003, submitted by the City Clerk.

Discussion/Action: Ordinance No. 26863 was adopted. Vote: 11-0-0-0.

(b) ORD. NO. 26864 – Prezones certain real property situated on the west side of Union Avenue, approximately 80 feet northerly of Ronda Drive, to R-1-8 Residential Zoning District. C 02-067

Documents Filed: Proof of Publication of the title of Ordinance No. 26864, executed on April 8, 2003, submitted by the City Clerk.

Discussion/Action: Ordinance No. 26864 was adopted. Vote: 11-0-0-0.

(c) ORD. NO. 26865 – Rezones certain real property situated on the northeast corner of S. Third and E. William Streets to A(PD) Planned Development Zoning District. PDC 02-083

Documents Filed: Proof of Publication of the title of Ordinance No. 26865, executed on April 8, 2003, submitted by the City Clerk.

Discussion/Action: Ordinance No. 26865 was adopted. Vote: 11-0-0-0.

2.4 Approval of a grant agreement with United Way Silicon Valley in the amount of $250,000 for capacity building. CEQA: Not a Project. (City Manager’s Office)

Documents Filed: Memorandum from City Manager Del Borgsdorf, dated April 1, 2003, recommending approval of said grant agreement with United Way Silicon Valley.

Discussion/Action: The grant agreement with United Way Silicon Valley in the amount of $25,000 for capacity building was approved. Vote: 11-0-0-0.

2.5 Approval of award of open purchase orders for supplies, materials, equipment, and services for FY 2002-2003 #29 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 March 24, 2003, recommending approval of said open purchase orders List #29 FY 2002-2003.

Discussion/Action: The award of open purchase orders List #29 FY 2002-2003 was approved and execution of the purchase orders authorized. Vote: 11-0-0-0.

2.6 Adoption of a resolution approving a loan amount not to exceed $236,827 to Morrone Gardens Associates, a California Limited Partnership (“Morrone L.P.”), to provide funds for rehabilitation and preventative measures associated with potential mold hazards. CEQA: Not a project. Council District 9. (Housing)

Documents Filed: Memorandum from Housing Director Leslye Corsiglia, dated March 26, 2003, recommending approval of said loan to Morrone Gardens Associates.

Discussion/Action: Resolution No. 71491, entitled: “A Resolution of the Council of the City of San José (i) Approving Loan of up to $236,827 to Morrone Gardens Associates for the Rehabilitation of 102 Unit Rental Housing Project Affordable, and (ii) Authorizing the Director of Housing to Negotiate and Execute All Necessary Document Evidencing Such Loans on Behalf of the City”, was adopted. Vote : 11-0-0-0.

2.7 Adoption of a resolution initiating proceedings and setting April 29, 2003 at 1:30 p.m. for Council consideration on the reorganization of territory designated as Bascom No. 37, which involves the annexation to the City of San José of 1.70 gross acres, located at the southwest corner of Forest Avenue and Ciro Avenue, and the detachment of the same from the following special districts, including West Valley Sanitation, Central Fire Protection, Santa Clara Valley County Water and Area No. 01 (Library Services) County Service. CEQA: Resolution No. 65459. Council District 6. (Planning, Building and Code Enforcement)

Documents Filed: Memorandum from Planning, Building and Code Enforcement Director Stephen M. Haase, dated March 24, 2003, approval to place said resolution on the Consent Calendar of April 15, 2003 for adoption of said resolution.

Discussion/Action: Resolution No. 71492, entitled: “A Resolution of the Council of the City of San José Initiating Reorganization Proceedings for the Annexation and Detachment of Certain Uninhabited Territory Designated as Bascom No. 37 and Described Herein, and Setting the Date and Place for Consideration of Such Reorganization” was adopted. Vote: 11-0-0-0.

2.8 Approval of Contract Change Order (CCO) No. 8 with R.G.W. Construction, Inc. for the Foxworthy Avenue Bridge at the Guadalupe River Project in the amount of $117,000, increasing the total contract amount to $2,435,960.72, and increasing the contingency from $210,000 to $276,000. CEQA: Resolution No. 67894. Council District 7. (Public Works)

Documents Filed: Memorandum from Public Works Director Katy Allen, dated March 24, 2003, recommending approval of Contract Change Order No. 8 with R.G.W. Construction.

Discussion/Action: William Garbett spoke on the issue. The Contract Change Order No. 8 with R.G.W. Construction for the Foxworthy Avenue Bridge at Guadalupe River project was approved. Vote: 11-0-0-0.

2.9 Acceptance of the San José Arena Authority’s 2001-2002 Annual Report. CEQA: Not a Project. (San José Arena Authority)

Documents Filed: Memorandum from San José Arena, Executive Director, Chris Morrisey, dated March 18, 2003, approving San José Arena Authority’s Annual Report for Fiscal Year 2001-2002.

Discussion/Action: The San José Arena Authority’s Annual Report for Fiscal Year 2001-2002, was accepted. Vote: 11-0-0-0.

2.10 Approval of the appointment of three members to the Independent Hearing Panel, for solid waste enforcement and permitting, consisting of a technical expert, a member of the public, and a member of the City Council. (Mayor)

(Rules Committee referral 4/9/03)

Documents Filed: None.

Discussion/Action: This item was deferred to April 22, 2003.

2.11 Adoption of a resolution authorizing the City Manager to negotiate and execute an agreement with KaBOOM! Inc. to accept a donation of playground equipment and services for Watson Park with an approximate value of $50,000 including donated labor, requiring a City contribution to the project of $2000, plus site preparation, staff time to coordinate volunteer efforts and community meetings, approve the design and final installation, and which may obligate the City to pay certain costs incurred by KaBOOM! and its funding partners if the installation of the playground equipment does not occur on June 28, 2003. CEQA: Exempt, PP03-04-114. (Parks, Recreation, and Neighborhood Services)

(Rules Committee referral 4/9/03)

Documents Filed: Memorandum from Parks, Recreation and Neighborhoods Services Director Sara L. Hensley, dated April 11, 2003, recommending approval of said resolution.

Discussion/Action: William Garbett spoke on the issue. Resolution No. 71493, entitled: “A Resolution of the Council of the City of San José Authorizing the City Manager to Negotiate and Execute an Agreement With KaBOOM! Inc. to Accept a Gift of Playground Equipment and Services for Watson Park Valued at Approximately $50,000” was adopted. Vote: 11-0-0-0.

END OF CONSENT CALENDAR

2.3 Approval of a ground lease with ACM Aviation, LLC (ACM) for the construction and operation of a new Fixed Base Operation on the southwest side of Norman Y. Mineta San José International Airport, for a 30 year term with one 10 year option, with the first year’s interim construction rent commencing at notice to proceed, in the amount of $86,339, and in the second year of construction in the amount of $172,679, and subsequent annual rents in the amount of $345,359, subject to annual Consumer Price Index increases, and subject to increase by appraisal every 5 years during the term of the lease. CEQA: Resolution No. 67380, PP 00-12-180. (Airport)

(Deferred from 4/1/03 – Item 2.3)

Documents Filed: (1) Supplemental memorandum from Aviation Director Ralph G. Tonseth, dated April 3, 2003, recommending approval of ACM Aviation, LLC Ground Lease with explanation of events and the subsequent actions by ACM and the Airport; (2) Memorandum from Aviation Director Ralph G. Tonseth, dated March 12, 2002, recommending approval of a ground lease with ACM Aviation, LLC (ACM).

Discussion/Action: Council Member Yeager stated because this contract covers 30 years and will set the tone for other fixed-base operators (FBOs) with whom the City contracts in the future, he is concerned that it be done correctly. He stated part of his concern was the curfew and going into the contract with the optimistic view that curfew issues will be worked out with the FAA. He stated if the City cannot change the contract and the issue continues to be tested through the courts, the City’s best hope may be to get operators to voluntarily agree to abide by the curfew and perhaps even be willing to pay penalties for violations. He stated as evidenced from the Staff reports, as the business jet traffic increases, and business for commercial airlines increases, there may be more curfew infractions with more planes coming into the airport. He stated he believes the lease with ACM Aviation is good and provides that if ACM fails to comply with the Airport Noise Control Program the City has the right to terminate the ground lease upon the occurrence of an event of default and, while it is unclear how many times out of compliance is required to take away their contract, he is glad for that provision. Council Member Yeager stated he also appreciates the language governing subleases by ACM Aviation which provides; that should any of the sub-lessees violate the curfew, the City has the right to terminate the sublease. He stated again it is unclear how many times they could violate the curfew before the City would act, although the report states even after one infraction the City can terminate, he suggested adding language stating the City definitely will cancel the contract if there is a second violation. He expressed concern about the so-called “itinerant aircraft” that do not have a lease and do not abide by the curfew. Aviation Director Tonseth stated itinerant aircraft are aircraft which transition in and out of San José for independent reasons and do not have a relationships with any of the operators at the airport is one that is not assigned to any particular fixed-base operation. He stated the City cannot tie an FBO lease into responsibility for itinerant operations, and it falls upon Staff and the City Attorney’s Office to deal with those kind of infractions.

City Attorney Doyle addressed the issue of subleases and the City’s options, stating that if a sublessee violates the curfew it is deemed to be a prohibited operation and is a material breech of the contract, and the City can evict based upon any material breech of the agreement. On the subject of itinerant operators, he stated that is in essence a separate enforcement action where the City would need to go against the operators individually. He stated Staff is working on devising a fee or penalty program because writing letters has not been sufficient and going to court is a more cumbersome process, so there are internal remedies the City has, but the Administration is trying to improve on those remedies and although remedies are yet to be in place, Staff is working on those issues. Council Member Yeager asked about services being provided to planes which come into San José in the middle of the night and is there something the City provides those aircraft, that in fact could be withheld if an aircraft is in violation of the curfew. Director Tonseth replied that he was not aware of anything the City could do and noted that itinerate operations run the gambit from a quick stop to a full-service operation, the FBO provides some ground handling. He stated if planes come in after the curfew they have already broken the curfew and not ground-handling them would not seem to solve the problem and that the nexus of the issue is trying to control the itinerants in a way they understand what the program is without harming those trying to do business in San José, but making them fully partners in the Airport’s Noise Curfew Program.

Council Member Yeager questioned the number of Stage III business curfew intrusions, and violations by Stage II business jets, and Stage III transport jets, and stated those violations will continue to be a problem and before approving this contract, he would like the Administration to review ways to have more control over these types of aircraft, that he is not satisfied with just sending letters to violators, and he moved to defer this item to April 29, 2003, to see if Staff can tighten the language and do whatever possible to provide improvement to the provisions, specifically pertaining to the itinerant planes. Council Member Chavez seconded the motion. City Attorney Doyle stated Staff will review the issue if Council wishes to defer the issue, however, his view is that the best enforcement would be a penalty structure because it is simpler and can be handled administratively, and stated Staff does not have all the answers on what the City can do to effectively to keep out the itinerant aircraft, that they have a right to land, and yet the City is limited at this point, however, Staff will review the City’s available options and report to Council in two weeks. Council Member LeZotte requested Staff provide clarification on a category on the latest noise report called “Other San José” as to what it refers, particularly with regard to anything west of Highway 17. On a call for the question, the motion carried unanimously, and the item was deferred to April 29, 2003, with Staff directed to report on options to address issues pertaining to itinerant planes and clarify the listing of violations under the “Other San José ” category on the latest noise report. Vote 11-0-0-0.

STRATEGIC SUPPORT SERVICES

3.2 Report of the Rules Committee – April 2, 2003

Vice Mayor Dando, Chair

Documents Filed: The Rules Committee Report dated April 2, 2003.

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

(b) City Council

(1) Review April 15, 2003 Draft Agenda

The Committee recommended approval of the April 15, 2003 City Council agenda with one addition.

(2) Add New Items to April 8, 2003 Amended Agenda

The Committee recommended three additions to the April 8, 2003 City Council Agenda.

(3) List of Reports Outstanding. Attachment: Report from City Manager dated April 1, 2003 listing one staff report outstanding for the April 8, 2003 Council agenda.

The Committee noted and filed the City Manager’s report listing one staff report outstanding for the April 8, 2003 Council meeting.

(c) Legislative Update

(1) State

(a) Update on AB 980 (Salinas), self-certification of local Housing Elements

Director of Intergovernmental Relations Betsy Shotwell reminded the Committee that last month Stephen Haase, Director of Planning, and she brought forward a discussion on ways the City could streamline its housing element process. She noted that AB 980 (Salinas), a bill to authorize self-certification of local Housing Elements, will be heard next week in the Local Government Committee; if it passes, it will to on to the Assembly Housing Committee. Vice Mayor Dando, who is chairing the League of California Cities’ Legislative Committee, noted it is important to obtain Santa Clara County Cities Association support for the bill. The Committee accepted the report.

(2) Federal

(a) Federal Lobbyist Monthly Report. Attachment: Memorandum from Betsy Shotwell, Director of Intergovernmental Relations, dated March 26, 2003 transmitting the February 2003 monthly report from the City’s Federal lobbyist firm of Patton Boggs, LLP.

In order to provide an orderly transition from the City’s previous lobbyist to the newly-hired firm, Vice Mayor Dando requested Patton Boggs, LLP submit a transition report indicating status for all past and present projects. The Committee accepted the monthy report from Patton Boggs, LLP.

(b) President’s Economic Stimulus Package and Impacts on Low-Income Housing Tax Credit Program. Attachment: Memorandum from Leslye Corsiglia, Director of Housing, and Betsy Shotwell, President’s Economic Stimulus Package and Impacts on Low-Income Housing Tax Credit Program. Director of Intergovernmental Relations, dated March 27, 2003 recommending the City pursue legislative changes in Congress to the President’s Economic Stimulus Package, in order to protect the Low-Income Housing Tax Credit.

President’s Economic Stimulus Package and Impacts on Low-Income Housing Tax Credit Program.

Director of Housing Leslye Corsiglia explained that there is credible concern that corporations may discontinue or substantially reduce investments in Housing Credit properties if the President’s tax-exempt dividends proposal is approved. Betsy Shotwell, Director of Intergovernmental Relations, added that Patton Boggs, the City’s Federal Lobbyists, suggested the City join with other cities and entities in lobbying to protect the Low-Income Housing Tax Credit. The Committee accepted the report.

(d) Meeting Schedules - There were none.

(e) The Public Record. Attachment: Memorandum from City Clerk Patricia O’Hearn dated March 27, 2003 transmitting items received for the Public Record for the period March 19-25, 2003.

The Committee noted and filed the Public Record.

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

(g) Council Referrals for Assignment to Administration or Council Appointee.

There were none.

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

(i) Oral communications

Ross Signerino expressed concern that the names of the Council Standing Committees do not reflect their purpose.

(j) Adjournment - The meeting adjourned at 2:30 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 April 2, 2003 were accepted.

3.4 Approval of a report back from the City Clerk on the methodology for performance measures and overview targets. (Mayor)

(Deferred from 3/11/03 – Item 3.4 and 4/1/03 – Item 3.4)

Documents Filed: None.

Discussion/Action: This item deferred to April 29, 2003.

3.5 Council consideration of the Airport Commission’s recommendation to adopt an ordinance that would allow the City of San José and Norman Y. Mineta San José International Airport to recover the cost of the disruption of normal airport operations by people who intentionally violate airport security rules. (Reed)

(Rules Committee referral 3/26/03)

Documents Filed: (1) Memorandum from Council Members Campos and Cortese, dated April 15, 2003, recommending the City develop a Citywide Cost Recovery Ordinance allowing reimbursed costs to the City associated with responding to public disturbances. (2) Memorandum from Council Member Reed, dated March 20, 2003, recommending Council agendize for Council consideration adoption of civil action ordinance related to intentional disruptions to airport security system. (3) Memorandum from Assistant to the City Manager, Deanna J. Santana, dated April 3, 2003, providing transmittal of information and background material of Airport Commission’s recent action.

Discussion/Action: Mayor Gonzales opened the public hearing and Don Simpson, Airport Commissioner, Billie Wachter, Affordable Housing Network, and William Garbett, spoke on the issue. Council Member Reed stated as liaison to the Airport Commission’s He had asked this item be placed on the agenda following the Commission’s discussion of the of the issue. Simply put, he stated people who commit bomb hoaxes at the airport could be prosecuted under federal law but rarely are because the U.S. Attorney’s Office has bigger things to deal with and the last hoax perpetrated in San José inconvenienced passengers, costing the City and the airlines a lot of money and there was no penalty, so the Commission has recommended Council adopt an ordinance that will allow the City to at least attempt to collect costs incurred when people either commit hoaxes or intentionally bypass security that can inconvenience thousands of people. Council Member Reed moved approval of the recommendation of the Airport Commission that Council consider the adoption of an ordinance that would allow the City of San José and Norman Y. Mineta San José International Airport to recover the cost of the disruption of normal airport operations by people who intentionally violate airport security rules. Council Member Campos seconded the motion.

Mayor Gonzales asked Council Member Reed if he would accept an amendment to his motion, to approve the memorandum dated April 15, 2003, by Council Members Cortese and Campos, which recommends: (1) Approval of the Airport Commission’s recommendation to adopt a civil action ordinance related to intentional disruption of the Airport Security Systems for the purpose of recovering the City’s costs in responding to such incidents, and (2) Directing Staff to develop a similar Citywide Cost Recovery Ordinance that allows the City to be reimbursed for costs associated with responding to public disturbances such as “fake emergencies” and/or “public nuisances”. Council Member Reed agreed to the amendment unless Staff has reasons why the fake emergencies or public nuisances elsewhere would be treated differently, since it seemed to him that one ordinance would cover all those issues. City Attorney Doyle noted that upon initial review he did not see with respect to the airport any federal or state legal issues that would limit the City’s ability to recover those costs, and stated there may be some distinction between investigative costs and emergency response costs so Staff needs to get clear definition on that and Staff would review the additional direction in the memorandum and determine how far the City can go in recovering those costs. Attorney Doyle requested that Council consider adding language providing for the recovery of attorney fees incurred in enforcement of the ordinances. Council Member Reed agreed to the additional amendments to his motion.

Council Member Chirco asked if the amendments pertain to the airport or have a broader scope and Mayor Gonzales clarified that the issue of fake emergencies and public nuisances added by the memorandum by Council Members Cortese and Campos would be applicable throughout the City. Council Member Chirco raised the issue of someone accidentally creating a security violation at the airport by getting lost and going through security doors and City Attorney Doyle stated the intent is to deal with purposeful or intentional acts that create a disturbance as opposed to some inadvertent mishap and Staff will need to address that potentiality of accidental occurrences in the ordinance. Vice Mayor Dando asked if the City currently has an ordinance that deals with some of these acts and one that most particularly deals with alarms that go off repeatedly, i.e., fire alarms, burglar alarms, etc., and asked if these provisions would be an addition to that ordinance or does that ordinance already cover these actions. City Attorney Doyle stated there is an ordinance that allows the City to cite through the Administrative Citations process for false alarms, whereby at the third false alarm within a 60 day period a graduated fine is imposed, beginning with $50.00, a fourth violation in the same period is $100.00, and a fifth is $250.00, and stated the proposed ordinance would be a separate entire section within the same chapter of the San José Municipal Code, and would cover intentional disturbances, bomb threats, breeches of security, those things that are somewhat different than a false alarm.

On a call for the question, the motion carried unanimously, the memorandum dated April 15, 2003, from Council Members Cortese and Campos which recommends: (1) Approval of the Airport Commission’s recommendation that Council adopt a civil action ordinance related to intentional disruption of the Airport Security Systems for the purpose of recovering the City’s costs in responding to such incidents, and (2) Directing Staff to develop a similar Citywide Cost Recovery Ordinance that allows the City to be reimbursed for costs associated with responding to public disturbances such as “fake emergencies’ and/or “public nuisances”, was approved, as amended by Council to include recovery of City Attorney fees and to distinguish between intentional and accidental events. Vote: 10-0-1-0. Absent: Chavez.

ECONOMIC & NEIGHBORHOOD DEVELOPMENT

4.4 Adoption of a resolution approving a change in the source of funding for the conditional grant of up to $4,804,900 to MACSA, or an affiliated entity, from the Extremely Low-Income Housing Reserve Fund (ELI), to the 20% Low- and Moderate-Income Housing Fund, for the development of Las Golondrinas, a 50-unit senior rental development to be made affordable to extremely low-income households, on a 1.31-acre site located on the southerly terminus of Kentucky Place, southerly of Alum Rock Avenue. CEQA: Negative Declaration, PDC 00-12-124. Council District 5. SNI Area: Mayfair. (Housing)

Documents Filed: Memorandum from Housing Director Leslye Corsiglia, dated March 24, 2003, recommending approval of change of funding for said conditional grant.

Discussion/Action: Upon motion by Council Member Campos, seconded by Council Member Chavez, and unanimously carried, Resolution No. 71494, entitled: “A Resolution of the Council of the City of San José (i) Approving a Change in Funding Source for up to $4,804,900 to Mexican American Community Services Agency, Inc., or Their Designated Limited Partnership for the Development of 50 Unit Rental Housing Project Affordable to Extremely Low Income Persons and Families, and (ii) Authorizing the Director of Housing to Negotiate and Execute all Necessary Documents Evidencing Such Loans on Behalf of the City”, was adopted. Vote: 10-0-1-0. Absent: Chavez.

4.5 PUBLIC HEARING and adoption of a resolution vacating a portion of the west side of Sixth Street between Martha and Bestor Streets and reserving a public service easement. CEQA: Negative Declaration, PDC98-10-078. Council District 3. SNI Area: Spartan/Keyes. (Public Works)

Documents Filed: Memorandum from Public Works Director Katy Allen, dated March 24, 2003, recommending adoption of said resolution.

Discussion/Action: Upon motion by Vice Mayor Dando, seconded by Council Member Yeager, and unanimously carried, Resolution No. 71495, entitled: “A Resolution of the Council of the City of San José Vacating a Portion of the West Side of Sixth Street and Reserving a Public Service Easement (PSE) Between Martha and Bestor Streets”, was adopted. Vote 10-0-1-0. Absent: Chavez.

RECREATION & CULTURAL SERVICES

5.2 (a) Accept this second quarter report summarizing the status of CDBG projects and recommending corrective actions.

(b) Approval of an extension of the funding term for six months, from June 30, 2003 to December 31, 2003, for the following projects:

(1) G13 Northside Community Center Expansion - Filipino-American Senior Opportunity Development Council, Inc.;

(2) F87 Disabled Housing Preservation – Housing for Independent People, Inc.,

(3) F89 Nursery Renovation Project – San José Day Nursery; and

(4) F90 Franklin-McKinley School District Child Care - Franklin-McKinley School District.

(c) Approval of an extension of the funding term for one year, from December 31, 2002 to December 31, 2003, for the following project:

(1) G43 Roosevelt Roller Hockey Rink Renovation project – Parks, Recreation and Neighborhood Services Department.

(d) Approval of the return of CDBG funds for the following project:

(1) F91 Zoe-27 South 11^th Street – Alliance for Community Care ($403,698).

(e) Adoption of amendments to the Appropriation Ordinance in the Community Development Block Grant Fund to do the following:

(1) Decrease the appropriation to Zoe-27^th South 11^th Street by $403,698.

(2) Increase the Ending Fund Balance by $403,698.

CEQA: Not a Project. (Parks, Recreation and Neighborhood Services)

Documents Filed: Memorandum from Parks, Recreation and Neighborhoods Services Director Sara L. Hensley and Budget Director Larry D. Lisenbee, dated April 3, 2003, recommending approval of the Community Development Block Grant (CDBG) Second Quarterly report for the FY 2002-2003 Program Year, and approval of said funding extensions, and adoption of said appropriation ordinance amendments of the said Community Development Block Grand Fund Projects.

Discussion/Action: Council Member Yeager, as Chair of the CDBG Steering Committee, read the following statement into the record: “The CDBG Steering Committee meeting approved a recommendation to the City Council extending the funding term for the MACSA Enrichment Center project to June 30, 2003, with these conditions; (1) the project should be bid in phases or using add alternatives to ensure that project budget can support if not all phases at least a phase or two of the entire project and (2) to include all necessary Americans with Disabilities Act (ADA) requirements, the project is recommended for additional funding of $39,979 to allow the project to proceed, and pertaining to the Goss Community Facility, the CDBG Steering Committee approved a recommendation to the City Council extending the funding term of the project to June 30, 2004 and the project received $2,010 in District 5 Construction and Conveyance tax funds and is now on track”. Council Member Yeager moved approval of those additions to the Staff recommendations.

City Attorney Doyle stated those items have not been placed on the agenda nor publicly noticed pursuant to the California Brown Act requirements, and will have to come back to the Council. Mayor Gonzales stated they can be put on the April 22, 2003 agenda, following referral to the Rules Committee. On motion by Council Member Yeager and seconded by Vice Mayor Dando, and carried unanimously, the second quarter CDBG report was accepted, funding was extended for the referenced projects for six months, funding was extended for one year for the Roosevelt Roller Hock Rink Renovation project, the return of CDBG funds for the Alliance for Community project, were approved, and Ordinance No. 26870, entitled: “An Ordinance of the City of San José Amending Ordinance No. 26674 to Appropriate Moneys in the Community Development Block Grant Fund for Various Projects; and Providing That This Ordinance Shall Become Effective Immediately Upon Adoption”, was adopted. Vote 9-0-2-0. Absent: Campos, Chavez.

5.3 Report on bids for Ramblewood Park Play Area Renovation and Restroom Project with the following recommendations:

(a) Find the apparent low bidder, Playgrounds Unlimited, not responsible for failure to timely perform park renovation construction contracts awarded during 2002; and

(b) Award the contract to the lowest responsible and responsive bidder, JFC Construction, Inc., in the amount of $270,068, and approval of a contingency in the amount of $13,500.

CEQA: Exempt, PP02-12-392. Council District 7. (Public Works)

(Deferred from 1/28/03 – Item 2.8 et al., and 4/8/03 – Item 2.3)

Documents Filed (1) Supplemental memoranda from Public Works Director Katy Allen, dated April 15, 2003 and April 14, 2003, providing supplemental information to attachment entitled Final Report on the Disqualification of M.A.K. Associates, Inc. dba Playgrounds Unlimited as General Contractor. (2) Memoranda from Public Works Director Katy Allen, dated April 4, 2003 and January 8, 2003, recommending award of said contract, with related contingency, to the lowest responsive bidder, JFC Construction Inc., and adoption of said appropriation ordinance amendments.

Discussion/Action: Public Works Director Allen reviewed the Staff recommendation to find Playgrounds Unlimited a non-responsible contractor and award the Ramblewood contract to the second low bidder, JFC Construction, Inc. Joe Mendes of Playgrounds Unlimited responded to the charge that his company is a non-responsible bidder, commenting they have done a lot of work for the City of San José and other cities, and have never had these types of problems before, and contrary to Staff’s conclusions, stated they have performed in a timely manner and with quality. The problem was due to a bad superintendent who created delays and stated he was told they were on schedule and things were running according the City’s request, and when he later found out they were not on schedule, he took over the projects and addressed them as quickly as possible. Mayor Gonzales thanked him for coming and expressed sympathy that he was the victim of an employee, however, the Council has to make a decision as to whom the contract will be awarded, and suggested discussing with the Public Works Department about how this can be resolved so that in future Mr. Mendes’ company can continue to bid on work and encouraged him to work with Staff to be able to bid on future City business.

In response to Council Member Williams’, Director Allen stated a delay of six weeks would be expected if the project were rebid. Council Member Williams stated that in the future he hopes there will be check points in place to help determine the accuracy of bids amounts, timeframes and contingency fund amounts in order to deliver projects on schedule and on budget. Upon motion by Council Member Gregory, seconded by Council Member Campos, and unanimously carried, the Staff recommendations were approved, and Council found the apparent low bidder, Playgrounds Unlimited, not responsible for failure to timely perform park renovation construction contracts awarded during 2002, and the award of said contract, with related contingency, to the lowest responsive bidder, JFC Construction, Inc., was approved and its execution authorized. Vote: 11-0-0-0.

ENVIRONMENTAL & UTILITY SERVICES

7.1 Authorize the City Manager to conduct a study of San José Municipal Water System rates and forward rate recommendations to the 2004-05 budget process. CEQA: Not a Project. (City Manager’s Office)

[Referred from 3/18/03 – Item 7.1 and deferred 4/1/03 – Item 7.4]

Documents Filed: None.

Discussion/Action: This item deferred to April 29, 2003.

7.2 (a) Report on Request for Proposal (RFP) and approval of an agreement with enfoTech & Consulting, Inc. (Lawrenceville, NJ) for the implementation of an Environmental Enforcement Data Management System for a term of April 15, 2003 through April 30, 2005, in an amount not to exceed $1,063,399.

(b) Adoption of a resolution authorizing the Director of Environmental Services to negotiate and execute change orders to the enfoTech agreement in an amount not to exceed $106,000.

CEQA: Not a Project. (General Services)

Documents Filed: (1) Memorandum from Director General Services Director, Jose Obregon, dated March 24, 2003, recommending adoption of said resolution. (2) Memorandum from Chairperson, Treatment Plant Advisory Committee Rodney J. Diridon, Jr., dated April 10, 2003, recommending approval of said agreement and adoption of resolution.

Discussion/Action: William J. Garbett spoke on the item. Council Member Williams questioned the contingency amount of 10 percent of the project. General Services Director Jose Obregon stated the contingency was set by the Evaluation Committee, there is no precedent established for the procurement of IT technology. He stated discussions were held with vendors as to what additional services might be identified as needed since this particular piece of software is intended to facilitate providers in meeting compliance with all the permit regulations, and any new permit regulations may mandate additional functionality be built into the software. Director Obregon stated Staff has definitive expectations of the particular vendor, the contingency is for unanticipated needs, but whether or not the contingency is expended will have to be determined.

Council Member Williams asked if the software purchase precludes the need for personnel, and Director Obregon stated the main benefit from the procurement of this particular software is to make Staff resources more effective and more efficient in the data collection process and more accurate both in field operations downloading into the database to generate more accurate reports. Responding to Council Member Williams’ inquiry about whether this is an enhancement to the present system, Director Obregon stated that verification of the need for this system followed an audit by the City Auditor of those operations and one of the recommendations was the need to become more efficient and more accurate in the data collection process, and this particular tool was identified as an element that could be utilized for that purpose. Council Member Williams asked what was the deciding factor in selecting enfoTech & Consulting Inc. as compared to Synertech Systems Corporation. Director Obregon stated two main points differentiated the recommended vendor from the second vendor, the recommended vendor has more direct experience in providing and implementing this particular type of software in an environmental or plant operations atmosphere, and the software being provided by the recommended vendor Bay software, is basically an off-the-shelf software, so the additional modules that will be implemented to augment the Bay software can be customized. Council Member Williams requested after the system is operational, that Staff report back to Council on how the system is working, and stated he would like to know what the improvements are to efficiencies once the system is implemented.

Council Member Cortese asked if Staff has the ability to sever the contract part way through if it is determined the product is not modeling out as imagined and asked what provisions are included to ensure the application is correct and to make adjustments if needed. Director Obregon stated Staff worked closely with the City Attorney’s office and the contract agreement set some very specific performance standards, and in most of these types of contracts, the City normally retains the option to pull out. He stated this particular contract will pay as deliverables accepted by the City and in this particular contract, 45 percent of the total cost will not be paid out until final acceptance of the overall implementation.

Upon motion by Council Member Williams, seconded by Council Member Chavez, the motion carried unanimously, the Staff recommendation was accepted and said agreement with enfoTech & Consulting, Inc., for implementation of an Environmental Enforcement Data Management System, was approved and its execution authorized, and Resolution No. 71496, entitled: “A Resolution of the Council of the City of San José Authorizing the Director of Environmental Services to Negotiate and Execute Change Orders to the Agreement With enfoTech & Consulting, Inc. In An Amount Not to Exceed $106,000”, was adopted, and Staff directed to report back on the effectiveness of the software system. Vote: 11-0-0-0.

AVIATION SERVICES

8.1 (a) Adoption of a resolution authorizing the City Manager to negotiate and execute the eighth amendment to the agreement with PB Aviation, Inc. for consulting services for the Airport Master Plan, increasing compensation by $14,000,000, from $34,840,000 to a total agreement amount not to exceed $48,840,000, and extending the term of the agreement from February 1, 2004 to December 1, 2005.

(b) Adoption of the following appropriation ordinance amendments in the Airport Revenue Bond Improvement Fund:

(1) Establish Elements of the Master Plan Studies appropriation in the amount of $1,882,000.

(2) Establish Central Plant Expansion appropriation in the amount of $128,000.

(3) Establish Maintenance Building SE (Bldg #1) appropriation in the amount of $94,000.

(4) Establish North Concourse Site Facility Relocations appropriation in the amount of $473,000.

(5) Establish Baggage Screening Phase II appropriation in the amount of $5,100.

(b) Adoption of the following appropriation ordinance amendments in the Airport Revenue Bond Improvement Fund:

(6) Establish Checkpoint Terminal A appropriation in the amount of $5,100.

(7) Establish Checkpoint Terminal C appropriation in the amount of $5,100.

(8) Establish Gate A1-C Relocation appropriation in the amount of $101,800.

(9) Establish North Concourse Building appropriation in the amount of $2,377,000.

(10) Decrease the Airport Security Improvement Reserve by $5,071,100.

CEQA: Resolution No. 67380, PP 03-03-083. (Airport/City Manager’s Office)

Documents Filed: None.

Discussion/Action: This item was deferred to April 22, 2003.

8.2 (a) Adoption of a resolution authorizing the City Manager to negotiate and execute the second amendment to the agreement with M. Arthur Gensler, Jr. & Associates (Gensler) for master architectural services, increasing compen-sation by $15,560,000, from $9,500,000, to a total agreement amount not to exceed $25,060,000, and extending the term of the agreement from July 4, 2003 to December 1, 2005.

(b) Adoption of the following appropriation ordinance amendments in the Airport Revenue Bond Improvement Fund:

(1) Increase the North Concourse Building appropriation in the amount of $7,800,000.

(2) Increase the Central Plant Expansion appropriation in the amount of $400,000.

(3) Increase the Baggage Screening Phase II appropriation in the amount of $500,000.

(4) Increase the Checkpoint Terminal A appropriation in the amount of $500,000.

(5) Increase the Checkpoint Terminal C appropriation in the amount of $500,000.

(6) Increase the Gate A1-C Relocation appropriation in the amount of $200,000.

(7) Increase the Elements of the Master Plan Studies appropriation in the amount of $270,000.

(8) Decrease the Airport Security Improvement Reserve by $10,170,000.

CEQA: Resolution No. 67380, PP 03-03-085. (Airport/City Manager’s Office)

Documents Filed: None.

Discussion/Action: This item deferred to April 22, 2003.

PUBLIC SAFETY SERVICES

9.1 (a) Adoption of a resolution to accept SB 720 funds from the County of Santa Clara in the amount of $1,300,000; and

(b) Adoption of amendments to the Annual Appropriation Ordinance and Funding Sources Resolution in the General Fund for the Fiscal Year 2002-03 as follows:

(1) Establish a City-wide Appropriation for an Automated Fingerprint Identification System to the Police Department in the amount of $1,300,000; and

(2) Increase the estimate for Revenue from Local Agencies by $1,300,000.

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

Documents Filed: Memorandum from Police Chief William M. Lansdowne and Budget Director Larry D. Lisenbee, dated March 24, 2003, recommending adoption of said resolutions and said appropriation ordinance.

Discussion/Action: Upon motion by Council Member Chavez, seconded by Council Member Cortese, and carried unanimously, and Resolution No. 71497, entitled: “A Resolution of the Council of the City of San José Accepting SB 720 Funds From the County of Santa Clara in the Amount of $1,300,000 Related to the purchase of Software and Hardware Upgrades for the Police Department’s Automated Fingerprint Identification System (AFIS)”, and Resolution No. 71498, 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 General Fund”, and Ordinance No. 26871, entitled: “An Ordinance of the City of San José Amending Ordinance No. 26674 to Appropriate Moneys in the General Fund for Automated Fingerprint Identification System; and Providing That This Ordinance Shall Become Effective Immediately Upon Adoption”, were adopted. Vote: 11-0-0-0.

JOINT COUNCIL/REDEVELOPMENT AGENCY

The Redevelopment Agency Board convened at 2:30 p.m. to consider item 10.1 in a Joint Session.

10.1 (a) Authorizing the Director of Housing and the Executive Director to negotiate and execute an Option Agreement for the purchase of the Vintage Tower Apartments, a 59-unit mid-rise apartment building located at 235 East Santa Clara Street, for $5,200,000 by First United Methodist Church Tower Properties, L.P., or an affiliated entity, from the City of San José.

(b) Approving a funding commitment for a loan of up to $2,225,000 to First United Methodist Church Tower Properties, L.P., or its designated affiliate, for the acquisition and rehabilitation of the property.

CEQA: Exempt, PP03-03-090. Council District 3. (Housing)

Documents Filed: (1) Memorandum from City Manager Del Borgsdorf and Redevelopment Agency Executive Director Susan Shick, dated March 24, 2003, recommending approval of said resolution. (2) Affidavit of Posting, posting date of April 9, 2003 for notice of public hearing date of April 25, 2003, submitted by City Clerk Patricia O’Hearn.

Discussion/Action: Willaim J. Garbett spoke on the item. Council Member Chavez moved approval of Staff recommendation Nos. 1 and 2 and requested that Staff come back to the full Council or Redevelopment Agency Board, whichever is more appropriate to outline the strategy that will be used to work with the current retail businesses that are in the building, and she would like an update which may be more appropriate through the Redevelopment Agency, regarding work with the Vietnamese Chamber of Commerce. She stated there is confusion about what work they were asked to do, some of which relates to this issue, and she would like to know the status of any contracts with them, work that they have done, and work they have been asked to do and what the status of all those issues are. Council Member Cortese seconded the motion. Housing Director Leslye Corsiglia stated the Staff report suggests that the applicant would be submitting an application for the second round of funding, however, unfortunately in the last several days Staff has determined that not all of the certifications that are required for California Debt Limit Allocation Committee (CDLAC) have been received and Staff still wants to go ahead with approving this with all of the terms that are in the report, but the application would not be expected to be submitted until July 2003. Council Member Williams asks how other businesses and vendors would be impacted by the project. Council Member Chavez stated there is some confusion among Staff over whose roles and responsibilities it is to work with those businesses on an ongoing basis, and she asked this issue to come back within one month so Staff is not speculating, but actually has a plan to work with those businesses.

On a call for the question, the motion carried unanimously, and the Staff recommen-dations were accepted and Resolution No. 71499, entitled: “A Resolution of the Council of the City of San José (1) Authorizing the Director of Housing to Execute an Option Agreement With First United Methodist Church Tower Properties, LP for Vintage Tower Apartments; (2) Approving a Funding Commitment of up to $2,225,000 for the Acquisition and Rehabilitation of the Apartments and (3) Authorizing the Director of Housing to Negotiate and Execute All Documents Necessary to Carry Out the Purposes of This Resolution on Behalf of the City”, and Redevelopment Agency Resolution No. 5401, were adopted, and Staff directed to report back with strategy for working with the current retail businesses in the building, and on the status of contracts with the Vietnamese Chamber of Commerce. Vote: 11-0-0-0.

The Redevelopment Agency Board portion of the meeting adjourned at 2:36 p.m.

Notice of City Engineer’s Pending Decision on Final Maps

In accordance with Sec. 19.16.140d of the San José 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
9482	Payne Avenue and Southwood SE/c	1	Standard Pacific Homes	15 units	SFRD	Approve

Open Forum

Ross Signerino spoke on a societal issue.

RECESS/RECONVENE

Following Open Forum, the City Council recessed at 2:38 p.m. to a Joint meeting with the San José Redevelopment Agency and reconvened at 7:03 p.m., Council Chambers, City Hall.

Present: Council Members - Campos, Chavez, Chirco, Cortese, Dando, Gregory, LeZotte, Reed, Williams, Yeager; Gonzales.

Absent: Council Members - None.

City Clerk, Patricia L. O’Hearn, read the requests for continuances of applications and other actions as recommended. Upon motion by Vice Mayor Dando, seconded by Council Member Chavez and unanimously carried, the below noted continuances were granted. Vote: 11-0-0-0.

PUBLIC HEARINGS

11.1 PUBLIC HEARING ON PLANNED DEVELOPMENT REZONING of the property located at the southeast corner of South Winchester Boulevard and Neal Avenue (890 S. Winchester Blvd.), from CN Neighborhood Commercial District to A(PD) Planned Development Zoning District, to allow single-family attached residential uses (21 townhomes) on a 1.1 gross acre site. (Delta I LLC, Owner/Developer). CEQA: Negative Declaration. Director of Planning, Building and Code Enforcement and Planning Commission recommend approval (6-0-1).

PDC 02-071- District 6

(Continued from 1/21/03 – Item 11.2 et al., and 4/1/03 – Item 11.2)

Documents Filed: None.

Discussion/Action: Item continued to May 6, 2003.

11.2 PUBLIC HEARING ON PLANNED DEVELOPMENT REZONING located at/on the west side of South 11^th Street, approximately 140 feet north of Margaret Street (671 S. 11^th Street), from R-M Multiple Residence District to A(PD) Planned Development Zoning District, to allow the demolition of an existing single-family residence and construction of three townhomes on a 0.14 gross acre site. (Raymond Ruiz, Owner/Developer). CEQA: Exempt.

PDC 00-115 - District 3

(Continued from 3/18/03 – Item 11.9)

Documents Filed: None.

Discussion/Action: Item continued to May 6, 2003.

CEREMONIAL ITEM

1.1 Presentation of a proclamation recognizing Black April Remembrance Day 2003 (Reed) (Rules Committee referral 4/9/03)

Documents Filed: None.

Discussion/Action: Mayor Gonzales was joined at the podium by Council Members Reed and Gregory for proclamation of April 30, 2002, as Black April Remembrance Day 2003, memorializing the Fall of Saigon and recognizing the Vietnamese flag as the “Flag of Free Vietnamese People”; the Vietnamese community was represented by several hundreds of San José residents who presented the Vietnamese flag in parade fashion in celebration of the City of San José as their new home.

ECONOMIC & NEIGHBORHOOD DEVELOPMENT

4.3 Public Hearing on the 2003-2004 Draft Consolidated Plan Annual Action Plan, including FY 2003-2004 proposed recommendations for the Community Development Block Grant (CDBG) Program, the HOME Investment Partnership Program (HOME), the Housing Opportunities for People with HIV/AIDS (HOPWA) Program, and the Emergency Shelter Grant (ESG) Program. CEQA: Not a Project. (Housing/Parks, Recreation and Neighborhood Services)

Documents Filed: (1) Memorandum from Council Member Cortese, dated April 15, 2003, requesting Council include language with the approval of the 2003-04 Federal Consolidated Housing Plan which would preserve the opportunity to incorporate by reference San José’s ability to acquire and develop vacant public lands for housing for public agency employees as such property is declared surplus. (2) Supplemental memorandum from Housing Director Leslye Corsiglia, dated April 8, 2003, submitting draft FY 2003-2004 Annual Action Plan for the five-year City of San José FY 2000-2005 Consolidated Plan not completed at the time Council received its March 25, 2003 memorandum. (3) Memorandum from Housing Director Leslye Corsiglia and Parks, Recreation and Neighborhoods Services Director Sara L. Hensley, dated March 31, 2003, recommending approval of public hearing for the Consolidated Plan Annual Action Plan for FY 2003-2004.

Discussion/Action: Mayor Gonzales opened the public hearing on the Draft FY 2003-2004 Consolidated Annual Action Plan (Conplan), a federally mandated document that outlines the City’s plan for addressing its housing and community development needs and is a prerequisite for federal housing funding. He stated as part of the federal process, the City is currently in the 30 day public reviewing and comment period for the City of San José’s Consolidated Plan 2003-2004 Annual Action Plan, the draft Conplan has been available for public review since April 7, 2003, and on May 6, 2003, the City Council will vote to adopt the Consolidated Annual Action Plan. Housing Director Leslye Corsiglia and Parks, Recreation and Neighborhoods Services Director Sara Hensley gave the Staff presentation on the FY2003-2004 plan. Housing Director Corsiglia explained that Housing and Parks, Recreation and Neighborhoods Services (PRNS) work together to develop the Consolidated Plan which is required by the Federal Department of Housing and Urban Development (HUD) as a condition of all of the City’s federal housing funding, of which the City receives more than $18 million each year from a variety of different programs and will receive $250,000 more this year than last. She stated the Housing Advisory Commission has held three public hearings so far to collect comments regarding the needs of the community, additionally the Community Development Block Grant (CDBG) Committee has met three times in January and February 2003 to hear the community’s needs and to hear from those who have submitted applications, and Council will hear this issue tonight and after the 30 day review period ends, on May 6, 2003. Any changes will be incorporated into the draft plan which will be s