HomeMy WebLinkAboutCC Minutes 1999-01-04SRCC MINUTES (Regular) 1/4/99 Page 1
IN THE COUNCIL CHAMBER OF THE CITY OF SAN RAFAEL, MONDAY, JANUARY 4, 1999 AT
8:00 PM
Regular Meeting:
San Rafael City Council
Present: Albert J. Boro, Mayor
Paul M. Cohen,
Councilmember
Barbara Heller, Councilmember
Cyr N. Miller, Councilmember
Gary O. Phillips, Councilmember
Absent: None
Also Present: Rod Gould, City Manager
Gary T. Ragghianti, City Attorney
Jeanne M. Leoncini, City Clerk
CLOSED SESSION - 7:00 PM:
None
ORAL COMMUNICATIONS OF AN URGENCY NATURE:
PM
None.
CONSENT CALENDAR:
8:40
Councilmember Phillips moved and Councilmember Cohen seconded, to approve the
following Consent Calendar items:
ITEM RECOMMENDED ACTION
1. Approval of Minutes of Special and Regular Minutes approved as
submitted.
Meetings of Monday, December 21, 1998 (CC)
3. Monthly Investment Report (CM) - File 8-18 x 8-9 Accepted Monthly
Investment
Report for month ending
November, 1998, as
presented.
AYES: COUNCILMEMBERS: Cohen, Heller, Miller, Phillips & Mayor Boro
NOES: COUNCILMEMBERS: None
ABSENT: COUNCILMEMBERS: None
The following item was removed from the Agenda for further discussion:
2. LEASE AGREEMENT WITH MACERICH FOR CITY HALL AT THE MALL (CM) - File 2-9-21
x 247
Mayor Boro thanked Councilmember Heller for her leadership in making this
project happen. He directed staff to prepare a Resolution of Appreciation
for Council to present to Macerich, stating they were making a great
community contribution in providing the operating and construction costs.
Councilmember Heller moved and Councilmember Phillips seconded, to adopt
the Resolution authorizing the City to enter into a Lease Agreement with
Macerich Company for City Hall at the Mall.
RESOLUTION NO. 10349 - RESOLUTION AUTHORIZING THE SIGNING OF A
SPECIALTY LEASE AGREEMENT WITH NORTHGATE MALL
ASSOCIATES (From February 1, 1999 through January 31,
2000).
AYES: COUNCILMEMBERS: Cohen, Heller, Miller, Phillips & Mayor Boro
NOES: COUNCILMEMBERS: None
ABSENT: COUNCILMEMBERS: None
OLD BUSINESS:
4. REPORT RE: DRINKING ON PRIVATE PROPERTY (CA) - File 9-3-16 x 9-3-30 x 13-8
Assistant City Attorney Gus Guinan reported Councilmember Miller had asked
the City Attorney's office to review the City's ability to regulate alcohol
consumption on private property. He stated three basic issues presented
themselves during his review of this issue. First, the regulation of
possession versus the regulation of consumption of alcohol; second, the
validity of the current City Ordinances regulating the use and consumption
of alcohol; and third, the Constitutional restrictions on what regulations
the City can enact for consumption on private property. Mr. Guinan
reported one thing was clear; cities cannot regulate possession or
SRCC MINUTES (Regular) 1/4/99 Page 1
SRCC MINUTES (Regular) 1/4/99 Page 2
intoxication, explaining the manufacture, sale, purchase, possession and
transportation of alcohol is regulated solely by the State, under the State
Constitution.
Mr. Guinan stated intoxication had been criminalized by the State, in such
a comprehensive scheme that it was preempted, and local agencies cannot
regulate intoxication. He noted there were two exceptions with regard to
the City's inability to regulate possession: first, the City can regulate
possession of an open container of alcohol in its parks if it enacts an
Ordinance; and second, the City can regulate the possession of an open
container of alcohol in or about the premises of a retail liquor store, as
long as an Ordinance has been enacted by the City, and the premises have
been posted. Mr. Guinan reported one area where the City was left with its
ability to regulate uniformly, in all aspects, was the area of consumption
of alcohol. He explained this was a matter of municipal concern, noting
the City could regulate, and had in its Ordinances, the consumption of
alcohol in any public place, street, highway, park, roadway, alley, and
public parking lot.
Mr. Guinan stated the current City regulations had some problems, referring
specifically to SRMC 8.12.030, which makes it criminal and unlawful for a
person to be intoxicated in their own house, noting at one time this was
uniform in most cities throughout the State. He reported approximately
twenty years ago a similar Ordinance of the City of Los Angeles was found
unconstitutional, and he believed that regardless of what the City decides
to do, this section should be repealed.
Mr. Guinan reported he had prepared a draft Ordinance, which was
comprehensive in local regulation within the confines of the City's ability
to regulate possession, as well as consumption of alcohol. He pointed out
this was a rough draft being presented to Council for discussion, noting
Council could delete portions they did not feel were appropriate. Mr.
Guinan stated the draft Ordinance was designed to encompass the full range
of permissible regulation, noting it outlawed the possession of alcohol in
City parks and adjacent public areas, and also in or about liquor stores
and adjoining parking lots and sidewalks. It also outlawed the consumption
of alcohol in public places, streets, roadways, sidewalks, playgrounds, and
parks, as well as on private property, specifically the parking lots of
commercial businesses, and residential buildings of three or more units, as
long as those areas of the parking lots are posted.
Mr. Guinan noted there had been some discussion about adding additional
areas, addressing some apartment complexes having landscaped areas between
the buildings and the street. He stated the Police Department had
indicated that at times there are problems with persons congregating on the
sidewalk with open containers, and when law enforcement officials arrive,
they step onto the private property, noting drinking or having possession
of an open container at that location would not be prohibited. Mr. Guinan
stated the City could add language to cover that, noting that as long as
those areas are open and in public view, he believed it would be
appropriate and enforceable to do so. Mr. Guinan reported the listing
requirement of the draft Ordinance ensured that the property owner was
aware of, and consented to, the enforcement by City Police of the
consumption of alcohol on his or her premises, noting this, in effect, gave
the owner's consent to come onto the property to enforce the Ordinance.
Mr. Guinan stated he had asked both the Police Department and Community
Services to review the draft Ordinance, and in speaking with Community
Services Director Carlene McCart, her primary concern had been that the way
the Ordinance is currently written, it appeared that for someone to consume
alcohol in a City park, they would have to go to the State Alcoholic
Beverage Control Board to obtain a license. Mr. Guinan stated that had not
been his intent, noting the Ordinance stated, "as otherwise required" by
State law. He pointed out that if a family was going to a park, and it was
otherwise permitted, then there would be no ABC (Alcoholic Beverage
Control) requirement. Mr. Guinan stated he would change the language of
the Ordinance to make certain that correction was made. Mr. Guinan
reported that in speaking earlier with Police Chief Cam Sanchez, he had
been pleased with the general intent and purpose of the Ordinance.
Mr. Guinan stated one area that had not been addressed in the draft
Ordinance concerned the details of the signage for posting the various
areas where consumption of alcohol on private property would be prohibited,
addressing such areas as the specific wording, type size, who would produce
the sign, whether the City would be producing a uniform sign and selling it
to a property owner, or if the property owners would be following some sort
of uniform design and posting it themselves, and whether there should be
different languages posted in various areas of the community where
SRCC MINUTES (Regular) 1/4/99 Page 2
SRCC MINUTES (Regular) 1/4/99 Page 3
different languages might be spoken.
Mr. Guinan reported he had also contacted several of the other cities whose
Ordinances he had surveyed. In speaking with the Attorneys for the City of
Chico, they were not aware of any problems with the enforcement of their
provision of no consumption on private commercial parking lots and
residential parking lots. He noted their residential parking lot
prohibition was for two or more units; however, he stated he had increased
that to three or more units, to avoid the problem of "second units". Mr.
Guinan reported he had also spoken with the City Attorney's office in
Oakland, noting they primarily use the section of the law prohibiting
consumption of alcohol on or about the premises of the liquor store, as
they have found that to be very effective, and their Police Department uses
it routinely. He stated their office had been unsure as to whether the
section of Oakland's Ordinance dealing with private property, which
addresses a "fifty -foot, in plain view, adjacent to public property"
prohibition, had ever been enforced or not. Mr. Guinan reported the Santa
Rosa Ordinance, which was, by far, the most broadly worded Ordinance
prohibiting drinking on private property, was withdrawn and not enacted.
He stated it was unclear exactly why it was not enacted, but noted it
appeared some members of their city staff felt that particular Ordinance
would not be effective, and would be discriminatory to certain segments of
the community. Mr. Guinan stated that in reviewing Santa Rosa's Ordinance,
he found the language to be very broad, and he had some concern about that,
himself.
Councilmember Heller pointed out the Ordinance stated violations would be
considered infractions, noting that was a very low classification. She
asked what the penalty would be for an infraction, and whether the
violation could be classified as a higher crime, such as a misdemeanor?
Mr. Guinan explained that in the two areas where the State had given cities
the authority to regulate "possession", as opposed to "consumption", State
legislation specifically authorized that penalty, and he was concerned that
attempting to change that would likely create legal problems. Referring
specifically to what the fine would be, Mr. Guinan reported that under San
Rafael's City Charter, the maximum fine for an infraction was $500, and
there would be no incarceration consequence. Ms. Heller wondered whether
it was worth it to impose a fine of $500, which perhaps the City would
never actually collect. She asked if service stations were included,
noting she had not seen that specified, but pointed out liquor was sold at
service stations. Mr. Guinan stated service stations were unique,
explaining their license to sell alcohol was controlled by the ABC, and the
zoning regulations were controlled by the City, with the exception that the
City could not prohibit the sale of beer or wine at service stations. He
pointed out that even this had an exception, noting if there was an undue
concentration, the request would come before Council for a Certificate of
Public Convenience. Ms. Heller asked if people could purchase liquor at a
service station and consume it on the premises? Mr. Guinan stated they
could not, noting that under this Ordinance, he would interpret that
regulation to mean that if there was a service station, and it was posted,
then any drinking on the premises would be prohibited under this Ordinance.
Ms. Heller asked if that was the case only if the service station asked
the City to enforce this provision of the Ordinance? Mr. Guinan stated it
would be considered a "retail package/off-sale license", and as such, would
be controlled by that Section of 647-E where, as it is currently written in
San Rafael's Ordinance, the City requires all of the liquor stores to post,
and they do not have the option of whether or not to post. He noted he had
taken that portion of the Ordinance directly from the City of Oakland's
Ordinance, as he felt it was helpful; however, he acknowledged that in our
community it might not fit.
Councilmember Phillips noted Community Services Director McCart's concerns
regarding Section 8.15.030, with regard to small groups in the parks, and
their necessity to obtain a permit from the ABC. He asked Mr. Guinan to
clarify whether or not that was required. Mr. Guinan stated he was not
certain at what level ABC required groups to obtain a temporary permit. He
explained his intent had been to make certain the burden was on whatever
group was consuming or possessing alcohol in the park, and if State
regulations did require the obtaining of some type of temporary permit or
license, the group would be responsible for obtaining that. He noted the
City would become an enforcer of ABC regulations. Mr. Phillips asked if
this was a change? Mr. Guinan stated he had tried to incorporate other
sections currently on the City's books into a new general scheme of alcohol
regulation. He pointed out there currently was a section that dealt with
alcohol possession and consumption in City parks, noting he had attempted
to take that portion, from where it was in a separate section, and
incorporate it here. Mr. Guinan noted that particular section did not make
reference to ABC regulations; however, he explained he had done this to
SRCC MINUTES (Regular) 1/4/99 Page 3
SRCC MINUTES (Regular) 1/4/99 Page 4
make certain that any group at a City park would be on notice that they
were required to obtain whatever permit they might otherwise be required to
get.
Mr. Phillips referred to the Terra Linda Recreation Center, and the Orca
Swim Club, noting they used to have dinners and parties in the Recreation
Center, and would obtain permits from the ABC to sell beer and wine. He
stated that while this had not been difficult to do, people needed to be
aware of the requirement. Mr. Guinan stated he believed any group that
currently reserves space at a City park, whether it be outside or inside,
was advised by City staff that they should check with the ABC to obtain a
permit, should they need one, for whatever event or group they were going
to have. Mr. Phillps asked about the family that is going to have a
barbecue and brings beer to the park, and how that would be handled? Mr.
Guinan stated, technically, any consumption of alcohol in City parks
requires the authorization of the Director of Community Services. Mr.
Phillips asked if this was being enforced? Police Chief Cam Sanchez stated
the Police Department was enforcing this, noting drinking in public, on
public property, was a citable offense. Chief Sanchez pointed out this was
a "quality of life" issue, noting there were a lot of people who wanted to
enjoy the City parks and their neighborhoods, but were observing things
they believed to be unlawful, such as drinking in public.
Chief Sanchez felt the education factor was important, because people do
not know the City does not currently have an Ordinance that prevents
drinking on private property. He pointed out this was a big issue, noting
the Police Officers respond to a lot of calls on private property where,
many times, the consumption of alcohol has actually been the initiator of
the call. He stated they have been able to deal with the obviously
unlawful acts, but there was also the problem of alcohol, and there was
nothing they could do about that, which really tied the Police Department's
hands. Chief Sanchez stated the big picture, and a positive one, was that
this Ordinance would give his Police Officers the opportunity to take some
of these things a step further and begin to regulate this problem, by
jotting things down, and having a record of how many times the Police
Officers go to a specific address, driveway, or market. Then, if the
Police Department does call on ABC, they will have some "meat" for them to
begin to enforce their ABC regulations.
Chief Sanchez noted that, generally, when people are drinking in public,
the Police Department does enforce the regulation. Councilmember Phillips
wondered, when it was just a casual get-together, if many of the people
were aware of the permit requirement, noting he suspected this was not
generally enforced. Chief Sanchez acknowledged it was not. Mr. Phillips
asked if this would have any effect on the regulation, and whether it would
strengthen or weaken it? Mr. Guinan stated it would not change the current
state of what is on the books, noting if all references to ABC were to be
stricken from the draft Ordinance, we would still be left with the permit
requirement from the appropriate City department. Mr. Guinan stated that
was the current situation, at least regarding the parks, and whether for a
lone person, three people, or twenty people, any loosely organized group
that comes into the park and is going to consume alcohol is supposed to
have the written permission of the Community Services Director. However,
he stated he did not know whether that was actually enforced or not, noting
in the five years he had been with the City, he had never prosecuted such a
complaint. He suspected this requirement was used appropriately in times
where it was used as a tool to ensure the public peace was being preserved.
Chief Sanchez stated it varied from situation to situation, but usually
the Police Officers simply warn people that they are in violation, and when
they return, the situation has been taken care of. However, if the
Officers return and the violation still exists, then they will cite them,
and if they do not pay the citation, it goes to warrant, giving the Police
Department the opportunity to re -contact the person. As an example, in a
case when the Police Department knows the violators are young persons, and
know that they and their parents will have to go to court, then it becomes
a "big picture" issue, because it is a big tool for the Police Department
to have an Ordinance that gives them an opportunity for future contacts and
statistics.
Chief Sanchez reported that in speaking with the Patrol Officers, the
Department's biggest issue during the past five or six months was the
consumption of alcohol by young people, noting their biggest concern right
now was the City's young people who are under 21 years of age, and are
consuming alcohol. Chief Sanchez reported the Police Department currently
had a policy that when the Officers go to a keg party, or an incident out
in the hills where kids under 21 years old are drinking within the City
limits, the Officers will arrest or cite adult drinkers on public property.
As an example of what the Police Department has been doing for the past
SRCC MINUTES (Regular) 1/4/99 Page 4
SRCC MINUTES (Regular) 1/4/99 Page 5
year, if there is a group of thirty young people at Boyd Park, all under 21
years of age, the Officers will cite some of them, take some of the young
people home, and some will go to jail. However, explaining the other side
of what the Police Department does, he reported the Officers take the names
of all the young people who were involved, including those who were not
arrested or cited, and the Department sends a letter to the parents of
everyone involved, telling the parents the Police Department wanted to
inform them that their young person was at the location, and while they
were not in trouble, the Department was concerned about young people under
the age of 21 consuming alcoholic beverages, and just wanted to let them
know what their young person had been doing. He stated parents had been
writing and calling, thanking the Department for letting them know what had
been going on.
Councilmember Phillips asked if there was anything in the proposed
Ordinance that the Councilmembers should be made aware of, from the Police
Department's perspective? Chief Sanchez stated he would like to get
together with Assistant City Attorney Guinan, and perhaps expand what the
Police Department's role could be; however, he felt this was an excellent
report, and believed the City should do what it can to provide more tools
to enforce those issues the community has told us are quality of life
issues for them.
Mayor Boro stated he had thought that if kids were cited for drinking,
which was against the law, the Police Department detained them and called
and asked their parents to come and pick them up. Chief Sanchez stated the
Department does still do that, explaining the Officers have been calling
the parents from the location, on their cell phones, and telling the
parents they will wait for them to come to the location; or, in other
instances, they will bring the young person to the Police Station, and make
the calls to the parents from the Police Department. However, he stated
the Police Department felt it had an obligation concerning those young
persons who are not cited, to contact the parents, and letting them know
what the young person is up to.
Councilmember Miller asked Mr. Guinan to reiterate the full protection of
San Rafael's citizens under the Fourth Amendment, as it pertains to this
piece of legislation. Mr. Guinan stated the Ordinance the City was going
to repeal, regardless of what else is done, violates the Fourth Amendment
of the United States Constitution, as well as the State's Constitutional
Right to Privacy, under Article I, Section I. On the other hand, he
pointed out there were a lot of activities that are prohibited, which are
on private property, but within public view; therefore, they could be
enforced without violating either the Right to Privacy, or the right under
the Fourth Amendment for a person to be secure in their person, property,
or abode. Mr. Guinan felt the yardstick to apply was, "What is the
reasonable Expectation of Privacy of the person in the location they are
in". He noted that in the private parking lot of a twenty -unit residential
complex, there probably was not as much reasonable Expectation to Privacy
as there would be in one of the apartments; therefore, as he interpreted
these cases, there was no specific case concerning the consumption of
alcohol being prohibited on private parking lots, but he believed the cases
he reviewed gave the City the authority to do so; and, based on other
cities having enacted the regulation to do so, he believed San Rafael could
do it without violating either the Constitution of the State of California,
or that of the United States.
Councilmember Miller stated when this issue first came to his attention, it
was in terms of Community Policing, and it involved the matter of a store
owner, who had an overview of his parking lot, who was not able to contain
or control those who were drinking in his parking lot. He noted that when
the store owner would call for Police assistance, the Officers quite
rightly would tell him that since they were on private property, the Police
Department could not do anything, although the store owner could. However,
that would involve the store owner leaving his cash register, walking over
and putting himself in jeopardy, and making a citizens arrest, and the
store owner did not believe that was the best advice for anyone to take.
Mr. Miller reported the store owner had stated he was not interested in
hassling people or arresting anyone, he wanted only for them to be cited,
and to be able to ask them to move out. Mr. Miller stated he was
interested in how one would go about enforcing such a regulation, and asked
Chief Sanchez for his understanding of how this would be enforced. Chief
Sanchez stated part of it would be similar to what was done in his prior
city, where this had also an issue, and where they, too, had not had an
Ordinance. He noted they brought all the licensees, the owners of the
stores and the markets, to meetings with ABC and Police Department
personnel, which he stated was something he would like to do in San Rafael,
much like the Department pro -actively did when they spoke with all the bank
SRCC MINUTES (Regular) 1/4/99 Page 5
SRCC MINUTES (Regular) 1/4/99 Page 6
managers about the robberies in San Rafael. Chief Sanchez believed it
would take a partnership to allow the business owners to feel safe, and
give the Police Department permission to deal with incidents on their
property without having to be told or asked in front of the "bad guys". He
stated that was part of the process, to bring people in and educate them,
letting them know their obligation was met by giving the Police Department
permission to deal with things on their property, without the owners having
to ask. He believed that would help the Police Department with
enforcement, noting if the Police Officers knew the Ordinance was there,
and they had blanket authority to go onto private property to deal with the
issues that grow into criminal acts, that would be part of the solution.
Councilmember Miller believed correct signage would be a key factor, and
Chief Sanchez agreed the signage would be important, as would educating the
licensees. He noted the Police Department would not place them in any
jeopardy, and had already told them what the rules would be, what the
Police Department's role would be, and what their roles would be, so the
Police Department will be able to enforce the Ordinance much more easily.
Councilmember Miller referred to situations where people were drinking on
the sidewalk, and when the Police come, they step into the yard area. He
noted that in one recent situation that was cured by the installation of a
picket fence, so those who were drinking were not stepping back into the
yard. He asked if Chief Sanchez felt it was necessary to keep that
concept, or add it to the Ordinance? Chief Sanchez stated he did not
believe it was necessary.
Councilmember Cohen stated he would like staff to review the language, and
be able to assure Council that the language, as drafted, would include gas
stations, noting the language stated, "...all retail package, off -sale
licensees are required to post". He asked staff to make sure that language
is broad enough to include not only liquor stores, but also gas stations
that sell beer. In addition, he stated he agreed with Ms. McCart's comment
that the City should not increase the requirement on public parks, taking
it to the level of requiring everyone to get a license from ABC.
Similarly, Mr. Cohen stated he had a question about the provision related
to private property, noting that in reviewing the summaries of other
cities' regulations, it appeared the only one that seemed to be directly
related to what we were proposing to do, other than the Santa Rosa proposal
which was withdrawn, was the City of Chico, which referenced both private
parking lots for commercial purposes, and private parking lots for two or
more residential units, and included an exemption relative to the consent
of the owner, which Mr. Cohen assumed meant that if the owner of the
residential complex had given someone permission to serve alcohol in the
parking lot, then they could do so. Mr. Guinan stated that was correct.
Councilmember Cohen stated the City appeared to have that same exemption,
yet on Page 4 of the draft Ordinance, we also require written permission of
the owner, a license from the ABC, and a permit from the City. Mr. Cohen
felt requiring a license from the ABC for any event that might be held in
those parking lots was likely going further than we needed to go. Mr.
Guinan stated he would delete that requirement. Mr. Cohen was not certain
a permit from the City would always be required for such an event, if
someone wanted to have a party on their property. Mr. Guinan stated he did
not know that it would be, although it might be; therefore, he would change
the wording to state, "...to the extent that any such permit was required",
putting the onus on the person, in effect telling them that just because
the City was putting such a regulation in place did not mean they could go
and have a big party if there were other requirements that must be obtained
first.
Following up on the language concerning posting on private parking areas,
Mr. Cohen pointed out Mr. Guinan had noted the possible Constitutional
issues about the vagueness of some of the language we currently have. He
asked what "open to public view" meant? Mr. Guinan stated it would
certainly mean it was not inside the covered carport areas that are off of
the parking lots. Mr. Cohen noted that instead of drinking on the sidewalk
and stepping through the hedge onto the private parking lot, a person could
drink in the parking lot, which is posted, and then when a Police Officer
rolls up, the person could step into the carport, so he is between the
walls and, therefore, not "open to public view". Then when the Officer
drives away, the person could step back out into public view. Mr. Guinan
felt it would appear one could probably state the carports are open to
public view. He noted staff could come up with a definition of what "open
to public view" means, perhaps identifying "all of the parking area in a
complex". Mr. Guinan reported that in trying to determine what area the
City was going to post, he noted the City of Oakland's Ordinance states
"fifty feet onto private property, adjacent to publicly owned property (for
example, streets and sidewalks), and open to public view". Therefore, they
SRCC MINUTES (Regular) 1/4/99 Page 6
SRCC MINUTES (Regular) 1/4/99 Page 7
have a distance, and in effect, if there were a line painted fifty feet
into that parking lot, even if it were still open to public view, if
someone stepped over that line, he could not be cited.
Councilmember Cohen pointed out this was a "quality of life issue", and
noted it may very well be a quality of life issue for other residents of
those residential units, who might very well be on the other side of the
fifty -foot line. Mr. Cohen felt this area needed more work, asking Mr.
Guinan to take another look at whether or not the City should use the
phrase, "open to public view", or whether there might be another way to get
at the definition. Mr. Cohen asked whether staff had looked at the
language used by the City of Chico? Mr. Guinan stated he had. Mr. Cohen
asked what their experience had been, how long their Ordinance had been in
place, and whether there have been any challenges to their Ordinance. Mr.
Guinan reported there have been no challenges to Chico's Ordinance, noting
their City Attorney stated he was not aware of any enforcement issues that
had risen to a level where he had to become involved; however, he did not
have any accurate figures as to whether it had been used on a regular
basis, or whether it had been an effective tool. Mr. Guinan stated the
City of Chico had been using their posting requirement around liquor
stores, as their primary enforcement tool.
Mayor Boro stated he had a basic issue he wanted Mr. Guinan to pursue for
Council, addressing how to get to the cause, rather than dealing with the
effect. Mayor Boro noted that when the Council went after the issue of
smoking in San Rafael, they did two things; they banned vending machines,
and had all merchants lock up the cigarettes that were for sale, with the
intent to provide a certain quality of life, with regard to smoking. Mayor
Boro noted the City was consistent throughout the community, and he
believed that was important when dealing with so-called "quality of life"
issues. He pointed out we could not have dual standards, where it is all
right for the homeowner groups to have a little picnic and have liquor, but
then state it is not all right when unrelated people get together and drink
in a park. He stated the City had to be consistent, and if one needed a
permit, the other needed a permit.
Based on comments heard over the years concerning problems within the
community, Mayor Boro pointed out one of the problems with this "drug",
which he considers alcohol to be, is that it is readily available, and the
City cannot regulate the sale, noting that is up to the merchants and the
ABC. However, he asked staff to find out if the City could, on a
consistent basis throughout the City, ban the sale of single cans of beer,
and also see whether any other communities have done this. Mayor Boro
recalled at one point there were discussions with one or two of the
merchants in the Downtown about this issue, and they were encouraging to do
this because of the behavior caused by selling single cans, as well as
single cigarettes. He noted the business community visited with the
merchant and the owner of the property, and they did make some adjustments.
Mayor Boro noted everyone was aware of one certain location in particular
which sells single cans, noting there are problems with that. He stated it
was his understanding, in speaking with Chief Sanchez and one of the
Captains, that unless the City had a record of infractions, there was not
much the ABC could do. He stated the City knew that in at least one or two
cases, there were establishments that really contributed to a large part of
the problem we have in the City; however, the City cannot regulate one or
two establishments, it must regulate all establishments in the same way.
He asked Mr. Guinan to look into whether the City would have the ability to
limit the sale of single cans of beer. Mr. Guinan stated he would review
that issue, but he believed, based on what he had looked at so far, that
this would be difficult. He stated he would contact the ABC, as well as
other cities, to see if anyone had gotten into that area, and what problems
they may have encountered.
Mayor Boro again referred to the parks, noting he assumed Mr. Guinan was
stating that whether it was the Bocce group, or a homeowners association,
these groups would come to the Community Services Department to ask for a
permit, and once they were given a permit, they could then serve alcoholic
beverages. Mayor Boro asked what happens if, for example, a family shows
up to have a picnic in one of the City's parks, and they have a six-pack of
Coke and a six-pack of beer? He asked if, in the strict interpretation,
was the City stating they would need a permit before they could consume
that beer? Mr. Guinan stated that under Section 2.16.028 of the current
Ordinance, they would need a permit. Mayor Boro asked if it would be the
same under the proposed new Ordinance? Mr. Guinan stated he had not
changed that section, and it would be the same; however, he noted he could
address that issue if Council so directed. Councilmember Cohen asked if
that could be done in such a way that a family showing up to have a picnic
could have a six-pack of beer, but if four or five guys showed up after a
SRCC MINUTES (Regular) 1/4/99 Page 7
SRCC MINUTES (Regular) 1/4/99 Page 8
basketball game, they could not? Mr. Guinan stated that could not be done.
Mr. Cohen stated that would probably have to be left as it is.
Mayor Boro referred to the proposed Section 8.15.050, which states it shall
be unlawful for any person to consume alcoholic beverages on private
parking lots, but noted it also stated this would only be effective if the
property owner posts a sign. Mr. Guinan stated that was correct. Mayor
Boro asked if there was a parking lot next to a market, were we stating it
would be unlawful to drink from open containers in that parking lot, but
unless the property owner posted a sign, the City could not do anything
about it? Mr. Guinan stated that was correct, noting the idea behind that
was to notice the individuals as to what the prohibited conduct is. He
pointed out it was especially critical when it is on private property, as a
good segment of the population would not understand, without the signage,
that such conduct would now be prohibited, as in the past it had not been.
Mayor Boro asked, if it was prohibited to do this, why the City could not
require the property owner to post the sign? Mr. Guinan stated the City
could require that, pointing out as Section 8.15.020 is proposed, Sub-
section C requires the premises owner to post the signs, and failure to do
so is, in itself, an infraction. He explained that requirement had also
been picked -up from the City of Oakland's requirement, which has been used
and tested, and has been successful. Mayor Boro asked if the City could do
the same thing with parking lots? Mr. Guinan stated he believed we could.
Mayor Boro suggested we think about including that option. Mr. Guinan
stated he could draft the Ordinance in a way that it would provide two
options; one with mandatory posting, and the other where it is an option of
the residential property owner.
Mr. Guinan stated Council might also consider that if the definition of
"residential property parking lots which must be posted" remains at three
or more units, there will be a lot of property owners who will be required
to post the signs, which may be what the City wants to do. Mayor Boro
stated the City needed to weigh that. He noted that when the City approves
units, there are conditions from the Planning Department which deal with
such things as fire issues, where the garbage is picked up, sprinkler
systems, and many issues that deal with safety during construction of an
apartment. He believed this was a social issue, but noted in many cases it
had to do with a person's safety, either the perception of it, or the real
issue of safety, based on things other people are doing on that property.
Therefore, he stated if there were other options, he would like to see
them, and see how far the City could push this, what it would mean, and how
people were going to perceive it. He noted the City had done this with
cigarettes, pointing out we did not just pass the Ordinance, we worked with
the Chamber of Commerce and did outreach to all the local merchants,
discussing what it would mean as far as vending machines, the sale of
single packs and cartons, and the lock-up requirements, and there was a lot
of community support for that Ordinance. Mayor Boro felt the City should
have an array of options, because he did not believe it made sense to state
it was unlawful, but it was not effective unless the property owners post
the signs. He stated if it is unlawful, the City should make it unlawful,
unless there is a Constitutional issue which prevents us from forcing the
owner to post a sign. Mr. Guinan stated he did not believe that was the
case. He explained he had attempted to take the best parts of the various
Ordinances, and had not focused on making all residential property owners
required to post; however, that was certainly an option, and he did not
believe any of the Constitutional provisions, either privacy or the Fourth
Amendment, would prohibit the City from doing that.
Councilmember Cohen noted if Council were going to consider requiring
private property owners to post residential parking lots, the City might
also consider whether three parking spaces was really an appropriate
number. He stated he would be interested in seeing whether that could be
split, noting if it was legal to require people to post, it was also legal
to state people could post if they choose. He suggested perhaps the City
should consider that with ten or fifteen units it would be a large enough
complex that the City should require the property owner to post, and with
smaller units it would be at the discretion of the property owner. The
owners of smaller properties where problems have occurred would be
encouraged by the City to do so. He felt this might be better than
requiring everyone who has three units to post. Councilmember Heller asked
if the City could discuss this with the property owner associations? City
Manager Gould stated there was a Countywide association of real property
owners, and a sub -set from the Canal, with whom the City had been meeting
in conjunction with the Police Department. Ms. Heller believed it would be
helpful to have their input, and see what problems they might foresee.
Mayor Boro suggested that when this is brought back before Council, staff
also provide a plan for how this could be communicated to the affected
groups, so they can provide input before the Ordinance is adopted.
SRCC MINUTES (Regular) 1/4/99 Page 8
SRCC MINUTES (Regular) 1/4/99 Page 9
Mark Alley stated that in listening to the conversation regarding this
issue, it seemed the City was intending to regulate the consumption and
possession of alcohol on private property. He asked if that was really
what the City wanted to do, or was the concern actually the behavior that
results from the consumption? He asked, if it were the behavior, which
comes after the fact, weren't there already laws on the books that
empowered the Police to take appropriate action? Chief Sanchez stated
there were certainly opportunities to enforce laws after the fact; however,
he noted the Police Department was attempting to be as proactive as
possible, with an educational effort, not only through the licensees and
the community at large, but the City's employees, as well, stressing that
it is important that the City address issues that for years have bothered
the community. Chief Sanchez acknowledged this was not the "crime of the
century", but it was something which does lead to other issues, and while
the City does have ways of dealing with those laws that are broken, after
the fact, the Police Department would like to get them before. He
reiterated the Police Department's biggest issue, which is shocking the
Patrol Officers, is that most of the drinking problems involve young
people, and they are not doing it at home, they are doing it in the parks,
and in the parking lots of markets, liquor stores, schools, and football
fields. He felt the Police Department had to have this tool, in order to
take a proactive approach.
Mayor Boro believed the intent was just as Chief Sanchez had stated, to
have laws allowing the Police Department to deal with people if they are
drunk in public and causing a ruckus. He noted there were other issues,
such as people who drink and then drive, and whether there was any way to
prevent them from drinking in a park and then going out and driving, or a
way of preventing it from happening to begin with, so we do not have a
fatal accident where two or three innocent people are killed on a freeway
or city street. He noted that was why he had asked about the single cans,
hoping to get to the root cause, rather than the effect.
Councilmember Phillips noted Chief Sanchez had reported the Police
Department calls the parents when a young person is detained for drinking;
however, he stated he would be interested in knowing more precisely what
else is done with regard to education, noting he assumed those young people
who are cited have an opportunity to go to an educational program, or an
awareness program. He stated he would like staff to return with a report
as to what does occur, and what steps the City is taking to try to prevent
this problem, or at least eliminate it as much as possible. He felt this
was a step in the right direction, but noted he would be interested in the
"bigger picture". Chief Sanchez stated such a report was already
available, and he would include it in the Friday Memo.
Mayor Boro asked that the record show Council has agreed to continue this
issue to an open date, when Assistant City Attorney Guinan can return with
a revised draft Ordinance. He asked Mr. Guinan to continue working with
the City Manager's office, as well as some of the affected groups within
the community, primarily the property owners of retail establishments where
parking lots are located near the retail establishments, as well as the
apartment house owners, and develop some way to communicate, either during
the process or before this is enacted, so the City has some way to get the
word out.
5. APPROVAL OF CITY COSTS RELATING TO MARIN EMERGENCY RADIO AUTHORITY (MERA)
AND AUTHORIZATION OF PURCHASES OF RADIOS AND EQUIPMENT (CM) - File 4-13-
102 X 9-3-30 X 9-3-31 X 9-3-40
City Manager Gould noted Council was now at the critical decision point in
the two-year effort to achieve a Countywide Emergency Radio System. He
recalled this began in 1991, when the City procured a trunk radio system
for the Police Department, which at the time was thought to be state-of-
the-art, but never met the performance specifications. He noted it had
become an issue Council first addressed in 1996, when it set aside $2.1
million of funding, and directed City staff to proceed with procuring a new
radio system for the Police Department. However, at the same time, the
City began having discussions with the County, and found the County was
also experiencing problems with its radio system, although their problems
were less publicized and acknowledged. Further, the City also learned the
two major suppliers of low -band radio systems indicated they would cease to
support these systems within the next two to three years; therefore, in
essence, all the systems in the County were going to become functionally
obsolete in that period of time, giving impetus to the idea that perhaps it
was time for all the agencies who rely on radio systems for communication
of their public safety officials, to band together and achieve a system
that provided "interoperability", meaning the ability for Police Officers,
SRCC MINUTES (Regular) 1/4/99 Page 9
SRCC MINUTES (Regular) 1/4/99 Page 10
Firefighters, Public Works Officials, and others to communicate seamlessly
across departments, across functions, and across locations in times of
emergency, and times of major mutual aid. He stated it was acknowledged
that this would likely be the single greatest step Marin legislators could
take to improve emergency preparedness in Marin County. He noted whenever
a "post mortem" is done following a major incident, the areas that come
under the greatest scrutiny, where the greatest opportunities were lost,
are the areas of miscommunication, because either the technology was not up
to the task, or different agencies were using different technology, and the
people on the ground were not able to communicate.
Mr. Gould reported they began to study the feasibility and desirability of
doing something Countywide, and the next hurdle was that there were no
frequencies; therefore, we could not use the existing low -band frequencies
the City and the County owned and controlled, because they would no longer
be supported by the vendors. This meant we had to go up the spectrum;
however, all the frequencies were spoken for. Mr. Gould reported at that
point they had to go to Washington, D.C. and lobby the Federal
Communications Commission, asking, if the County of Marin were to get its
act together, and all the agencies were pulled together in a Countywide
system, would they set aside some frequencies, at no charge, for this
public safety purpose? He reported their answer was that if we could pull
together a Countywide radio system, they would give us the frequencies,
provided we moved on it expeditiously. Mr. Gould noted they then had to
form an organization to represent all the agencies, and out of that came
MERA, the Marin Emergency Radio Authority, which includes representatives
from big agencies and small, rural and city agencies, and single purpose
and multi -jurisdictional agencies. He stated the membership currently
stands at 24 members, noting it was a "miracle" of inter -governmental
cooperation that this organization even exists and functions. However, to
get to the point where we are tonight, there had to be an agreement on
performance, describing what this system had to do to meet the needs of the
Transit District, College District, Police Departments, Sheriff's
Department, Fire Districts, Public Works Departments, and the (Marin
Municipal) Water District's Rangers, with a whole range of different needs
all over the County. Mr. Gould stated they also had to agree on how the
cost would be allocated, not only for the capital purchase, but the ongoing
operating costs of the system, as well. They also had to decide how this
was going to be governed, who was going to make decisions and break ties,
who was going to own the system, and who was going to maintain and operate
it. He reported they had to decide on what types of equipment to select,
and then the proper means of financing it, noting that became a major
issue. When the early estimate indicated it would cost upward of $20
million to procure a system that was state-of-the-art, reliable,
consistent, and would give us the penetration that we needed, many people
thought this was impossible. However, he reported the more they studied
it, and as specific information came their way regarding lower interest
rates, it became more and more logical that they consider financing the
system, particularly as very few agencies in the County had set aside any
money for this purchase, and there was no alternative.
City Manager Gould stated they built this organization, and then put out a
Request for Proposals. He noted there are two major vendors of public
safety radio systems in the world, and they had hoped to get both of them
to submit proposals; unfortunately, one of them, G. E. Ericsson, could not
perform in the band of frequencies we had been allocated by the FCC.
However, Motorola Corporation did propose, and he noted they were the
largest supplier of Police and Fire public safety radio equipment in the
world. Although their proposal did not immediately meet the performance
specifications that had been set, through negotiation they were able to
meet all the performance targets. Mr. Gould reported they had in-depth
negotiations with Motorola during the past month regarding the operating
contract, purchase price, performance specifications, warranties and the
availability of parts, as well as the design, layout and functionality of
the system. He reported they were able to reach agreement on all the major
points, and were at a point where MERA could make a decision whether or not
to commit to a provisional contract to purchase the system. Mr. Gould
explained Motorola was very motivated to make this deal by the end of the
calendar year 1998, and to book the business; therefore, Motorola offered
the opportunity to make the decision at the level of the MERA Board, to
enter into a contract to purchase the system, but at the same time, give us
until March 1, 1999 to opt out of the contract, for any reason whatsoever,
either by individual agencies, or MERA as a whole. He stated there were
major escape clauses within the contract signed by the MERA Board on
December 17, 1998.
Mr. Gould stated the issue was now going back to each of the individual
agencies, including San Rafael, and each agency was being asked to commit
SRCC MINUTES (Regular) 1/4/99 Page 10
SRCC MINUTES (Regular) 1/4/99 Page 11
to the funding of the purchase of the radio equipment, including the
backbone, which consists of the antennas, repeaters, and dishes, as well as
the user equipment, which are the dispatch consoles, the mobile radios in
the cars, and the hand-held portables. Each agency was being asked to
become committed and responsible for its share of the debt service to make
this purchase go, and if everyone signs up, they will then attempt to sell
bonds by the end of this month. Mr. Gould explained what San Rafael would
get out of this system was a radio system that is state-of-the-art, and
provides much wider coverage, with much greater penetration, including in -
building coverage, which will be much more reliable, and much more
upgradeable and enhancable for the future. Mr. Gould stated no one could
predict how technology will evolve in the coming years, noting some may say
this is a twenty-year expenditure being made, and ask how we can be certain
we will not be using something radically different in ten or fifteen years.
Mr. Gould stated he could not make that assurance; however, he noted this
equipment was state-of-the-art, and was the best we could do at this time.
He stated that through this purchase, they were able to negotiate the
lowest prices that have been achieved on the user equipment in recent
months, noting Motorola wants to use Marin County as a demonstration of
what can be done on the so-called "sub -frequencies", so they can sell this
system elsewhere; therefore, Marin County will be a showcase of sorts, and
Motorola is very interested in proving that this works. Mr. Gould reported
we had some leverage here that would not have been expected from a single -
vendor bid.
Mr. Gould reported the MERA Board had developed an Operating Agreement,
which has been forwarded to each member agency, and San Rafael has been
asked to make a decision by January 14th as to whether or not it will be
part of this effort. He stated if MERA is able to make this decision, they
will achieve a $1.3 million discount on the overall cost of the Countywide
system.
Mr. Gould stated the financing alternatives were examined by a finance
committee that included our consultant, and it was decided the best option
was to issue revenue bonds to a limited number of bond holders, perhaps as
few as thirty-five or less. He explained each agency would have a piece of
the backbone system, and would then pay for its own user equipment. He
reported the user equipment had a life span that was expected to be
approximately eight years, whereas the backbone system, meaning the
antennas, the towers, and so forth, would be twenty years or greater. Mr.
Gould stated they would level the payment, to equalize it over the term of
the bond. He reported the bond documents presented for Council's
consideration included a Continuing Disclosure Agreement, which commits
them to provide annual audit reports and other information as may be
necessary to assure the bond holders; an official statement which addresses
each agency's financial resources and its ability to pay its debt service;
and sections of the Operating Agreement referencing the City of San Rafael.
Mr. Gould stated these have been reviewed by San Rafael's City Attorney,
in conjunction with legal counsel from the other agencies, and MERA itself.
He noted the Operating Agreement was written in an almost one-sided
fashion, to assure the bond holders that it was highly unlikely there would
be default, pointing out there were many protections built-in to protect
the bond holders. Mr. Gould stated it took the participants a while to
understand that, and to realize the payoff for that was in much lower
interest rates than they could achieve otherwise.
Mr. Gould reported the member agencies were obligated to make annual
payments on August 1st of each year, payments would be made to a bond
trustee, and would include the operating costs of the radio system. Mr.
Gould noted it was important that the agencies covenant to pay both the
debt service and the operating costs, because the functioning system was
ultimately the principal security of the bond holders. If bond payments
were not made by the following December, following the August 1st due date,
the Operating Agreement authorized the Auditor/Controller of the County to
withhold tax receipts, and make the payments directly. Mr. Gould stated
that was a very "heavy hammer", and Council needed to be aware of it,
noting it had to be included because some of the other agencies were
unrated, or did not have the same bond rating we enjoy in San Rafael. Mr.
Gould reported the bonds would be fully insured, a $2 million reserve would
be established, and there would be business interruption insurance to
further backstop this agreement. Mr. Gould pointed out Council had an
opinion from the City Attorney's office that this member agency was duly
formed, valid, and existing.
Mr. Gould reported the total price of the system is $22.3 million, probably
the largest single purchase Marin County will make in the next ten or
fifteen years. San Rafael's share of that purchase price is $3.7 million,
to be paid in annual increments of no more than $337,637, beginning in
SRCC MINUTES (Regular) 1/4/99 Page 11
SRCC MINUTES (Regular) 1/4/99 Page 12
fiscal year 2001-02; therefore, there would be no payments for two years,
and the City could begin to make provisions to begin to pay for it. He
noted this included San Rafael's share of the proposed consolidation of
Fire Dispatch, which Council approved, in concept, at its last meeting,
contingent upon the County making a similar commitment. He believed that
would be going to the County Board of Supervisors later this month.
Mr. Gould stated the operating costs of this system were also significant,
noting they were expected to average $600,000 per year over the next five
years, and would also begin in 2001. He stated the committee felt these
costs were conservative, and the debt financing would actually come in more
beneficial than was being estimated. They also believed they would be able
to attract even more customers to this system, which would begin to help in
lowering the operating costs. In addition, referring to the taxable
portion of the purchase, Mr. Gould reported there was an agreement with
Motorola to "flow back" the 1% tax to each of the agencies, in proportion
to their share of the overall purchase cost.
Mr. Gould reported Council's options included approving the financing and
San Rafael's share of the cost of the MERA radio system; choosing not to
take part in the financing and directing staff to use reserves to pay for
this expense directly, which Mr. Gould believed would essentially wipe out
the City's reserves, and would be a violation of the City's financial
principles; or it could choose to withdraw from MERA and attempt to
approach the radio system unique to San Rafael, although Mr. Gould stated
he did not know how that would work at this time. He reported they had
invested a considerable amount of time and effort in trying to accomplish
the most the City could for the public dollar, and he believed this
investment would serve the City of San Rafael, and the other agencies in
Marin County, very well for the next two decades. He hoped Council would
step up and make the commitment.
Mr. Gould thanked Councilmember Heller for serving on the Police Radio
Committee, which had studied this issue for the past two years; City
Attorney Gary Ragghianti for taking the leadership of the City Attorneys'
and Counsels of the various agencies; Assistant City Manager Ken Nordhoff,
who ran exhaustive iterations of the spread sheets, explaining the
financing over and over to many people who were less familiar with it; and
the City's employees who served on the Technical Advisory Committee: Kathy
Cronin, Ralph Pata, of the Police Department, and Ritt Hewitt of the Fire
Department, who had done a fine job on this committee.
Mr. Gould stated this had been one of the most complex projects he had ever
been involved in, complex from a technical standpoint, from a financial
standpoint, and complex from a governmental and political standpoint.
However, he believed we were standing on the doorstep of accomplishing
something very important.
Councilmember Heller referred to Page 4, noting the word "covenant" was
being used. She asked if that was a legal term for the word "contract"?
Mr. Gould stated in this instance it meant to "commit to". Referring to
the section addressing Estimated Operating Costs, Ms. Heller asked who
Richard Chuck was? Mr. Gould reported Richard Chuck was the County's new
radio engineer, whom they were able to hire away from the City of San
Diego, noting this had been quite a coup, because without having Mr.
Chuck's level of expertise on staff, available to implement the system and
operate it, our chances would have been greatly diminished. Being able to
hire Mr. Chuck away from San Diego, and contract for his employment during
the next five years, greatly enhanced the chances of success in Marin. Ms.
Heller asked if his expenses were pro -rated in the proposal? Mr. Gould
stated they were included in the Operating Costs. Ms. Heller asked if he
was under contract for a certain amount of time, and Mr. Gould reported he
was under contract for five years.
Councilmember Heller asked why the telephone lines had become so expensive,
jumping from $50,000 to $100,000 in the fourth and fifth years? Mr. Gould
stated he would review that information and report back. Ms. Heller
referred to the radio cost allocation and radio equipment summary, noting
for San Rafael the costs for Fire and Public Works were very close, with
only a $70,000 spread. She stated she had not thought the cost for Public
Works would be that close to the Fire Department's costs, and asked if that
was because of the amount and number of equipment pieces, making Public
Works just as big a department as the Fire Department? Mr. Gould stated
that was correct, explaining it was based on such things as the number of
pieces of equipment, and the number of vehicles that have to be outfitted
with the mobiles. He noted the Fire Department also uses an alerting
system, which adds a special cost to Fire services.
SRCC MINUTES (Regular) 1/4/99 Page 12
SRCC MINUTES (Regular) 1/4/99 Page 13
Councilmember Phillips noted Mr. Gould had acknowledged the work done by a
number of individuals, whom Mr. Phillips agreed were worthy of recognition.
However, he stated he was very impressed with the work done by Mr. Gould,
and felt it should be recognized, noting it was a major undertaking, with a
lot of money and people involved, and consisting of a lot of very technical
information.
Councilmember Phillips referred to the bond issue, asking if Mr. Gould was
comfortable that it could be accomplished, and in what appeared to be a
very short period of time, with bonds of $20 million, and less than 35
investors, by next month? Mr. Gould stated they believed they would be
able to sell the bonds by the end of this month. Mr. Phillips asked if
there were investors already cued -up? Mr. Gould stated there were, noting
Marin -based bonds were highly desirable, even in this market, and with the
level of assurance they are able to provide, this was a risk-free tax
exempt investment vehicle, which they expected to sell readily. Mr.
Phillips asked what interest rate would be offered on these bonds? Mr.
Gould stated he believed it would be less than 5.00%, noting it would vary.
In response to Councilmember Phillips' question regarding the percentage of
coverage, Mr. Gould reported there were some locations, particularly in
West Marin, where due to the topography, it was questionable whether or not
an Officer wearing the radio on his or her belt would be able to get
transmission. While that changed dramatically if the Officer put the radio
anywhere close to his or her face, it still did not meet the performance
specification. By moving around the antennas and making some adjustments
on the microwave systems, they were able to achieve the 95% coverage
performance standard that had been set, and then some. Mr. Phillips asked
if there would still be a 5% void? Mr. Gould stated that was correct, but
noted this should not be interpreted to mean that 5% of the time our
Officers or Firefighters would be out of communication. He stated,
essentially, San Rafael would be covered 100% of the time. Mr. Phillips
asked if this meant it would be 5%, due to the locale? Mr. Gould stated
there could be as much as 5% of the County where there was less than crisp
reception if the portable unit was on the waist, while the mobile units
would essentially have 99.9% coverage. Mr. Gould stated this was a quantum
leap over any of the systems currently employed in Marin County, and he
believed virtually all the users who had studied this, including the Police
Officers and Firefighters, recognized that this would be a huge enhancement
for them.
Councilmember Phillips recalled at one time the City went into technology
that proved to be not quite as expected, and asked, with all the work that
has been done, was everyone comfortable that we would, in fact, have a
performing system, and not look back and say, "Here we go again". Mr.
Gould stated Motorola had major incentives to perform, the first and most
obvious, that we would not accept a system until it had operated flawlessly
for 60 to 90 days. He explained this meant not only testing the equipment
on the ground, but also working in tandem with existing systems, without
failure or malfunction, for that period of time. Further, there were other
warranties and protections built into the contract. Mr. Gould stated they
had done something early on, which he believed had been a strategic, good
decision. He reported they chose to do a performance-based Request for
Proposal, rather than design a system and then ask the vendor to come in
and provide an estimate on that design, which could lead to conflict later
as to whether or not the design was flawed, or the system was flawed. He
explained they set forth specifications for this system, and then invited
all the vendors to design and propose systems to meet those performance
standards. Mr. Gould stated that if, for some reason, the system failed to
meet one of the performance standards, there was no question as to
responsibility, noting it is the vendor who designed, built, installed, and
warranted the system.
Councilmember Cohen noted his only questions at this point involved how we
were going to pay for the system. He stated there was no question in his
mind that the City had committed to doing this, noting it was a real
problem, and the only reason we had not continued to hear about it was
because everyone believed the commitment the City had made to address the
problem. Mr. Cohen stated he appreciated the work everyone had put into
this, noting he was prepared to move forward. However, he asked for a
little more explanation concerning why they believed it made the most sense
to go the bond route? Referring to the capital cost, he noted it appeared
as though, when you take the $337,637 per year for twenty years, we were
actually paying $6,740,000 for this radio system. Mr. Cohen asked if we
could consider other options, noting Mr. Gould had stated that if we were
SRCC MINUTES (Regular) 1/4/99 Page 13
SRCC MINUTES (Regular) 1/4/99 Page 14
just to pay it up front we would be stripping our reserves. He asked what
our average rate of return was on investments? Assistant City Manager
Nordhoff stated it had been averaging around 6.00%. Mr. Cohen noted,
therefore, we would actually be making more than we would be paying in
interest on these bonds. Mr. Nordhoff stated we would, by at least 1.00%,
and probably closer to 1.25%. Mr. Cohen asked if Mr. Gould recommended the
City take the $1.2 million we have already allocated for this radio system,
bank it, and use the return on that investment to "write down" the cost of
this $337,000? Mr. Gould stated that was his recommendation, while drawing
down the $1.2 million over the period of the bonds. He suggested we let
the "cheap" money work for us during the term of the bonding, while using
the money Council has already set aside. Mr. Gould stated he would like to
come back with schedules that would show the difference if we were to put
the $1.2 million up front, and pay it off immediately; invest it, and use
the investment proceeds to write-down the annual debt service over the term
of the debt; or do a hybrid, and use the $1.2 million to begin to pay it
down, while investing it for a higher return. Mr. Gould noted he could not
state there were huge amounts of money to be saved or made here, pointing
out it was likely in the range of $10,000 to $15,000 per year; however, it
was simple money management, and he could present those schedules and ask
the Councilmembers which way they would like to go.
Mayor Boro noted there was also the issue of the best way to do it. He
stated we still needed to come up with approximately $300,000 per year in
money we were currently not spending, after we get through the first couple
of years of this, so there was definitely an impact over the next few years
to the City's Operating budget. He noted that was the liability the City
was buying into, and he did not know where that was going to come from.
Mr. Gould stated he would like to bring Council some options to consider as
part of the mid -year budget review, acknowledging this was something the
City was going to have to begin dealing with in the coming year's budget,
even though we would not start making payments until the year 2001. He
noted if we did not start accommodating it now in our budget, it would be
that much harder later on. Mr. Gould stated we did have some options, and
reported Mr. Nordhoff was going to begin working with three major user
departments to determine how much of the cost would be attributable to
their separate funds, other than the General Fund, such as how much to the
Paramedic Fund, and how much to the Sanitary District. He will also begin
to look at whether or not some of those costs can be recovered in our Fees
and Charges Schedule. Mr. Gould stated Council would be given the
schedules on the various benefits and drawbacks of using the $1.2 million
that has been set aside, and will be asked whether they want to begin
setting aside money for the next two years to build on that $1.2 million,
to help lower the debt when the time comes. He stated staff could offer
Council a number of options, but acknowledged it was going to be very
expensive, noting the City had to begin planning for it now.
Councilmember Cohen referred to allocating costs to the Sanitary District,
noting one thing that struck him about the list was that none of the
Sanitary Districts seemed to be involved in this project. He asked if
there had been any discussion with CMSA (Central Marin Sanitation Agency),
Sanitary District #1, Las Gallinas, or any of them, about participating?
Public Works Director Bernardi stated he had spoken with the Director of
the CMSA, and was told there was not much interest from any of the other
member agencies of CMSA to participate in this. Mr. Bernardi suggested the
member agencies get together to discuss this, because he felt it was
something that was important for the entire County; however, the CMSA
Director had not yet been able to raise sufficient interest to do this.
Mr. Gould stated it may be that some of the sanitary districts would come
in as customers, noting they did not have the same stake in this as the
public safety agencies; however, to be able to communicate with the major
agencies in time of a major emergency would make a lot of sense. He felt
some of the school districts might also want to buy into it.
Councilmember Miller pointed out this was a very complex issue,
financially, programmatically, and politically, and noted it was difficult
to give a single answer when local residents are asking questions about it.
He stated one of the questions that would be asked of him was whether this
had a full 100% backing by the Police Officers Association, the
Firefighters Association, and by the people in the Public Works
Departments? Mr. Gould stated it did. Mr. Miller asked if he could then
tell people this was what those who really had to do the job say they
really want? Mr. Gould stated that was correct. He noted this was an
employee safety issue as much as a public safety issue, so to give the
employees the best tools in the trade, the best technology available now,
was a matter of personal safety, as well as the ability to get the job
done.
SRCC MINUTES (Regular) 1/4/99 Page 14
SRCC MINUTES (Regular) 1/4/99 Page 15
Councilmember Miller noted we would be getting a marvelous communications
system for everyone, but asked if, in response to questions, he could tell
people the City does have the money to pay for it, and would not be taking
money away from other important things? Mr. Gould stated he hoped to be
able to show, with Mr. Nordhoff's assistance at the mid -year budget review,
as well as the budget discussion that will be held for the coming two-year
budget, that the City can forecast sufficient revenues to pay for this
expense. However, he noted that at the same time, the City would have to
juggle other commitments Council may wish to make, such as major
commitments including compensation for all the major bargaining groups, and
other commitments involving information systems technology, infrastructure
maintenance, workspace, and a whole laundry list of unfunded needs within
the City. Mr. Gould stated he could not state that all of them could be
funded concurrently, noting priorities and decisions were going to have to
be made by the Council. He stated if Mr. Miller were asking if he could
make the commitment that the City could afford this system without cutting
into existing services, he believed he could. However, if he was asking
whether he could make the commitment that the City could have this system,
and everything else we wanted in the City, the answer would be absolutely
not.
Mayor Boro felt it was unfortunate Council could not know all the options
before going forward. Mr. Gould agreed, but noted circumstances did not
allow them to consider all of the options at this time, because he did not
yet know what the alternative would be to not being part of this Countywide
system. Mayor Boro stated it was unfortunate they did not have the mid-
year review, and the impact of other services they may want to enhance or
add, but might have to retract or eliminate as a result of supporting this
system. He stated he would support the Countywide system, but noted
committing to this was going to take a big piece of discretionary money, if
we have any, off the table, without looking at what that is impacting. Mr.
Gould stated he regretted he did not have all the expected Revenues and
Expenditures, to be able to give Council that full picture, although some
of them had been set forth in the five-year plan. Mayor Boro stated all
the Councilmembers had been around when things were not good, and while
right now they were experiencing a "high roll" in the economy, and a great
boom in our sales tax, which was approximately 40% of the City's budget, he
noted there have been times in recent years when those numbers were down,
and pointed out this was a "constant" the City was going to have to
swallow. Mr. Gould agreed, stating the Council had been very
prudent in its financial decision-making. He noted not only had they set
an 11.00% principal of General Fund Reserves, which was also being
maintained in many of the other funds, but they also recently approved, in
concept, setting aside the equivalent of 3.00% of salaries for a "rainy
day", as a further hedge. In addition, last year, when the City got a
break on the retirement system costs, Council decided not to spend all of
that on Operations, but to set some of it aside to pay for fluctuations in
retirement premiums. Therefore, Mr. Gould believed the Council was making
provisions for those times when the economy flattens out or takes a
downturn. Mr. Gould acknowledged this would, absolutely, put additional
stress on the City's ability to finance its ongoing obligations.
Mayor Boro asked for more discussion regarding two types of guarantees.
First, he noted Mr. Gould had stated they would not accept the system
unless it works; however, he pointed out the City was obligating itself to
the bond. Therefore, he asked what would happen if the system were
designed, and then did not work, but the City was obligated to pay the
bonds? Mr. Gould stated the trustee would have the proceeds of the bond
issue, which would not have been paid to Motorola; therefore, the City
would essentially be out the "up front" or "soft" costs of getting there.
However, the bulk of the funding would still be in trust, and could be used
to refund the bonds. Secondly, Mayor Boro stated he believed that to agree
to any type of technology for three years was too long, and twenty years
was way out of sight in today's environment; however, he acknowledged what
the City needed to do. He asked how the City could assure itself the
vendor would not, ten years down the line, tell us what we had was no
longer the latest in technology, and they were going to pull the plug?
Mayor Boro asked if there would be any guarantees from the vendor over the
twenty-year life cycle that they, or their successors if Motorola is no
longer in business, will fully support this system with both hardware and
software support, so even if it may not be state-of-the-art, if it is
working for the County of Marin and the cities of Marin, it will still be
operational? Mr. Gould stated this was a "make or break" issue in
negotiations with Motorola, noting the committee had made the same point,
and made it clear they could not possibly recommend a contract to MERA,
much less to the member agencies, if there was any chance that at some
point during the term of the bond the system would become obsolete, and
they would be forced to replace it, while paying debt service on a system
SRCC MINUTES (Regular) 1/4/99 Page 15
SRCC MINUTES (Regular) 1/4/99 Page 16
that no longer worked. Mr. Gould reported Motorola objected to the demand;
however, after discussing the issue for approximately three weeks, Motorola
went further with MERA than it ever has with any of its other clients in
America, guaranteeing "first parts" availability for the existing system,
and automatic upgrades once they no longer make the parts for the system,
for the first fifteen years, if not longer. Mr. Gould acknowledged this
was not for the entire twenty years, but stated it was the best guarantee
anyone had been able to get. Mayor Boro clarified the guarantee would be
honored by either Motorola or their successor? Mr. Gould stated they were
contractually committed to servicing and supporting this system for fifteen
years, with the same, similar, or better parts and technology; therefore,
we were guarded against obsolescence for at least fifteen years.
Mayor Boro referred to the thirty-five bond holders, noting it had been
stated the average rate would be approximately 4.8%. He pointed out he
sees bond listings every week, and for AAA rated, insured bonds, there was
nothing out there now paying 4.8%, noting most were paying between 3.75% to
4.0%. Mr. Nordhoff stated they had estimated a range of rates, which began
as low as 3.50%, and went as high as 5.00%, depending upon the term of the
individual bonds. He stated 4.8% was a conservative estimate, noting they
built the process that way because they needed to be able to give people an
outside number to put into their Operating Agreement as their service
payment. However, he stated they expected to beat that number. Mr.
Nordhoff reported they had also looked at past trends, noting that,
historically, rates tended to rise the latter part of January, in both good
and bad economies, and tended to bottom down just before Christmas, and
come back up after the middle of January. He stated they would have to see
what the market bears in three or four weeks. Mayor Boro clarified that,
generally, a AAA -rated insured bond would pay considerably less, in the
short-term and the long-term, than one that was not insured, and was lower
rated, reiterating he had not seen much at 5.0% or 4.5% for the bad or
risky ones. Therefore, he felt Mr. Nordhoff was being very conservative.
Mr. Nordhoff acknowledged they were being conservative. He reported they
had done some preliminary pricing, and this seemed to be where this type of
issue was going to fit. He explained that because this was "multiple -
agency", which was a little unique, it put additional risks into the
process, noting it would be different if it were just the City or County
issuing bonds. Mayor Boro stated he hoped that by getting a lock on the
thirty-five investors, it was not causing us a higher rate than if we went
on the open market? Mr. Nordhoff stated it was not. He explained it did
limit some disclosure requirements, but it still gave us the advantage of a
competitive sale, and also eliminated some SEC filing requirements and
ongoing costs. He noted sometimes you tend to pay for these things up
front, or you have to pay for them for the length of the bond; however, he
felt this truly was the best way to go.
Councilmember Heller reported the technology of this radio system was not
state-of-the-art, it was a "workhorse", and was somewhere in the middle.
She explained the committee did not go way out on the edge, it had gone
with what would last, and what would make it through the next twenty years.
She pointed out our history has been that we use our equipment around here
for thirty or forty years, and this was simply another "computer" being put
into place to bring the technology up to that of ten years ago.
Councilmember Cohen believed the answer to Councilmember Miller's second
question was a definite "maybe", noting he was glad to hear the
Councilmembers could tell people the City believes it can absorb this
additional $330,000 per year without cutting any currently existing
programs. However, the fact remains there were two things about the
decision Council was headed toward. First, as Mayor Boro pointed out, just
because that is true today does not mean it is going to be true five years
from now. Secondly, given that it is true today, it is still $337,000 the
City would be able to spend for such things as expanding Library hours, or
repair and maintenance of the medians. He stated there were definitely
opportunity costs here, and he believed that when people asked the
Councilmembers about this, they were going to have to face them squarely,
and tell them they elected to do this, as opposed to spending the money
elsewhere, but that they did it for perfectly valid reasons, the same
reason for which they had made the commitment in the first place. He noted
that while they could go out and study alternatives, he did not feel it
would be particularly productive. Mr. Cohen believed they had come to what
everyone in Marin County who has studied this issue agrees is the best way
to go to resolve the problem that every jurisdiction has, which he
acknowledged was expensive, but was something that had to happen. Mr.
Cohen stated, in this case, they were also committing future Councils,
noting that while they could not commit them to how they were going to deal
with the $1.2 million, they were going to state that the City of San
Rafael, for the next twenty years, was going to be paying $337,000 per
SRCC MINUTES (Regular) 1/4/99 Page 16
SRCC MINUTES (Regular) 1/4/99 Page 17
year. He stated they were going to be making a choice when they did that,
and if people asked them about it, they were just going to have to admit
they made that decision, which is what they were elected to do.
Mayor Boro commended City Manager Gould for his leadership, noting that
while a lot of people had worked on this, he believed they would have never
gotten as far as they did, Countywide, without Mr. Gould's help. He also
believed, from the City's point of view, it was important the City had not
come in with a new radio system that would work for us, but would have
isolated us. Mayor Boro stated Mr. Gould had looked at the global
picture, from the standpoint of both the City and the County, and thanked
him for that.
Councilmember Heller moved and Councilmember Cohen seconded, to adopt the
Resolution approving the financing and San Rafael's share of the cost of
the MERA Radio System.
RESOLUTION NO. 10350 - RESOLUTION APPROVING, AUTHORIZING AND DIRECTING
THE EXECUTION OF A PROJECT OPERATING AGREEMENT,
CONTINUING DISCLOSURE AGREEMENT AND APPROVING THE
RELEVANT SECTIONS OF AN OFFICIAL STATEMENT AND
DIRECTING CERTAIN RELATED ACTIONS IN CONNECTION WITH
THE EMERGENCY RADIO SYSTEM PROJECT FINANCING.
AYES: COUNCILMEMBERS: Cohen, Heller, Miller, Phillips & Mayor Boro
NOES: COUNCILMEMBERS: None
ABSENT: COUNCILMEMBERS: None
6. ELECTION OF NEW VICE -MAYOR OF CITY COUNCIL FOR 1999 - File 9-1
Councilmember Phillips moved and Councilmember Miller seconded, to nominate
Councilmember Paul Cohen to serve as Vice -Mayor of the City Council for
1999.
Mayor Boro declared Councilmember Cohen Vice -Mayor, by acclamation.
COUNCILMEMBER REPORTS:
7. a. BUSINESS ISSUES COMMITTEE - File 9-2-10 x 9-1
Mayor Boro announced he had asked Councilmember Heller to serve on
the Business Issues Committee. Mayor Boro thanked Councilmember
Phillips for his work on the Committee during the past couple of
years.
b. AGENDA PREPARATION/DISTRIBUTION DATE - File 1-4-2
Councilmember Cohen referred to an issue he had raised at a recent
Council meeting, and which City Manager Gould had referred to in a
recent Friday Memo. Mr. Cohen clarified he had not been recommending
the City push back the release of agendas and staff packets to an
earlier date, noting it was more a question of whether there was a
way the city could treat, for example, affected property owners as a
special case for notification. Mr. Cohen explained one did not
decide the Thursday before a Council meeting that a particular issue
was going to be on an agenda, noting that decision would have been
made several days earlier in discussion about what would be included
on the next agenda, and what would be ready when. He felt that at
some point, when we have a notion that an issue such as the "B"
Street Redevelopment Project is going to be on the agenda, he would
like us to look at whether there is a way that is reasonable for the
City to notify, for example, directly affected property owners who
own property within the boundaries of the redevelopment. He felt it
was reasonable to give people a "heads up", although he clarified he
was not stating we had to have the staff report ready a week or two
early. He noted he appreciated the effort everyone makes, and the
fact that this has already been moved back and opened up even more,
and while he was not necessarily asking that it be further expanded,
he did believe it was reasonable, particularly when it gets to issues
affecting property, that the City give people a little more notice,
so they can prepare, and if they are going to be represented by
counsel, they can contact their attorney and let them know that it
looks as if the issue might be coming up. Mr. Cohen stated the way
this now works, we leave people with a fairly compressed amount of
time, including the weekend, in which to be prepared to comment.
Mr. Cohen stated there was a distinction he made between something
like the Roberts case, for example, and notification to the general
SRCC MINUTES (Regular) 1/4/99 Page 17
SRCC MINUTES (Regular) 1/4/99 Page 18
public, most of whom are not quite so directly affected by an action
such as that. City Manager Gould asked if Councilmember Cohen's
concern was mainly when the Council or Agency was considering action
that might include the purchase of real property, in which case he
would want advance notification to the affected property owner? Mr.
Cohen stated that was the most obvious example, although there might
be cases where the City was considering action that was going to have
a direct impact. He noted he kept referring to the Roberts case
because it was easy to identify that the Roberts had a prurient
interest in what the City was doing, and it was very easy to foresee
that they were going to want to know, as soon as possible, when the
City was putting on the Agenda a discussion that would impact whether
or not the City proceeds toward condemnation of their property. Mr.
Cohen stated an issue regarding purchase was an easy one to identify,
but noted there could be other instances, and he believed it was
reasonable to give people as much notice as possible. Mr. Cohen
stated he did not believe it would cost the City very much for staff
to just say they believe an item is going to be on the Agenda, and
then if need be, call them up and tell them the item did not make it
on the Agenda. He felt it would be worth reviewing this, to see if
there is a way it could be done.
Economic Development Director Jake Ours felt this would be a fairly
easy thing to do, noting that was normally done by the Redevelopment
Agency. He explained that in the specific case referred to by Mr.
Cohen, the property owner had been notified, it was the attorney for
the property owner who had not been notified. Mr. Ours stated staff
normally tells people ahead of time when there is going to be
something on the agenda, noting as soon as staff knows it, they let
those affected know. Mr. Ours stated that in this particular case, a
mistake had been made on the part of staff, and one lawyer was not
notified; however, that was not normal procedure. Mr. Ours noted
that in a case like the one referred to by Councilmember Cohen, staff
usually knows quite a bit ahead of time when an item is going to be
on the Agenda, and they notify those concerned that the item has been
scheduled for a certain date, and while they do not always get the
staff report ahead of time, at least they know the item is going to
be on the Agenda. Mr. Cohen stated he was not necessarily looking to
move back the date when the staff report is available; however, he
felt it was reasonable to do exactly what Mr. Ours had described, and
at the very least, in cases involving property, people should be
placed on notice so they can be prepared, and if they want to come to
City Hall to pick up a copy of the staff report after it has been
copied and made available to the public, rather than waiting for it
to be mailed to them, they would have the opportunity to do so, and
not be caught by surprise.
City Manager Gould offered to discuss this further with Mr. Cohen,
and present another report in the Weekly Report. Mayor Boro agreed
there should be additional discussion. He acknowledged, particularly
in the case Mr. Cohen used as an example, it was a big issue to that
specific property owner; however, he noted that often times, a minor
zoning issue might also be a major issue for an affected neighbor,
and he was concerned about having different standards. He stated
that although the City had been sensitive to the issue, he had never
been concerned that a staff report may go out and, because of the
delivery system, the public might receive it before the
Councilmembers do. He noted the cut-off for mailing was now the
Wednesday before a Council meeting, and asked if that meant that on
Wednesday evening the mail is at the Post Office, prior to 6:00 PM,
and ready to go? Mr. Gould stated that was correct. Mayor Boro
noted that meant most people would receive notice on Thursday, if the
mail went out on Wednesday night. Mayor Boro noted the City would
always look for staff to be sensitive to issues we know the community
or individuals are very sensitive to; however, he stated the minute
the City starts making judgments that it will treat one issue a
certain way, and treat something else another way, then he becomes
concerned. He stated he would like to see if there was some way to
establish a realistic goal as to when staff is going to get these
things out, who they are going to go to, and that they are timely.
Mayor Boro agreed it was not fair for someone to receive something on
Saturday, and realize they have to be here on Monday; however, if the
City could try to get the information to them on Thursday, it would
give them at least one full workday on Friday, plus the weekend, plus
Monday. Mayor Boro acknowledged there needed to be more discussion
concerning this issue, stating he was concerned about having one set
of criteria for a certain type of action, and another type of
criteria for all the rest.
SRCC MINUTES (Regular) 1/4/99 Page 18
SRCC MINUTES (Regular) 1/4/99 Page 19
There being no further business, the City Council meeting was adjourned at 9:55
PM.
JEANNE M. LEONCINI, City Clerk
APPROVED THIS DAY OF 1999
MAYOR OF THE CITY OF SAN RAFAEL
SRCC MINUTES (Regular) 1/4/99 Page 19