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HomeMy WebLinkAboutCC Minutes 2001-10-01SRCC Minutes (Regular) 10/01/2001 Page 1 IN THE COUNCIL CHAMBER OF THE CITY OF SAN RAFAEL, MONDAY, OCTOBER 1, 2001 AT 8:00 P.M. Regular Meeting: San Rafael City Council Also Present: Rod Gould, City Manager Gary T. Ragghianti, City Attorney Jeanne M. Leoncini, City Clerk CLOSED SESSION — CONFERENCE ROOM 201 — 7:00 PM: None. ORAL COMMUNICATIONS OF AN URGENCY NATURE: None. Present: Albert J. Boro, Mayor Cyr N. Miller, Vice -Mayor Paul M. Cohen, Councilmember Barbara Heller, Councilmember Gary 0. Phillips, Councilmember Absent: None 8:03 PM Councilmember Phillips moved and Councilmember Miller seconded, to approve the Consent Calendar, as follows: ITEM RECOMMENDED ACTION 1. Approval of Minutes of Regular Meeting of Tuesday, Minutes approved as submitted. September 4, 2001 (CC) Resignation of Geotechnical Review Board Member Accepted resignation of Duane Butler, Duane Butler, EBA Wastechnologies (PW) — EBA Wastechnologies from the City's File 9-2-26 x 9-3-40 Geotechnical Review Board and directed staff to seek two additional members to replace openings on the Board. 3. Summary of Legislation Affecting San Rafael (CM) — Accepted staff report. File 116 x 9-1 4. Monthly Investment Report for Month Ending August Accepted Monthly Investment Report for 2001 (MS) — File 8-18 x 8-9 the Month Ending August, 2001, as presented. 5. Resolution Granting Waiver of Building Permit and RESOLUTION NO. 10926 — Fire Sprinkler Permit Application Fees for RESOLUTION WAIVING PAYMENT OF Modifications to an Existing 10 -Unit Affordable (Very FEES FOR A BUILDING PERMIT AND Low Income) Housing Project, 7 Mariposa Road FIRE SPRINKLER PERMIT FOR (CD) — File 9-10-2 x 10-2 BUCKELEW COMMUNITY HOUSING DEVELOPMENT ORGANIZATION TO MAKE SEISMIC IMPROVEMENTS AND INSTALL FIRE SPRINKLERS TO AN EXISTING 10 -UNIT AFFORDABLE HOUSING DEVELOPMENT AT 7 MARIPOSA ROAD (ROGERS GREENE APARTMENTS); APN 013-061-12 6. Resolution Approving the Application for Grant RESOLUTION NO. 10927— RESOLUTION Funds from the Roberti-Z'Berg-Harris Urban Open APPROVING THE APPLICATION FOR Space and Recreation Program Under the Safe GRANT FUNDS FROM THE ROBERTI- Neighborhood Parks, Clean Water, Clean Air, and Z'BERG-HARRIS URBAN OPEN SPACE Coastal Protection Bond Act of 2000 for Installation AND RECREATION PROGRAM UNDER of a Skatepark at McInnis Park(CS) — THE SAFE NEIGHBORHOOD PARKS, File 4-13-107 CLEAN WATER, CLEAN AIR, AND COASTAL PROTECTION BOND ACT OF 2000 (FOR INSTALLATION OF A SKATEPARK AT MCINNIS PARK) SRCC Minutes (Regular) 10/01/2001 Page 1 7. Resolution Approving the Closure of Mission Avenue Between C and E Streets on Saturday, October 27, 2001 from 1:00 p.m. to 5:30 p.m. to Accommodate Pedestrian Traffic to the Halloween Haunted Mansion at Falkirk Cultural Center (Lib/Cult.Aff.) — File 11-19 x 9-3-84 8. Report on Bid Opening and Resolution Awarding Contract to Mike Brown Electric Co., in Amount of $39,974.00, re Bellam Interconnect Project, Project No. 046-4610-756-8000 (Bid Opening held on Tuesday, September 25, 2001) (PW) — File 4-1-540 x 11-1 x 11-15 9. Report on Bid Opening and Resolution Awarding Contract to Bauman Landscape, Inc., in Amount of $683,683.00, re East San Rafael Improvement Project Phase IIB, Project No. 046-4610-754-8000 (Bid Opening held on Tuesday, September 25, 2001) (PW) — File 4-1-541 x 11-1 x 11-15 10. Resolution Approving Parcel Map of the Subdivision Entitled "Lands of Richard H. Scettrini & Virginia Scettrini O'Neill 3126 or 173 and Mavis M. Pareto, Trustee D.N. 1999-0018293" and Authorizing City Clerk to Sign Same (PW) — File 5-1-341 SRCC Minutes (Regular) 10/01/2001 Page 2 RESOLUTION NO. 10928 — RESOLUTION AUTHORIZING THE TEMPORARY CLOSURE OF MISSION AVENUE BETWEEN C STREET AND E STREET ON SATURDAY, OCTOBER 27, 2001 FROM 1:00 P.M. TO 5:30 P.M. FOR THE ANNUAL FALKIRK HALLOWEEN HAUNTED MANSION RESOLUTION NO. 10929 — RESOLUTION AWARDING CONTRACT FOR BELLAM INTERCONNECT PROJECT, PROJECT NO. 046-4610-756- 8000 (BID OPENING HELD ON TUESDAY, SEPTEMBER 25, 2001), TO MIKE BROWN ELECTRIC CO., IN THE AMOUNT OF $39,974.00 RESOLUTION NO. 10930 — RESOLUTION AWARDING CONTRACT FOR EAST SAN RAFAEL IMPROVEMENTS PROJECT PHASE IIB, PROJECT NO. 046-4610-754-8000 (BID OPENING HELD ON TUESDAY, SEPTEMBER 25, 2001), TO BAUMAN LANDSCAPE, INC., IN THE AMOUNT OF $683,683.00 RESOLUTION NO. 10931 — RESOLUTION APPROVING A PARCEL MAP ENTITLED "PARCEL MAP — LANDS OF RICHARD H. SCETTRINI & VIRGINIA SCETTRINI O'NEILL 3126 OR 173 AND MAVIS M. PARETO, TRUSTEE D.N. 1999- 0018293", SAN RAFAEL, CALIFORNIA (APN'S 013-111-08 & 013-111-09) (236- 238 Woodland Avenue and 240 Woodland Avenue) AYES: COUNCILMEMBERS: Cohen, Heller, Miller, Phillips and Mayor Boro NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None The following item was removed from the Consent Calendar for discussion, at the request of Mayor Boro: 11. RESOLUTION AUTHORIZING THE MAYOR TO EXECUTE AN AMENDED LEASE WITH EAST SAN RAFAEL LAND COMPANY, LLC FOR PROPERTY LOCATED AT 2350 KERNER BOULEVARD FOR USE AS THE CITY'S CORPORATION YARD (RA) — FILE 2-9-23 x 12-4 x 4-1-535 Mayor Boro announced that Mr. Lee Rosenthal, outside counsel for the Redevelopment Agency, was present this evening and having several questions on this amendment with respect to the issue of the rent on the site, he had requested Mr. Rosenthal to provide an explanatory summary for inclusion in the record. Mayor Boro noted that the City Clerk had distributed an amended Resolution this evening on this item. Mr. Rosenthal stated he had reviewed the amended resolution which he found to be fine. As part of the City's PPP (Priority Projects Procedure) process for approval of projects, Mr. Rosenthal stated that the Faskin Office Project in East San Rafael went through this process two years ago. As part of this process, Faskin offered to lease a parcel of land to the City for use as the City of San Rafael's Corporation Yard, at a rent of $1 per year. Mr. Rosenthal reported that at the time of the approval of the Faskin project, it was expected that Faskin would be under construction before the Corporation Yard; the lease was brought to the City Council and was approved. Mr. Rosenthal explained that Faskin has not yet commenced construction of their office building and do not plan to do so at present because of the downturn in the economy. This summer, the SRCC Minutes (Regular) 10/01/2001 Page 2 SRCC Minutes (Regular) 10/01/2001 Page 3 City went out to bid for the Corporation Yard and is ready to go forward with its construction; therefore, Faskin was approached to sign the lease. Mr. Rosenthal reported that at that time, Faskin indicated to the City that it was not going forward with its building and requested some assurances that the permits would be maintained, at least through the end of next year, in order for them to commence construction of their office building. The City provided a staff letter to that effect; however, the difficulty with this letter is that it does not legally bind the City to those permit extensions. Mr. Rosenthal reported that last week, staff worked with Faskin representatives to attempt to generate a solution which would provide them some assurance that their permits could be extended through the end of next year, while signing the lease now to allow the City to proceed with the Corporation Yard construction. Mr. Rosenthal reported that the solution arrived at, and reflected in the amendment to the lease, is one which provides in essence, for contingent rent. The original concept was that the lease rent would be $1 per year; however, with the present structure of the lease, there is the potential for the City to pay fair market rent in the event one of the following occurs: 1. The City revokes the currently outstanding permits for the project; or 2. The City fails to grant the extensions, assuming Faskin timely applies for them and submits all the information necessary to obtain the extension. Mr. Rosenthal explained that only in these two circumstances would there ever be rent under the lease; he did not believe staff expected the City to revoke the permits or fail to grant the extensions, indicating the extensions could be granted administratively. On first reading the extension and changes section, Mayor Boro stated his concern was that there appeared to be so much emphasis placed on the issue of computing rent, and the inference that the rent may move to $1 per year, he believed to be in reverse and a bad example of some lawyers being paid by the word to write an agreement. Mayor Boro felt it was very detailed and somewhat confusing; however, he appreciated Mr. Rosenthal's clarification for the record, to the effect that the intent is unless the City does not comply with the three items as shown on page 6 of the report, under condition (b), it will meet its obligations and the rent will be at the rate of $1 per year for the next fifty years. Mr. Rosenthal further confirmed that all of the conditions are related solely to the extensions of the permits to the end of next year. Councilmember Miller stated he would favor approval in concept with somewhat of a redrafting of the beginning of the agreement. Mayor Boro stated he appreciated Councilmember Miller's sentiments and had a similar idea; however, having had discussions with both City Attorney Ragghianti and outside counsel for the Redevelopment Agency, Mr. Rosenthal, they had assured him that although the agreement is somewhat convoluted, ultimately it is clear and the City is protected, unless it defaults in one of the three categories. He reported that an attempt was made today to contact the attorney representing the Faskin Trust; however, he was apparently out of town for the week. Mayor Boro stated that in light of this and the fact that the City's project has commenced and needs to proceed, together with the assurances received from Mr. Rosenthal, in particular, he believes the City is protected. Regarding the requirements of the PPP process, Councilmember Cohen stated that as was previously discussed, an allocation would not be permitted to be held indefinitely, and he inquired where the City stands in relation to this. Responding, Community Development Director Bob Brown stated that the PPP condition requires that the project begin construction prior to next January, the project being both the Corporation Yard and the Offices, and that it be diligently continued through completion. He stated that when the Corporation Yard is completed, the offices should be about to be under construction, which staff believes would carry them through approximately the end of next year. Subsequent to that, they would require a further extension. Regarding the concerns on how the lease is worded, Councilmember Cohen stated that if the office market continues to be soft through the end of 2002 and the property owners choose not to construct at that time, supposing another party needed this allocation freed up for a project, he inquired whether the property owners, having conferred this public benefit, could then infer that in this case, the rent would now be the higher figure. Mr. Rosenthal explained that they could not. The extension under the lease is only through the end of 2002; therefore, should a further extension be sought which was not granted by the City, no condition would exist which would result in rent under the lease, as it only applies through 2002. SRCC Minutes (Regular) 10/01/2001 Page 3 SRCC Minutes (Regular) 10/01/2001 Page 4 Councilmember Cohen used the scenario that in the interest of fairness, if the City meets its requirements and the rent is $1 per year; however, the property owners do not find it in their economic interest to build the project until sometime in 2003, he inquired whether they would then be subject to challenge by a third party, in terms of their right to hold onto the trips necessary to build their office portion of this project, or whether they are putting that at risk. Responding, City Manager Gould stated that the Faskin Trust has indicated it will doubtless take a little over a year to construct the office project; therefore, to delay until the end of 2002 to obtain the permits and construct during 2003, they believe the office market will have stabilized and probably will have returned to its previous health. He announced that Bruce Jones, the developer of the project, was present and could expand on this. As to the legal consequences of going beyond 2002, Mr. Gould stated he would defer to the attorneys; however, he believed their entitlements would then become in jeopardy. Councilmember Cohen confirmed with City Manager Gould that the property owners had been cautioned about this possibility, giving them fair warning. He added that at some point, it is the developer's responsibility, the City having adhered to its commitments. City Manager Gould stated that the lease makes no commitment to representations concerning the state of the office market in Marin. To confirm Mr. Rosenthal and Mr. Gould's statements, City Attorney Ragghianti stated he had spoken at great length with the Planning Director with regard to this issue and believed page 6 (b) (ii) should be focused on. He stated that as indicated by Mr. Rosenthal, the extensions sought and agreed to by the Council in connection with the said lease, extend through 12/31/02. He indicated there may be other extensions applied for; however, Council agrees this evening only to this. Having been invited by Mayor Boro to address the Council, the Applicant's representative declined. Councilmember Cohen moved and Councilmember Miller seconded, to adopt the revised Resolution. RESOLUTION NO. 10932— RESOLUTION AMENDING RESOLUTION NO. 10717 TO APPROVE AND AUTHORIZE THE MAYOR TO EXECUTE A REVISED GROUND LEASE WITH EAST SAN RAFAEL LAND COMPANY, LLC, FOR PROPERTY LOCATED AT 2350 KERNER BOULEVARD, FOR USE AS THE CITY'S CORPORATION YARD AYES: COUNCILMEMBERS: Cohen, Heller, Miller, Phillips and Mayor Boro NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None SPECIAL PRESENTATIONS: 12. INTRODUCTION OF POLICE PROMOTIONS AND THREE (3) NEW POLICE OFFICERS: (PD) — FILE 9-3-30 Police Chief Michael Cronin stated it was his pleasure to introduce the latest employees in the Police Department, in what is seen as a continuing long-term effort to obtain the best people to provide the best service. Introducing Tristan Piano, Chief Cronin stated he is the newest member of the Cadet program, is currently attending Sonoma State, resides in Sonoma County and aspires to becoming a Police Officer. Christian Diaz, a native of Sydney, Australia, attended high school and business school there, is fluent in Spanish and English, was employed in the insurance industry and advertising before coming to San Rafael, and also hopes to become a Police Officer. Chief Cronin stated that new Police Officer, Justin Graham, graduated from the Police Academy in Two -Rock in May, 2001, and had been employed in Loss Prevention Security at Macy's, as one of their lead people. New Police Officer Eric Vera, recently from the Marine Corps, also attended the Two -Rock Police Academy, graduating in December, 2000. Eric is fluent in Spanish and English, was most recently employed in loss prevention in Sonoma and resides in Sebastopol. Police Chief Cronin stated that Jimmie Williams, new Police Officer, comes from the Alameda Police Department, was a reserve Police Officer in Davis and resides in Alameda with his wife, who is a dispatcher, and daughter. SRCC Minutes (Regular) 10/01/2001 Page 4 SRCC Minutes (Regular) 10/01/2001 Page 5 Introducing the new Police Department promotions, Police Chief Cronin stated that Alan Piombo has been employed in the Police Department for approximately ten years and recently completed an undergraduate program at St. Mary's. Chief Cronin was pleased to promote Alan to Corporal. Police Chief Cronin stated that Richard Clary, promoted to Corporal, has been with the San Rafael Police Department since September 8, 1981, twenty years, is recognized as a leader and has been recognized as such by his peers for a number of years. He indicated that Rick spent a long time on the City's Canine program and probably holds the most successful record in the County as a dog handler. Wanda Spaletta, promoted to Sergeant, has been with the San Rafael Police Department for ten years, and Police Chief Cronin was pleased to announce that Wanda is the first female Sergeant in the Police Department's history. He indicated she would not be the last and looked forward to her continued success. Concluding the Police Department promotions, Chief Cronin introduced Christopher Coale, promoted to Sergeant. Chris, a San Rafael native, joined the Police Department on March 29, 1999. He was a supervisor in Pinole and has done very well in San Rafael. Remarking on Chris' haircut, Chief Cronin stated that he and another officer in the department were involved in a program called "Buzz the Fuzz", a fundraiser for children with cancer, the proceeds of which go to "Make a Wish Foundation". He reported that Chris and the other officer raised almost $2,500. Mayor Boro thanked Chief Cronin for the presentations and congratulated the new recruits, new officers and those who had been promoted, stating they are the people who make San Rafael the best and the City is very proud of them. PUBLIC HEARING: 13. Public Hearing — CONSIDERATION OF ARCHAEOLOGICAL RESOURCE PROTECTION ORDINANCE RE NEW REGULATIONS AND PROCEDURES FOR PROTECTION OF ARCHAEOLOGICAL RESOURCES. CERTAIN LANDS AND GEOGRAPHIC AREAS WITHIN THE CITY OF SAN RAFAEL CONTAIN SIGNIFICANT ARCHAEOLOGICAL RESOURCES, WHICH INCLUDE DEPOSITS AND REMAINS LEFT BY THE LOCAL NATIVE AMERICANS AND OTHER EARLY INHABITANTS. WITHOUT PROPER REGULATIONS AND MONITORING, CONTINUED EXCAVATION AND GRADING COULD SIGNIFICANTLY IMPACT THESE RESOURCES; CITY OF SAN RAFAEL, APPLICANT (CD) — FILE 10-6 x 10-2 Community Development Director Bob Brown stated that Mr. Bill Tuikka would present the item. Bill Tuikka, Current Planning, stated this is a proposed Ordinance which establishes procedures and regulations for the identification and protection of archaeological resources, noting he would present a brief history of the process and the archaeological consultant, Mr. Bill Roop would expand on some of the technical details. Mr. Tuikka reported that several years ago, staff initiated the preparation of this ordinance in order to establish an improved tracking process to ensure that archaeological resources are identified early in the development review process. Staff also wished to provide enhanced information and direction to property owners and developers to ensure awareness of potential archaeological resources on their property and also to provide improved communication and a more formal process with the local Native American representatives. Mr. Tuikka stated that in the beginning of the process, staff researched other communities to ascertain what methods were being used to protect and identify resources, and discovered that: 1. Most cities have adopted firm General Plan policies which address the need to protect archaeological resources; and 2. Some cities have prepared resource maps identifying geographic areas of archaeological sensitivity. Staff also found that in many cases, these maps have been incorporated into their General Plan resource map inventory and used to determine whether an archaeological study was required for development projects. Mr. Tuikka reported staff ascertained that although some communities had adopted specific procedures and regulations for identifying these resources, few communities have SRCC Minutes (Regular) 10/01/2001 Page 5 SRCC Minutes (Regular) 10/01/2001 Page 6 actually adopted ordinances specifically addressing archaeological protection, as is being done here. Mr. Tuikka indicated that most cities in Northern California utilize the Northwest Information Center at Sonoma State University as a resource to obtain information on known or studied cultural resources. This center serves as a depository for all cultural resource reports prepared throughout Northern California and makes site specific resources available to agencies for use in environmental review. Having consulted with the City Attorney and reviewing the California Environmental Quality Act (CEQA) guidelines which address archaeological resources, staff developed procedures and regulations to be adopted, and referred to in a new Municipal Code Chapter 2.19. Mr. Tuikka stated that in order to achieve this, the following tasks were completed: 1. Entered into an agreement with the Northwest Information Center to participate in the project review program. This agreement allows the City, for a $40 fee, to consult with the Center when a development project is proposed in an area where there is a known or recorded site. The information is used by City staff to complete the environmental review. 2. The Federated Indians of Graton Rancheria were also contacted in mid 1999 to receive input on the process and they have been apprised of progress throughout the project. Mr. Tuikka reported that subsequently, staff prepared an archaeological resource sensitivity map, included in this evening's packet, to replace that currently on file which is over twenty years old. Mr. Roop, Archaeological Resource Service, was then hired by the City to prepare this map, which could be explained further by Mr. Roop, should Council deem it necessary. The new map depicts three levels of sensitivity and Mr. Tuikka explained: ■ The pink, or high sensitivity, indicates that archaeological resources have been recorded on or near the site and that an archaeological evaluation has been prepared and is on file at Sonoma State; ■ The yellow areas, or moderate sensitivity, indicate that archaeological resources are likely to be found in the area and that no previous evaluation is on file at Sonoma State; ■ The green, or low sensitivity area, indicates that archaeological resources are not likely to be found on the site. Mr. Tuikka stated that the map is parcel based, explaining that should a resource be found on one portion of a particular parcel, the whole parcel would, for example, be in the pink area so as not to disclose the exact location of the resource. He indicated that a paper distributed this evening contains the details of how the sensitivity levels were established and having evaluated this, should Council require further information, Mr. Roop could explain the concept. Mr. Tuikka stated that the map will be used in completing an environmental review on projects and advising owners of the sensitivity status of their property, as the map will be part of the public record. Finally, Mr. Tuikka stated procedures and regulations were prepared which will be referred to in the new Municipal Code Chapter 2.19 and incorporate staff reliance on the map, consultation with the appropriate agencies and the requirement for preparation of archaeological studies in certain situations. Staff will also incorporate standard conditions and handouts for the public to acquaint them of resources and appropriate steps to be taken in the event resources are discovered during construction. He stated that staff is available to answer questions and explained that Mr. Roop's qualifications are also included in tonight's packet. Councilmember Cohen commented on the fact that two letters were received by Council this evening, one from the Federated Indians of Graton Rancheria and the other from Archaeological Resource Service, and he requested that Mr. Tuikka summarize as to whether there has been further discussion on the issues raised in these letters. Responding, Mr. Tuikka stated that these letters had been submitted for the Planning Commission meeting in July and no further communication has taken place with the Federated Indians of Graton Rancheria. Councilmember Cohen confirmed with Mr. Tuikka that the Federated Indians of Graton Rancheria had written to the City and the City requested that Mr. Roop comment on this letter. In response to Councilmember Cohen's inquiry as to whether the City replied to the letter, Mr. Tuikka stated this was done orally at the Planning Commission meeting, and a copy of Mr. Roop's letter was forwarded to them. SRCC Minutes (Regular) 10/01/2001 Page 6 SRCC Minutes (Regular) 10/01/2001 Page 7 Referring to page 1 of the staff report, specifically, the paragraph pertaining to the applicant/inquiring party being provided with a record of the City's search of the data base in High and Medium Sensitivity areas, Mayor Boro inquired if the Low Sensitivity areas are also to be included in the search. Responding, Mr. Tuikka stated staff was instructed by the Planning Commission to provide a report for any parcel where there was an inquiry, and has the ability to so do on all levels of sensitivity. William G. Roop, Archaeological Resource Service, stated he did not have a formal presentation; however, he could describe anything requested. Mayor Boro suggested that anything relevant which Mr. Roop could append to Mr. Tuikka's presentation would be helpful. Mr. Roop indicated that when the process was initiated, they went to the regional office and gathered copies of every archaeological site and report available. They also perused their own files and since these were running several months behind in posting new information, a lot of the more recent information they acquired from other sources. Mr. Roop stated they also checked with local resources at the library and the historical societies and have gone through steps to place as much information as possible into the data base, which has been set up so that by simply entering a parcel number, a one-page report can be generated for any applicant. This information is designed to be distributed to the public. He further reported that the state has placed a limitation on the identification of the exact location of archaeological sites; therefore, he could not furnish the exact location of the existence of an archaeological site. He could, however, indicate whether one exists within a given parcel. Regarding the Federated Indians of Graton Rancheria's letter, dated July 1, 2001, Councilmember Heller stated Mr. Roop answered the seven points; however, she was unsure if he had addressed the last paragraph which states "The tribe disagrees with the designation of `Low Sensitivity' for sites that were `mass -graded `. These sites were probably developed prior to the enactment of CEQA and/or other relevant state or federal laws which would have required a closer examination of the area." Mr. Roop stated he did not completely understand that question since it was not a criteria for "Low Sensitivity". Should an area be subject to mass -grading and had an archaeological report on file which indicated there was no archaeological site in the parcel, it would get a "Low Sensitivity" designation. However, if there was a report indicating the presence of an archaeological site and this was the only information available, even if it were the bottom of a quarry now, it would still be "High Sensitivity" until it was evaluated and deemed not to be a concern. Regarding the Federated Indians of Graton Rancheria's questions, Councilmember Heller requested clarification that these had been answered at a Planning Commission meeting. Responding, Mr. Tuikka reported that several representatives from the tribe were present at the Planning Commission meeting and in addition, Mr. Roop's response was forwarded to their office in Novato, subsequent to the Planning Commission meeting. No further communication has been received since that time. Mayor Boro declared the public hearing opened and there being no response from the audience, Mayor Boro closed the public hearing. The title of the Ordinance was read: "AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL ENACTING NEW CHAPTER 2.19, ARCHAEOLOGICAL RESOURCE PROTECTION, OF THE SAN RAFAEL MUNICIPAL CODE TO ESTABLISH MEASURES TO IDENTIFY, PROTECT AND PRESERVE ARCHAEOLOGICAL RESOURCES IN THE CITY OF SAN RAFAEL" Councilmember Miller moved and Councilmember Heller seconded, to dispense with the reading of the Ordinance in its entirety and refer to it by title only, and pass Charter Ordinance No. 1772 to print by the following vote, to wit: AYES: COUNCILMEMBERS: Cohen, Heller, Miller, Phillips and Mayor Boro NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None Councilmember Miller moved and Councilmember Phillips seconded, to adopt the Resolution. RESOLUTION NO. 10933 — RESOLUTION APPROVING PROCEDURES AND REGULATIONS FOR ARCHAEOLOGICAL RESOURCE PROTECTION IN THE CITY OF SAN RAFAEL AYES: COUNCILMEMBERS: Cohen, Heller, Miller, Phillips and Mayor Boro NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None SRCC Minutes (Regular) 10/01/2001 Page 7 SRCC Minutes (Regular) 10/01/2001 Page 8 OLD BUSINESS: 14. REPORT ON VOLUNTARY FAIR RENTAL PRACTICES (RA) — FILE 13-16 x 13-7-1 Senior Development Specialist, Stephanie Lovette, prior to presenting this item, announced that the acquisition of 55 Fairfax Street with BRIDGE Housing was finally closed. This is a 40 -unit building and BRIDGE Housing now owns 66 units in the Canal, with approximately 169 units owned by non- profit organizations in the Canal District. Ms. Lovette stated that at the Council Meeting of September 4, 2001, the first report on the Voluntary Fair Rental Practices Agreement was presented, with representatives from the property owners, Mediation Services and the Tenant Organization in attendance. She indicated that at that meeting, Council requested follow-up information on three specific items: 1. Clarification on the number of rental units potentially covered by the Fair Rental Practices Program (FRPO); 2. The status on notifying the tenants regarding their landlords' participation in the FRPO program; 3. Information regarding specific outcomes of complaints received by Mediation Services. She reported that in the last month, staff and the property owners have worked very hard to develop a data base of all of the rental properties in San Rafael. There are approximately 9,000 rental units, per the census, which include both single-family homes and apartments and does not include mobile homes. 6,100 units contain four or more units in residential areas not part of mixed use projects and this figure was verified by information received from the Assessor's Office and from the property owners. Ms. Lovette indicated there are approximately 400 properties which meet this category. Of the 6,100 units, 2,300, approximately 37%, are involved in the FRPO program and she stated Mr. Michael Burke would provide information this evening expanding on the specifics. Ms. Lovette thanked the property owners for saving staff a tremendous amount of work by putting together an Excel Spreadsheet. Ms. Lovette reported that the owner representatives, the FRPO Group, funded and distributed a notice to all of the FRPO property owners last week, signed by the Mayor and the property owners' organization, thanking them for their participation in FRPO and requesting that they post the notices. Ms. Lovette stated that staff assumes these notices will be posted in the next several weeks; however, staff has not confirmed this. She indicated that another mailing, also funded by the property owners, will be going out to all of the tenants in San Rafael, informing them of the FRPO program and the Mediation Services program. This notice should be distributed in the next couple of weeks and the property owners are presently in the process of carrying out some fundraising for this purpose, the cost of which is anticipated to be in the region of $1,500. Regarding the outcome of the complaints received by Mediation Services, Ms. Lovette stated that at the time of the last Council Meeting there were 54 complaints; a further 21 had been received to bring the total to 75. Of these, only two concerned FRPO owners and did not relate to information covered in the Agreement, rather they addressed garbage collection and a lease dispute. Based on the information received from the Tenant Organization at the last meeting, and their concern as to whether all callers were being notified of the Tenant Organization and the FRPO program, Ms. Lovette indicated that Mediation Services now furnishes information regarding both programs, whether or not the information is specifically requested. She indicated that there were four requests for mediation, three of which did go into mediation with successful conclusions, and attempts to arrange a mediation for the fourth are ongoing. Ms. Lovette stated that both the property owners and tenant organization representatives were present this evening. With regard to the section on the number of units, Councilmember Cohen indicated his appreciation for the clarification and assistance. With the targeted type of rental housing being confined to those units not part of mixed use property and given what has been done to encourage mixed use properties, particularly in and around the downtown, he inquired why it would not be desirable to at least explore whether these property owners could be persuaded to participate in this program. SRCC Minutes (Regular) 10/01/2001 Page 8 SRCC Minutes (Regular) 10/01/2001 Page 9 Ms. Lovette indicated that some of these property owners did sign up for the FRPO program; however, concern was expressed at the last meeting by the tenant organization that it was confusing as to whether or not some commercial properties were being included. She stated this has been done by use code on the assessor's list; therefore, the numbers and buildings of these mixed use properties are available to staff. Councilmember Cohen stated he could not see why rental housing of four units or more, whether part of a mixed use project or not, was not included, provided the units in question were clearly identified as rental housing, not the commercial spaces. Reiterating the fact that mixed use is being encouraged in the downtown, he believed the rental apartments should be treated similarly to those not part of mixed use. Councilmember Cohen stated it appeared from the staff report to be a policy, noting that the targeted type of rental housing for this voluntary effort are buildings with four or more units not part of a mixed use property. He did not recall this being the policy and requested that it be clarified to include those numbers, both in the total and in the numbers which have signed up. Ms. Lovette pointed out that non profits and anything with tax exempt status are not included, mixed use or not. With regard to the notification, Councilmember Cohen confirmed that the letter being distributed to tenants will go to all those residing in units targeted by this program, including mixed use, and not solely to those where landlords have already signed up for the program. Responding to the inquiry of whether there would be one or two letters, Ms. Lovette stated it would be necessary to meet with the property owners to further discuss this issue. She indicated that it is somewhat more expensive to have the mailing house divide the two; however, she believed the decision had not been made at this point in time. Recognizing that it would be more expensive, Councilmember Cohen stated it would be somewhat more effective if the letter specified whether or not the particular property owner had already signed up. He believed it would be beneficial to those property owners who had signed up, for their tenants to receive a letter indicating the existence of the program and their landlord's pride in being part of it. City Manager Gould stated this would be staff's preference. Councilmember Cohen commented that those who had not signed up might not be thrilled with their tenants receiving a letter indicating the existence of the program they were not part of; however, this was of less concern to him. In terms of the letter itself going out, Councilmember Miller inquired whether the courtesy had been extended to the tenants' organization for review since they are advocates for the renters. Ms. Lovette stated the courtesy will be extended when staff has had the opportunity of reviewing the letter. Councilmember Miller stated that the other area of concern to him was the information system; he was interested in knowing the dissemination of complaints and inquired if there was a mechanism in place to close the loop by following up on the destination of the complaint and the resultant action. Responding, Ms. Lovette respectfully suggested that when the next report is done, staff would request a report from both the FRPO owners and the tenants' organization concerning the number of complaints actually received by them. She stated that presently, callers are always given the option of both the FRPO and tenant organization telephone numbers; however, subsequent action is not reported back. While understanding this, Councilmember Miller stated he was attempting to close the loop in order to determine the finished product. Councilmember Phillips expressed appreciation for the additional effort in the report. Regarding goals and objectives, he noted staff would report back on December 17, 2001 and he was curious in terms of the expectation. Of the 6,100 units of the type targeted, Councilmember Phillips noted 37% had signed up so far, constituting approximately 2,300 units, and he inquired what the goal or parameter was with regard to signing up the balance of 63%, or almost two-thirds of the units. City Manager Gould stated that although it does not represent Council policy, he had suggested to the representatives of the FRPO owners that it would indicate tremendous good faith and zeal to have more than half of the apartment units in San Rafael covered under the Fair Rental Practices Guidelines. He believed that at 37% and climbing, growth was being shown and he would be delighted to be in a position to report at one of the quarterly presentations, on having over half of the units in San Rafael included in this program. Mayor Boro suggested that perhaps Mr. Burke, Realtor, could explain an achievable goal. Michael J. Burke, Real Estate Agent, Frank Howard Allen Realtors, specializing in the sale of apartment buildings in Marin and Sonoma counties, stated that the Voluntary Fair Rental Practices SRCC Minutes (Regular) 10/01/2001 Page 9 SRCC Minutes (Regular) 10/01/2001 Page 10 concept is working: Because of the large number of San Rafael apartment owners who have signed on and because of the current economy; Owners are placing notices indicating their involvement in the program, while providing the special Mediation Services telephone number to tenants should they have concerns, questions or complaints; and Volunteer property owners are now in place to contact owners who have received complaints against them through the Mediation Services number. Mr. Burke indicated that when the volunteer program was first presented to the City, approximately 15% of the City's apartment properties were signed on, a very impressive number at the time; however, thanks to the voluntary efforts of many people, that number has grown significantly. He reported that as of the date of the staff report, 150 verified San Rafael apartment building owners had signed on as Fair Rental Property Owners and from a total of 400 apartment buildings in San Rafael, this represents over 37%. Since last week Mr. Burke stated he received additional signatures, to bring the present total closer to 40%. Mr. Burke thanked California Land Title Company of San Rafael for their help in creating the data base of the targeted group of apartment buildings containing 4 units or greater, which was verified by the City against the tax rolls provided by the County. Mr. Burke stated that previously reported numbers to the City Council included over 60 additional properties that had signed on but were not in the targeted group, and these include single-family, duplex, triplex and mixed use buildings. The 37-40% figures being reported this evening are only those owners who have signed on their buildings in the targeted 400 group. On again becoming involved in the sign-up process approximately six weeks ago, Mr. Burke reported that a property owner contacted him seeking his advice. The property owner had received Mr. Burke's letter concerning the Fair Rental Practices concept, which he wished to support; however, he was concerned at having allowed his rents to become far behind market. He was about to issue a rent increase which would have been above 10% and did not know what to do; they evaluated the cost to him to cut back the increase and spread it out over two years. Mr. Burke indicated that given the number of owners now supporting the program, this property owner did not wish to be the one to make newspaper headlines as the greedy landlord, and concluded that the Fair Rental Practices concept was more valuable in the long run than the money he would lose by not bringing his rents to market all at once. Mr. Burke reported on having received a further call in the past week from an owner who was about to take an extended vacation. She had signed up and was proudly posting the notice he had forwarded to her; however, she was concerned that good friends of hers, also San Rafael apartment owners who had been away, had not been receiving Mr. Burke's letters. This owner furnished Mr. Burke with the home telephone numbers, email addresses and scheduled date of return, in order for him to contact these owners informing them of her support and her encouragement to them to sign on. Mr. Burke indicated that it will never be possible to sign up all owners; however, many already follow the Fair Rental Practices concept, and always have, albeit not wishing to sign a form. The number of sign-ups has reached a point, however, where it is beginning to put pressure on those who have not signed on. With the placement of notices on properties by owners identifying them as proud sponsors of the program, with their participation indicated in advertisements and for rent signs and as the newspapers begin to report the large number of owners who have become Fair Rental Practices Owners, Mr. Burke anticipated that tenants will seek out these properties to rent. To correct some misconceptions, Mr. Burke stated that the staff report lists him as the owners' group representative; however, he is not. He indicated that there is no organized group representing San Rafael apartment owners, merely a few volunteers attempting to obtain signatures from 400 separate and different entities. He considered many of the owners clients, many seek his advice and counsel; however, neither he nor anyone else could speak on behalf of all or any great majority of the owners. Mr. Burke reported that the Fair Rental Practices began with a group of approximately 40 apartment owners meeting to generate a response to the City of San Rafael's request for ideas to resolve the concerns of rapidly rising rents. Speaking before this group of owners, Tom Bannon of the Statewide California Apartment Association (CAA) in Sacramento, suggested a concept which had been used successfully in other cities in California, which was the idea of owners voluntarily agreeing not to raise rents by more than 10% annually. Mr. Burke indicated that the owners present embraced that concept and a small group of volunteers met to draft the actual document. At SRCC Minutes (Regular) 10/01/2001 Page 10 SRCC Minutes (Regular) 10/01/2001 Page 11 a subsequent meeting of an approximately similar number of owners, the draft document was given support, signed by those present and presented to the City, together with whatever other signatures could be obtained. In addition to the letter sent by Mayor Boro, thanking the owners who had signed on and providing them with a copy of the notice they could post, Mr. Burke stated he had forwarded an additional copy of the notice to the owners, encouraging them to proudly display it in a prominent position in their buildings. Mr. Burke reported that one of the supporters of the program has been the long established Marin Income Property Association (MIPA), the local chapter of the California Apartment Association. Their Board of Directors and many of their members have been and continue to be helpful in gaining support for the program. Mr. Burke stated that most importantly, last week at their Board of Directors meeting, they agreed to be the recipient of and to follow up with property owners who have received complaints against them through the special Mediation Services number. They have a rotation list of people for telephone calls and follow-up. Mr. Burke stated that the Fair Rental Practices concept is also working because of the current economy; rents are not rising at the same rate as a year ago when the first public meetings were held. He indicated that market rents which were rising at rates of above 10% annually are now flat, and in some cases falling, and the number of "for rent" advertisements countywide, is almost three to four times that of a year ago. Mr. Burke cautioned, however, that rents will still rise as many owners have always followed a program of Fair Rental Practices and have allowed their rents to fall significantly below fair market value. In conclusion, Mr. Burke stated it was not his belief, given current market conditions, combined with the pressure of so many signing on to become Fair Rental Practice Owners, that anyone could conceive of raising rents now at the rates which first brought this issue to the City's attention. Mayor Boro inquired whether Mr. Burke, as a volunteer, wished to speculate on the question raised by Councilmember Phillips as to what he would deem a realistic goal to be. Responding, Mr. Burke stated that at initiation, 50% was arbitrarily targeted as a very high goal; however, he believed it would definitely be met; albeit persuading 50% of people not organized in any fashion to sign one document is not an easy task. He indicated that the document was carefully worded, to the best of their knowledge, to avoid individual negotiations and changes and he saw the success achieved to date as beyond expectations. Coleman Persily stated that from the report this evening, it was apparent two-thirds had not been contacted and in addition, many of those who had been contacted had already received their increases, hence, they agreed to sign. He did not believe this to be a means of stopping rent increases; however, he did believe there were sincere efforts to attempt to achieve this without the adoption of an Ordinance. Mr. Persily stated the rents are very high and something more should be done other than attempting to sign up landlords and informing tenants that landlords are nice people. Mr. Persily believed that with all the rent increases which have taken place, the City Council should initiate a roll back, at least from the inception of these discussions. He proposed rolling back the rents to those of six months ago, for tenants whose rents have increased so dramatically. He commented that while the voluntary idea would continue, it would not do any good and sincerely believed Council should give this some serious consideration, lest San Rafael should become so unaffordable. Dorothy Vesecky, 400 Canal Street, San Rafael, stated she received a copy of the report late this afternoon. She had a similar question to Councilmember Cohen's with regard to why mixed use apartments were not included, believing they should be. She indicated that perhaps, there was some confusion in that one landlord who had formerly rented out office space as apartments was listed on the initial group. Ms. Vesecky stated the 37% figure would need to be reworked when mixed use was taken into consideration. She suggested a specific letter be sent to tenants whose landlords have signed the agreement and made two suggestions for its drafting: 1. That it include a space for the date on which each landlord signed the agreement, to facilitate tenants in verifying whether or not they received a rent increase in the intervening period; SRCC Minutes (Regular) 10/01/2001 Page 11 SRCC Minutes (Regular) 10/01/2001 Page 12 2. The letters to the tenants already affected by the agreement be mailed as certified letters, to facilitate tracking of those tenants actually following through. Responding to Ms. Vesecky's question, Ms. Lovette stated the landlords would fund the cost of the letter; they also absorbed the cost of the first one. Responding to Ms. Vesecky's remarks concerning Mr. Burke's inference that some of the tenants had already been notified, Mayor Boro clarified that staff indicated the letters had not gone out and in fact, have not yet been approved. Ms. Vesecky formally requested that staff reports on this issue be forwarded to her in future and stated she agreed with Mr. Persily's entire comments. Klaus Werner stated he was one of the volunteers who agreed to call the property owners in San Rafael and from a list of 35 owners, had made 29 telephone calls. He indicated that some of the owners who had signed up were not in agreement, others were not willing to sign, their concerns relating mainly to the fact that their rents were far below market rate and they did not wish to be limited to 10%. He stated that other owners were concerned about improvements they planned to undertake. Mr. Werner stated his group was attempting to sign up as many property owners as possible and he urged the City Council not to make rash decisions. Len Rifkind, local attorney practicing real estate, land use and landlord/tenant law, stated his family owned several units in San Rafael and are Fair Rental Practices Owners. He stated that they historically have complied with most or all of the FRPO provisions before its inception, believing it to be fair and good business practice. He indicated that they maintain their units in first class condition and rarely, if ever, in his memory, have given an existing tenant more than a 10% increase in any single year. Mr. Rifkind stated they have many senior tenants on fixed incomes who have been tenants for decades and whose rents are far below market and will remain so, given their ability to pay, and he pointed out that there are many other owners present this evening and throughout the City of San Rafael, who could corroborate this. He believed most landlords are people who care about their investment and provide good housing stock to their tenants, and most tenants take care of their units and pay their rent; however, problems always exist within all groups. Mr. Rifkind considered the issue facing the Council is whether or not the present system works, whether something radically different needs to be done, or opt to follow the voluntary FRPO suggested. He believed the evidence presented thus far appears to indicate it is beginning to work, and recalling Councilmember Miller's excellent question on closing the loop, he stated that Mediation Services indicated that of the complaints received over the last few months, only two were FRPO owners, and neither of these related to rent increases. He believed Council was on track by continually monitoring the system and giving it a chance to work. With regard to a rent stabilization ordinance which tenants appeared to be clamoring for, Mr. Rifkind stated that professionally he has some experience with this type of ordinance and would like to raise some points relevant to associated problems. Mayor Boro stated that rent control was not a subject of debate this evening, although it could be a subject for a future meeting, and while appreciating Mr. Rifkind's comments, tonight's purpose was to receive an update on the program in place. He indicated that should this point be reached, Mr. Rifkind would certainly be heard. Mr. Rifkind thanked Mayor Boro. Al Aramburu, Marin Association of Realtors, stated he had been staffing this function on a voluntary basis. Relative to the report, Mr. Aramburu thanked staff for working in a cooperative fashion, noting Michael Burke had done a tremendous job in building the database. Mixed use properties could be included and they would evaluate the idea of two different letters; however, to use certified mail for 6,000 letters would cost a prohibitive $1,000. He favored a political flier type mailing, i.e., a three- fold which would be distributed in leaflet form in English and Spanish. He would welcome staff's assistance in redesigning the letter; however, enhancements would raise the cost to some $2,000 - $3,000, growing exponentially; therefore, private resources would be required to fund it. Mr. Aramaburu believed the landlords had been beleaguered in this issue and pointed out they are taxpayers and good citizens of this community. They had been difficult, and easy, to deal with on occasion; however, he stated this is the universe of humanity and in more than two months of operation, only two complaints had been received against FRPO owners, neither of which was related to rent. Giving a quick course in Spanish, Mr. Aramburu stated that "reparar" is the infinitive to "fix" or "repair"; "lamentar" is the infinitive to "complain", and he urged all to try to "reparar" things instead of "lamentar" about things. SRCC Minutes (Regular) 10/01/2001 Page 12 SRCC Minutes (Regular) 10/01/2001 Page 13 He stated that for him to really circulate this information, he would go out with a staple gun and 400 leaflets and merely staple them up. He found it somewhat difficult to believe in this era of communication, that people have not disseminated the information, and this he considered to be a smoke screen. Councilmember Cohen thanked Mr. Aramburu for his continued participation in the process, extending this also to Mr. Burke and others who had spoken. He indicated that Mr. Aramburu had answered some of his concerns this evening concerning persistence, recalling having expressed some concern last month of the impression this was merely a response each time there was a Council Meeting; however, sustained attention was now being demonstrated, which he appreciated. Councilmember Cohen stated he understood it was an amorphous group attempting to get this group of individuals to function together and he appreciated the efforts. Councilmember Cohen stated the point is well taken regarding only two complaints received in connection with FRPO owners, neither of which related to rent increases, and he believed this speaks to the need to attempt to raise sign-ups to 50%, increasing the pressure on those not participating to do so, which would assist in helping to drive down the other 73 complaints received. He commended the efforts thus far and urged their continuation. With regard to the mailing, Councilmember Cohen inquired whether it was possible to do two separate letters, one to tenants in those buildings where the property owner has signed the agreement and the other where the agreement has not been signed. Responding, Mr. Aramburu stated this could be done and essentially, he was speaking to a draft prepared by Mr. Burke, indicating that many apartment owners had recently volunteered to follow FRPO and outlining the four basic principles. He stated there was a FRPO process which identifies building owners who had chosen not to participate; however, tenants were informed that remedies were still available from Mediation Services. Councilmember Cohen stated that while not attempting to write the letter at this evening's meeting, he would encourage using language to the effect that the particular property owner has "not yet" as opposed to "chosen not to". He believed the letter should leave the door open to future signups and would appreciate Mr. Aramburu and those with whom he is working giving serious consideration to doing this. Mr. Aramburu stated that it may not be clear in people's minds that Mayor Boro and he signed a letter, in English and Spanish, which was forwarded to all of the FRPO owners, thanking them for their participation. Councilmember Cohen stated he appreciated this having been done and Council had received a copy of the letter. Regarding the issue of certified mail and the concern relating to an assurance that the letters had actually gone out, Mayor Boro inquired how, other than certified letters, we can be assured the mailings will be done. Ms. Lovette stated a guaranteed mailing service is being used and an affidavit that the mailing went out can be requested. This will be a bulk mailing specifying individual tenant apartment numbers. She indicated there have been concerns in the past that the post office does not deliver these, as they should; however, there was not much that could be done about that. Mayor Boro stated there is now a brand new postmaster, indicating he has not yet gotten to know him as well as his predecessor; however, he has regular dialogue with the post office on their service. This new postmaster will be sworn -in in approximately a week and Mayor Boro suggested that, in his absence, a Councilmember attend this event to emphasize the importance of this particular document and alert the post office of the mailing date. Councilmember Cohen commented that he did not believe certified mail was necessarily justified, rather a statement from the guaranteed mail service would suffice. He thought perhaps it would be advantageous to speak with the postmaster; however, as he does a lot of bulk mailing himself, he is aware that if the address of the complex and number of the apartment are listed, they are required and obligated to deliver it. Mayor Boro stated it would not hurt to inform the post office that this is a very important piece of mail and it is essential it gets out. Certification should also be obtained from the mailing house. Dorothy Vesecky stated they encountered real problems with a similar mailing on the survey for the Pickleweed Park Expansion where it was necessary for her to return and hand deliver some, having found them in the wrong place. Instead of a mass mailing, she questioned why the letters could not be provided to each landlord to personally mail out first-class. Mayor Boro stated this could be considered; however, unless someone wished to specify differently, he believed the sense of the Council was to obtain a certification from the mailing house and also an assurance from the post office that they would be delivered. Mayor Boro thanked the staff, property owners, Mr. Burke, and in particular, Mr. Aramburu, for their SRCC Minutes (Regular) 10/01/2001 Page 13 SRCC Minutes (Regular) 10/01/2001 Page 14 work and stated that although a lot had been achieved, there was still some way to go. He believed the numbers would drop when the other units were included, and anticipated 50% as a minimum show of good faith, and with the efforts to date, success was apparent. He indicated that staff would return with this item at the City Council meeting of December 17, 2001. With regard to the ongoing improvement in information gathering from Mediation Services, Councilmember Cohen stated that as well as reporting the number of complaints received, he would be interested in seeing some tracking or follow up of where the complaints were routed and obtain some sense of the outcome, whether resolved or otherwise. City Manager Gould stated it should be clear that when this program was proposed, Council directed that the rental situation in San Rafael be monitored very closely to ascertain whether the voluntary program was having an effect. It was believed that an independent non-profit was necessary to carry out the monitoring. He indicated that the central purpose of the contract with Mediation Services is primarily for monitoring and where there is interest in mediation, this service is also made available. He reiterated Ms. Lovette's comments that all callers are being apprised of the existence of a landlords' association and tenants' organization, in order for them to avail themselves of additional services. Mr. Gould noted staff had committed, that with the quarterly reports both groups would be requested to detail the number of referrals received and the action taken; however, the person making the complaint to Mediation Services is the key actor, in that he or she has to decide its destination. Mr. Gould stated the primary purpose was to monitor and provide periodic reports to the City Council. While not expecting Mediation Services or anyone else to know the ultimate disposition of all 75 complaints, Councilmember Cohen stated that it should be possible to obtain a more detailed response other than that 75 people called to complain about a range of issues. Responding, City Manager Gould stated it could be broken down. Should there be complaints concerning health and safety issues, Councilmember Cohen questioned whether these should be referred to the tenants' organization, the County or Code Enforcement. Ms. Lovette confirmed they are referred to Code Enforcement. Councilmember Cohen explained that he would like to see the number of complaints received segregated as to issue, identifying the agency or organization to which they were referred. City Manager Gould confirmed this would be provided. Councilmember Cohen moved and Councilmember Heller seconded, to accept the report. AYES: NOES: ABSENT: NEW BUSINESS: COUNCILMEMBERS: Cohen, Heller, Miller, Phillips and Mayor Boro COUNCILMEMBERS: None COUNCILMEMBERS: None 15. DISCUSSION RE WINDOW FALL PREVENTION REPORT (FD) — FILE 9-3-31 Fire Marshal Keith Schoenthal stated that subsequent to the young child falling from the fourth floor window at the Embassy Suites Hotel, staff was directed to investigate alternatives to avert another such incident. He reported that the City Attorney's Office, Community Development, Building Division and the Fire Department would constitute a working group to make recommendations to the City Council. Fire Marshal Schoenthal indicated that currently, there are no provisions in any of the model building codes which require windows to be unopenable and all such codes are silent on the issue of whether windows should be openable or not. He reported that there is, however, a requirement in the California Building Code and the Uniform Building Code, which does, in fact, require windows to be openable, and is dimension specific, on the first three floors containing bedrooms. This is specifically for emergency ingress and egress and these are commonly referred to as rescue windows. In light of this provision in the State Building Code, adopted by the State Fire Marshal's Office, the Fire Department was designated as the lead in developing this staff report. Fire Marshal Schoenthal thanked Assistant City Attorney Guinan and Building and Safety Manager Vincenti, for their assistance in the compilation of the report. The report attempts to balance the needs of window fall prevention with those of life safety from fires. Fire Marshal Schoenthal stated that during the review, staff discussed the type of building this should be applied to; commercial and office buildings were ruled out because of the unlikelihood of the presence of children, and most retail establishments contain sealed windows. Assessment of apartment buildings was deferred until sometime in the future, in favor of solely addressing the issue of hotels at this time. SRCC Minutes (Regular) 10/01/2001 Page 14 SRCC Minutes (Regular) 10/01/2001 Page 15 Reporting on a window guard, Fire Marshal Schoenthal stated these are actually now required in New York City, subsequent to Eric Clapton's child, several years ago, falling to his death from a thirteenth -floor window. Basically, this is a spring -mounted guard which inserts in the lower half of the window and one which Mr. Vincenti considered to be a great ladder for children to climb and fall out over the top. Fire Marshal Schoenthal stated appearances indicate that these window guards are designed specifically for east coast, double -hung type windows which slide up and down. He noted that inserting a window guard in the bottom of a double -hung window takes up the entire area and on a California aluminum side-to-side sliding window, it provides a perfect ladder for a child to climb; therefore, the use of these products was discounted. Fire Marshal Schoenthal stated that staff is proposing a multi -faceted approach. The first issue to be dealt with is that all windows on floors four and above of hotel properties, new or existing, fire- sprinklered or not, would be required to have window stops. These stops are inserted into the track and do not allow the windows to be opened more than four inches, which is the standard in the California Building Code for preventing falls, and is a guardrail standard. Floors one through three need to be considered because of the emergency escape process in the California Building Code, and to address this, Fire Marshal Schoenthal stated that in new construction, there currently is an exception in the code which allows even those windows on floors one through three to have stops inserted if the buildings are provided with a commercial level fire sprinkler system. Three different levels include houses, apartments and hotels, four stories and under, and commercial systems. Fire Marshal Schoenthal indicated that the State Building Code presently has an exception which states that "if the hotels are provided with the commercial systems rather than the hotel systems, they can, in fact, insert window stops, even on floors one, two and three". Staff's proposal is to require hotels to use the commercial sprinkler systems and also insert window stops. Fire Marshal Schoenthal stated that having taken care of all new construction and all items fourth floor and above, the real crux remains with the existing buildings having windows on the first three floors. Explaining the options, he indicated that should there be a full commercial fire sprinkler system, the hotels can apply to the Building and Fire Departments for an alternate means of protection. In this respect, they would review all of the fire and life safety aspects in the building, based on the current building code compared with that when the building was constructed. Fire Marshal Schoenthal stated that should those items match up, staff would permit the use of the exception in the current Building Code, and insert window stops on all of the floors. He indicated having already spoken with the Embassy Suites Hotel, who has begun this process and he had requested some additional information from them in this respect. Regarding the Four Points Sheraton Hotel, Fire Marshal Schoenthal stated that in reviewing their file, it appears they may not have a commercial fire sprinkler system and perhaps used the system specifically for hotels. Having spoken with their General Manager, she indicated their willingness to have a fire protection engineering company assess their system to ascertain the necessary action to upgrade the system to meet the requirement. Fire Marshal Schoenthal stated that in those properties not sprinklered, or in the case of the Four Points Sheraton, should their sprinkler system not meet the commercial standards, the final staff proposal is to require the window sills on the inside of the rooms to be at least 36 -inches off the ground, which is the same current standard for guardrails in the Building Code, and also to prohibit the location of furniture near the windows. He confirmed having spoken with the General Manager at the Four Points Sheraton in terms of notification to guests that the furniture has been moved away for their benefit. Fire Marshal Schoenthal reported having suggested the distribution of a handout to families; however, the General Manager indicated that this did not normally work, in that people usually do not read material furnished on checking in; however, she suggested the placement of stickers on the windows to the effect that the furniture had been removed from the window area for the benefit and safety of guests and to refrain from siting it near the windows. He commented that at that point, the responsibility for compliance would rest with the occupants. Fire Marshal Schoenthal stated that staff was requesting Council to accept the staff report and issue a directive to return with an ordinance containing these provisions. He indicated that as the ordinance specifically contains items which are amendments to building standards dealing with housing stock, it would also be a requirement as part of that ordinance, to provide findings of fact by the Council as to why this is more restrictive than the State Law. Fire Marshal Schoenthal stated that staff would also meet with the effected property owners regarding the ordinance, prior to the public hearing. Commenting on the tragedy of the event, Mayor Boro thanked staff for their work in bringing this item to Council in a relatively short time. He reported that Fire Chief Marcucci and he attended the SRCC Minutes (Regular) 10/01/2001 Page 15 SRCC Minutes (Regular) 10/01/2001 Page 16 very sad funeral of the young girl, and anything that can be done to prevent a reoccurrence is something the City should strive to achieve. Summarizing, Mayor Boro stated it was his understanding that Embassy Suites would have window stops on all four floors - they have the sprinkler system in place. Anything going forward would be required, through the forthcoming ordinance, to have a commercial grade sprinkler system which, in turn, would mean having window stops on the relevant floors. Regarding the Wyndham Hotel, Mayor Boro stated it appeared they intend to bring their fire safety system into compliance and their goal also, is to insert locks on all floors in their building. Fire Marshal Schoenthal agreed with this summation. Mayor Boro confirmed that the Ordinance would reflect the going forward situation and the one last property would hopefully be dealt with, in connection with these locks. Fire Marshal Schoenthal stated that the ordinance would be twofold: ■ It would codify the fact that the window locks have to be installed on floors four and above; and ■ Codify the requirement for fire sprinkler systems to be commercial systems; therefore, in using the commercial systems, floors one, two and three would also have window locks in place, thus ensuring the entire hotel had window locks. Councilmember Heller inquired as to how many facilities this would affect. Responding, Fire Marshal Schoenthal stated that without evaluating the assessor's roll (they lump all commercial properties together; he intends to work with Nena in Business Licenses to endeavor to break it down) he was aware of at least five properties, as along with the two larger properties, there are properties along Lincoln Avenue and the old Litchfield's. Councilmember Heller stated she favored this solution, as subsequent to the accident, she was in a third floor hotel room which had screens, and these she believed would not hold should anyone fall against them. She urged evaluating screens in a different light should they be installed in the future. Councilmember Phillips thanked Mayor Boro for taking the initiative in bringing this item forward this evening by way of the committee, which had done an outstanding job. He believed it was a tragedy which hopefully would prevent others in the future, and welcomed the ordinance. To clarify, Councilmember Cohen stated the issue was the impact on the two major hotels and while appreciating the excellent report, inferred it was necessary to be clear that there are two requirements, e.g., not only will it be necessary to install, or prove they already have, a commercial grade fire sprinkler system, also it will be necessary to bring the building into compliance with all the fire and life safety provisions of the 1998 California Building Code. Fire Marshal Schoenthal agreed it was a package deal; however, should it be short one or two items, it would be a staff decision whether to accept the alternate method of protection being applied for, under the Section in the Building and Fire Codes entitled "Alternate Means of Protection". Councilmember Cohen clarified that they would be required to lock down all the windows, including floors one, two and three, which could be done if they have a commercial fire sprinkler system, because of the provisions of the exemption in the code. He further clarified that the language in the ordinance would state that having implemented this provision, they would be required to stick with it. Councilmember Cohen stated that the code speaks to 36 -inches for apartments and hotels and 42 - inches elsewhere and inquired if this was the reason for 36 -inches, to which Fire Marshal Schoenthal responded affirmatively. Councilmember Cohen thanked staff for the report. Councilmember Miller suggested to Mayor Boro that when adjourning the meeting this evening, he do so in memory of the deceased child. Councilmember Cohen moved and Councilmember Phillips seconded, to accept the staff report and directed staff to develop an ordinance based on this report, for future consideration by the Council. Responding to Mayor Boro's inquiry as to when staff might return with the Ordinance, City Manager Gould stated it would be no later than the second meeting in November. Mayor Boro commented that with the tremendous response to date, it would be great to bring this issue to a conclusion. SRCC Minutes (Regular) 10/01/2001 Page 16 AYES: NOES: ABSENT: APPEAL HEARING: SRCC Minutes (Regular) 10/01/2001 Page 17 COUNCILMEMBERS: Cohen, Heller, Miller, Phillips and Mayor Boro COUNCILMEMBERS: None COUNCILMEMBERS: None 16. APPEAL HEARING — RV PARK OF SAN RAFAEL — APPEAL TO CITY COUNCIL OF RENT DISPUTE ARBITRATION DECISION (CA) — FILE 13-7-1 x 9-3-16 Assistant City Attorney Gus Guinan reported that in September 2000, the R.V. Park of San Rafael petitioned the City, under the City's Rent Control Ordinance, for a rent increase of $88.07 above the annual automatic CPI rent adjustment (which that year was determined to be $11.00). The rent increase arbitration hearing was held on February 14 and 15, 2001 before arbitrator, Leland Dibble. In his written opinion of May 2001, Mr. Dibble denied the park owner's application for a rent increase. Pursuant to the ordinance, the park owner has appealed the arbitrator's decision to the City Council, which is the subject of the Appeal Hearing this evening. Mr. Guinan indicated that several documents had been prepared for Council's review and were in the binder provided, which was prepared on September 21, 2001 and made available both at the counter in the lobby of City Hall and the City Library for the past week. These documents are listed in the staff report and include those in Council's binders. Parenthetically, Mr. Guinan stated that two additional documents were submitted today by Mr. Hall, copies of which he believed had been provided to Councilmembers. In addition, both parties had prepared written arguments regarding the appeal, commenting on the record and the legal points they wished to raise with regard to the evidence in the record. Outlining the procedure to be followed this evening, Mr. Guinan explained that it was unique compared to the type of procedure experienced by Councilmembers in the past. Most appeals heard by Council previously usually dealt with land entitlement decisions which had arisen, or had been appealed to Council from Planning Commission hearings. Those appeal hearings were de novo hearings, i.e., witnesses again testified before Council, presenting new documentation and at times, new witnesses appeared presenting new evidence, and subsequently, Councilmembers made their decisions based on the evidence presented at this hearing. Mr. Guinan stated that this appeal hearing was different in that it is based only on the record of the hearing below, the transcript of proceedings, written documents presented during the hearing and the arguments put forward to the arbitrator, together with the decision of the arbitrator. He indicated that although brief, the ordinance does describe this appeal procedure. Mr. Guinan explained that the City Council shall determine the appeal based on a review of the record of the proceedings before the arbitrator. At the Appeal Hearing, Council shall not consider any evidence outside of the record, unless a party can demonstrate that such evidence was unknown at the time of the hearing and could not with reasonable diligence have been discovered at that time. He further explained that the record consists of the reporter's transcripts and the other documents, of which he had already spoken. Outlining the options available to Council, Mr. Guinan stated they could affirm, modify or reverse the decision of the arbitrator, based upon the evidence in the record. He explained that this appeal hearing was not a public hearing; however, as with any other matter on a Council agenda, the public may address the Council regarding this agenda item. However, no new evidence should be considered because the appeal determination is based upon the record before Council in writing, and contained in the binder. Mr. Guinan reported that both the park owner and the tenant representatives would be afforded the opportunity to address Council and present their arguments. Council will be able to ask questions of the parties' representatives regarding their respective positions and the evidence as contained in the record. Mr. Guinan explained that the standard of review to be applied to the record was called "Substantial Evidence", meaning enough relevant information and reasonable inferences derived therefrom that provide a fair argument to support a conclusion, even though other conclusions might be reached. The options available to Council this evening, having reviewed the record and heard the parties' arguments are: ♦ If it is found that there is substantial evidence in the record to support the determination of the arbitrator, Council can uphold the arbitrator's decision; SRCC Minutes (Regular) 10/01/2001 Page 17 SRCC Minutes (Regular) 10/01/2001 Page 18 ♦ If it is found that substantial evidence does not exist in the record to support the determination of the arbitrator, Council can reverse or modify the arbitrator's decision; however, any modification of the decision has to be based upon the evidence in the record. For example, should an increase be granted which was not in the amount awarded by the arbitrator, it would be necessary to point to the evidence in the record that would justify that amount; ♦ If it is felt that the decision should be reversed, or Council is not satisfied with the record below, it can return the entire matter back to the arbitrator to take additional information or evidence, to answer specific questions or directions, in order to obtain the information upon which an appeal can be determined. Mr. Guinan stated he would be glad to try to answer any questions regarding this process. A copy of the City's Mobilehome Rent Stabilization Ordinance had been included with Council's documentation, which includes in section 20.12.110, the standards of reasonableness to be applied to rent increases. That is the standard under which the City's rent dispute hearings are to be determined and is the list of factors to be used by the arbitrator in determining his decision. Councilmember Heller reported having received two new pieces of documentation and as these appeared to be involved, she inquired if Mr. Guinan could quickly paraphrase as to content. Being unclear as to Mr. Malcolm Hall's status, Councilmember Heller asked for clarification as to whether he was a lawyer or representing the tenants as a volunteer. Responding, Mr. Guinan deferred to Mr. Hall for clarification on his status; however, he understood Mr. Hall was not a lawyer, rather had volunteered to represent his own interests, which are also shared interests with the rest of the tenants at his park. Regarding the documentation received this evening, Mr. Guinan explained that one document was an objection to the untimeliness of the argument in support of the appeal. Apparently, Mr. Rodriguez's brief was not faxed to Mr. Guinan until sometime on Sunday, September 23rd, 2001; however, Mr. Guinan informed Council that as far as he was concerned, this made no difference, as he had sufficient time to review it. He believed it was also given to Mr. Hall, who could address the issue in his presentation. Mr. Guinan deferred to Mr. Hall for an explanation with regard to the second document submitted this evening; however, from a brief perusal, it appeared to him to be a repeat of material previously presented in one form or another. Outlining the procedure from this point, Mayor Boro stated Council would first hear from the property owner's representative, Mr. Rodriguez, followed by Mr. Malcolm Hall, representing the tenants, and he requested that both parties keep their comments to approximately ten minutes each. Anthony Rodriguez, Attorney representing the owners of the R.V. Park of San Rafael, began by stating that with respect to the standard of review, he believed Assistant City Attorney Guinan was wrong in inferring that the "Substantial Evidence" test applies to this case. Mr. Rodriguez indicated that the record contained the factual and legal issues involved, which Council confirmed having reviewed, and in dealing with the legal issue, the "Substantial Evidence" test is not applied, rather a de novo determination is made as to what the law is in this City. Subsequently, it can be accepted or appealed to the Courts, and he emphasized that Council was not bound by what Mr. Dibble, Arbitrator, believed the law to be, as it is very clear that one person at the lowest level cannot bind everyone else in succession as to his interpretation of the law. Mr. Rodriguez reported that this issue is reviewed over and over again anew all the way to the U.S. Supreme Court in any case, if need be; therefore, judges always have the power of independent review of legal issues. Regarding the legal issues, Mr. Rodriguez stated the most important legal issue in the first half of the brief dealt with the question of whether this is an R.V. Park or Mobilehome Park. The City's ordinance very clearly states it applies only to mobile homes within mobilehome parks and the evidence was undisputed that this was an R.V. Park. It was built as an R.V. Park and is not wide enough to be a mobilehome park in that it is not possible to fit mobile homes in on both sides of the property. He explained that the property is only 100 -feet wide and the road is 12 '/2 -feet wide, with parking places 7 — 9 feet wide. Mobile homes require a further 3 -feet both in front and at the rear, leaving 30 -feet remaining; however, he stated, 30 -foot mobile homes do not exist. Mr. Rodriguez stated that merely from the measurements of the park, it can be determined legally, not under any Substantial Evidence test, that this is not a mobile home park and is exempt from rent control. In addition to the measurement issue, Mr. Rodriguez stated there are other requirements for a mobilehome park. He explained that when the Northridge earthquake took place, lots of mobile homes in Southern California fell off their foundations and were destroyed, resulting in the loss of investment for tenants and the loss of the ability for park owners to obtain income. In about 1994, the Legislature of the State of California enacted a new law which stated that any mobile home SRCC Minutes (Regular) 10/01/2001 Page 18 SRCC Minutes (Regular) 10/01/2001 Page 19 installed after 1994 was required to have an earthquake tiedown system, approved by a state inspector, together with a permit to put a mobile home in a mobilehome park. Mr. Rodriguez indicated that the tenants testified they had R.Vs which they drove into the park, they never had permits and do not have earthquake tiedown systems, which he stated, is indicative of the fact that they are not mobile homes. He equated this to two R.Vs parked in a hotel parking lot and under the tenants' definition of a mobilehome park, that hotel parking lot would be a mobilehome park. This is ludicrous, stated Mr. Rodriguez, and is what Mr. Dibble, Arbitrator, decided. He also decided that of the dozens of laws enacted in the 1960s, 70s, 80s, and 1990s dealing with mobilehome park requirements, many of which had been cited in Mr. Rodriguez's brief, he explained that Mr. Dibble's position was that since the mobilehome park was built in the 1940s, none of these laws apply. Mr. Rodriguez stated this was akin to saying that the Federal Fair Housing Act, enacted in 1964 and amended in 1988, does not apply to this R.V. park because it was enacted after 1940; therefore, these park owners can just discriminate against anybody. He stated that as pointed out in his brief, should the law state it did not apply to pre-existing properties, the entire Mobilehome Ordinance could not apply to either this park, or the MHC Park at Contempo Marin, both parks having been built prior to the enactment of the Mobilehome Rent Stabilization Ordinance. He, therefore, believed it was ludicrous to think that laws do not apply to a property because the property is old. Mr. Rodriguez stated that in order for Council to uphold Mr. Dibble's decision, it would be necessary to find that all the R.Vs are really mobile homes and that the R.V. Park is really a Mobilehome Park, with a rational basis for making that legal determination. He explained the law is also clear in these administrative type proceedings, that when a decision is made, the Courts must be furnished with a road map of how this decision was arrived at. The Court must be made aware of what was considered to arrive at the conclusion; therefore, he questioned how Council could in good faith, draft a decision that says these R.Vs are really all mobile homes, and these spaces are all mobile home spaces and the park, a mobilehome park. Mr. Rodriguez stated he did not believe anyone being intellectually honest could draw this conclusion. In Mr. Dibble's case, Mr. Rodriguez did not believe that Mr. Dibble was being intellectually honest and stated the decision was the worst he had ever seen in one of these cases in his entire career. Should Council find this is a Mobilehome Park, Mr. Rodriguez stated that the evidence on Fair Return on Investment was undisputed. The law is also crystal clear under the case they cited in their brief, the Whispering Pines Mobilehome Park v. City of Scotts Valley case, which states that only an expert can testify as to what a fair rate of return is in a mobilehome park, and a further case came down two weeks ago in Concord with a similar ruling. He reported that the expert they had in this case, Jerry Taylor, was the expert in the Concord case just cited by the Court of Appeal and, he believed, is binding on this district. Mr. Rodriguez indicated that Dr. Fabrikant testified as to what this Fair Rate of Return was. He also testified that one must take the investment adjusted for inflation and give a fair rate of return, and stated it was necessary to have an $88.00 rent increase in order to get a fair return at this particular property. The Hearing Officer stated he would not look to the investment, the actual purchase price of this park; he was going to look to the down payment, and give you a fair return on the down payment. Added to this, he would take the debt service payments, approximately $67,000, and pretend it was profit; therefore, the profit is higher because he is considering an actual expense to be profit, with the investment lower, under the pretence that no money was borrowed for the purchase. Mr. Rodriguez stated that perhaps the Hearing Officer could get away with that if there had been some expert who had testified that that's how people invest in real estate, anticipating only receiving a return on their down payment and the debt service is considered profit. He stated that to have someone crazy enough to invest in real estate under those circumstances, a fair return could be determined for that kind of investment. Mr. Rodriguez stated that Dr. Fabrikant put nothing in the record as to what a fair return was on down payment; therefore, there is no evidence, whatsoever, to support Mr. Dibble's decision. There is not a shred of evidence to say that 12% or 13% or 35% or even 75% is a fair return on down payment, so since there is no evidence whatsoever to support his decision, it cannot stand. Mr. Rodriguez stated these were the major points to be considered, unless the Council had any questions. Mayor Boro thanked Mr. Rodriguez, noting the City Council had no questions at this time. Malcolm Hall, tenant representative, stated that Mr. Dibble's decision, beginning on Page 3, concluded that the park historically, was a place of permanent residence for persons owning mobile homes, as they were known when the park was opened and operated throughout the years, at least until it was sold in June, 1998. Mr. Hall stated it continues to this day to operate as a SRCC Minutes (Regular) 10/01/2001 Page 19 SRCC Minutes (Regular) 10/01/2001 Page 20 permanent place of residence, as is apparent from the residents Regarding the issue of the owners being entitled to a fair rate of return, Mr. Hall stated the owners argue that the rate of return should be based on an investment, the total purchase price of the property, and said investment also needs to be adjusted over time for inflation. Mr. Hall identified various definitions of the word investment: Webster's Dictionary defines investment as "in which money is invested; the laying out of money for profit in the purchase of some type of property; money laid out for property." Black's Law Dictionary defines investment as "placing of capital or laying out of money in a way intended to secure income or profit from its employment". Roget's International Thesaurus, under the word invest, one of the synonyms states "lay out money as invest in; put money in." Referring again to Black's Law Dictionary, the definition of money is, "gold, silver, paper money, used as circulating medium of exchange and does not embrace notes, bonds, evidence of indebtedness." The American Heritage Dictionary of the English language defines equity as "the residual value of a business or property beyond any mortgage thereon or liability therein." Kenneth A. Barr in a law review article, entitled "Guidelines for Drafting Rent Control Laws — Lessons of a Decade", 1983 Rutger's Law Review, states in an example cited on page 791, "that equity is the cash investment in property." Mr. Hall stated that the owner's expert testified that the investment is the total purchase price, Exhibit 28, Page 9. His definition does not conform to the one set above. The expert goes on to state that fair rate of return should be based on risk, risk being the possibility that an enterprise may fail or not reach anticipated goals. Continuing, Mr. Hall stated that the owner's testimony indicated there was a waiting list of tenants to occupy the premises, thus the risk of loss of income is substantially decreased. Nowhere in the testimony was any value placed on the upcoming sale of a portion of the real estate, which would in all likelihood, present the owners with a greater rate of return on their investment, which was not in the record. Mr. Hall stated that no value has been placed on: 1. Appreciation in value of the property on a yearly basis as it relates to rate of return; 2. The increase in equity of the property through the pay down of the mortgage — the pay down resulting from the rents collected from the residents. This pay down is a form of rate of return, which does not require any additional investment in the park by the owners. Mr. Hall stated that applying the definitions as detailed above, setting aside their economist's definition, the owner's profit as reported, shows the following rate of return: Investment, Down -payment, Money laid out - $273,821.00. Profit $87,348. This, stated Mr. Hall, calculates to a yearly rate of return on investment of 31.90% return, which is 2 '/2 times greater than the expert testimony suggested was a fair rate of return, which was 12%. Turning to his own closing argument, Mr. Hall referred Councilmembers to his Respondent's Brief, dated 2/15/01, which he stated was somewhat confusing as he had corrected two pages which he submitted the next day, with corrected versions for pages 1 and 12. Mr. Hall read his remarks on Page 1: "R.V. Park of San Rafael is not entitled to any rent increase beyond that authorized by the S.R.M.C. Ordinance. Petitioner's contention that their park's fair rate of return should be 12% annually is ludicrous, based on the comparisons offered concerning other types of investment and their returns. It seems to me like apples and oranges." "Petitioner's purchase of the park with a down payment against the total cost of the park is more like buying stock on margin. They didn't have to put up the total cost of the investment. So I would think that the rate of return should be based more on the amount of the down payment rather than the full purchase price." SRCC Minutes (Regular) 10/01/2001 Page 20 SRCC Minutes (Regular) 10/01/2001 Page 21 Mr. Hall added that he used to refer to people who owned property and who really did not have money, as paper millionaires, in that they had a million dollar piece of property; but they did not own a million dollar piece of property; they owned whatever they put down on it - their equity, as in the instant case. Mr. Hall continued reading: "Also, if the rate of return in previous years was at a lower rate than desired, couldn't a Petitioner have considered another investment?" Mr. Hall stated they were aware it was a mobilehome park and that it was under the Ordinance in the City, even though they testified that they had a marginal knowledge of that fact. He indicated that it is their responsibility to have a full knowledge of that fact; and so they still went ahead and bought the property, even though they could have bought something else. Continuing, Mr. Hall stated: "To purchase this park and ask the arbitrator to raise rents to the level of 12% rate of return is asking the arbitrator to improve his investment on the backs of his tenants, and compromise the purpose of the ordinance, which is to approve annual rent increases based on the rate of inflation", which in Mr. Hall's opinion was fair. "Petitioner's rate of return increases every month as the amount of his mortgage decreases. Isn't that rate of return the real amount of return that they should expect on their investment?" The more they pay down, the more extra money they have every month, Mr. Hall stated. "And isn't the burden of improving their investment on themselves?" instead of the arbitrator. "The testimony of Mr. Taylor was more than ludicrous. His statement that R.V. Park of San Rafael is not a mobilehome park is contrary to 798.4 of the California Mobilehome Residency Law, which defines a mobilehome park as follows: `Mobilehome park' is an area of land where two or more mobilehome sites are rented, or held out for rent, to accommodate mobilehomes used for human habitation. R.V. Park of San Rafael has always qualified as a mobilehome park." As Mr. Hall had been speaking for more than ten minutes, Mayor Boro requested that he conclude his comments. Mr. Hall stated he would like to read the laws into the record on this issue: He referred to page 4 of his brief where he indicated the Petitioner states: "We believe we are not subject to rent control" and he inquired how they could demand Council give them something when they do not recognize Council's lawful right to so do. Mr. Hall stated that the B -Bar -A Mobilehome Park has a long history of mobilehome park under the law. Section 18008 "Mobilehome" of the Vehicle Code states this is a vehicle.... for carrying persons or property on its own structure... Chapter 799, approved by the Government in 1969, states that "mobilehome" is a vehicle designed and equipped for human habitation, and for being drawn by a motor vehicle. Section 18008 "Mobilehome" states it is a vehicle designed and equipped to contain no more than two dwellings. Chapter 1248, approved by the Governor in 1975 states a "Mobilehome" is a dwelling which is in excess of 8 -feet in width or in excess of 40 -feet in length. Mr. Hall pointed out that the burden of proof is upon the park owner and they have not proved in any way these are not mobile homes. He stated that the owners inferred they measured the length of some; however, he, Mr. Hall, having measured the same ones, arrived at different figures. He indicated they merely measured the length; however, the law dictates: "in excess of 8 -feet in width or in excess of 40 -feet in length." Mr. Hall stated this was objected to as being part of the record; however, as they took measurements of the trailers during the arbitration, and the tenants did not have an opportunity to, he included this in his closing argument. Mr. Hall identified measurements of trailers as follows: Longest trailer was 40 -feet 8 -inches x 9 -feet 10 -inches; another was 40 -feet 6 -inches x 8 -feet 3 -inches, and both qualify by size; SRCC Minutes (Regular) 10/01/2001 Page 21 SRCC Minutes (Regular) 10/01/2001 Page 22 another was 39 -feet 3 -inches x 16 -feet 9 -inches wide; and another 39 -feet 3 -inches x 12 -feet wide. Concluding, Mr. Hall stated that Mr. Dibble has used the formula of the equity of the park in the equation to come up with the percent of rate of return, while the owners used the entire cost of the park in their calculations. He indicated that to begin with, a positive income flow from renting the park would not be evident for some time; however, the owners already have a positive income flow, even with a small down payment of around 20%, and they are getting a rate of return of 31.90%. Mr. Hall stated he put his thoughts in his closing argument and thanked Council for their attention. Councilmember Heller complimented Mr. Hall on his knowledge and inquired as to his status. Mr. Hall confirmed he is a tenant and was elected by a caucus of tenants to represent the residents of R.V. Park of Marin in this arbitration. He indicated he is also the President of G.S. M.O.L.(Golden State Mobilehome Owners League). As indicated by Assistant City Attorney Guinan, Mayor Boro confirmed the procedure this evening was somewhat different from normal and was not a formal public hearing. However, since it was a public meeting, Council would be happy to hear any comments people might want to offer, as long as they confined their remarks to the record. Mayor Boro requested that speakers limit their address to three minutes. Coleman Persily indicated that the arbitrator in this case, Mr. Dibble, is both an attorney and a CPA, and in previous decisions had favored park owners over mobile home residents most of the time. There being an objection from Mr. Rodriguez, attorney for the park owner, on the lack of evidence in the record for Mr. Persily's statement, Mayor Boro requested that Mr. Persily make his point and refrain from speculation. Mr. Persily stated they were surprised at Mr. Dibble's favorable decision for the people living in the R.V. park and there was no question in his mind that the park is a mobilehome park. He stated there are many similar parks all over the state containing similar homes, all of which are considered mobilehome parks, and very rarely is there a question of whether or not this is so. Mr. Rodriguez again objected to Mr. Persily's statement, for lack of evidence in the record. Mr. Persily stated that Mr. Dibble is a CPA and had produced a formula, anticipated for some time, on how to determine a fair return. The formula was used in this case and although disagreeing with Mr. Dibble for many years, they were in agreement this time, as this formula demonstrated how to determine fair return. Mr. Persily indicated that the Supreme Court decision was to find a fair return and Mr. Dibble showed how this could be done, which was appreciated. Being a CPA, Councilmember Phillips stated he had a question concerning the definition of "return on investment" as used by Mr. Dibble, and was curious as to how Mr. Persily knew he was a CPA. Responding, Mr. Persily stated there had been other arbitrations with Mr. Dibble. Mayor Boro inquired of staff if indeed Mr. Dibble was a CPA. Assistant City Attorney Guinan stated it was his belief he is, as well as being a lawyer. Mr. Guinan issued a reminder that the comments at this point do not provide any new evidence for the record. Sharon Shea, resident of R.V Park of Marin for four years, stated she lived there because the rent is $350 per month and she is poor, as are most who reside there. She reported that she visited City Hall with a friend to locate the Use Permit on her mobilehome park; however, the Use Permit was not to be found in the building, which she considered rather convenient. She indicated they wished to see this Use Permit to ascertain whether the B -Bar -A Mobilehome Park, having changed its name to the San Rafael R.V Park, meant it was now indeed an R.V. Park, or whether the old permit indicated it was a mobilehome park and, therefore, it would still be a mobilehome park, albeit with a new name. Ms. Shea stated they could not carry out their research as this document was not available at the County Clerk's office. Being low income tenants with little knowledge of the law, they had done what they could to look into the matter; however, she believed the owners were using their knowledge of the law against them and this should be taken into consideration. Ms. Shea stated that the idea that low income tenants should be made responsible for a wealthy landlord's rate of return on his investment bothered her, as their past landlord three years ago, Mrs. Timmer, owned their park free and clear and tenants were not made to feel responsible for the rate of return on their investment because of this ownership. She inquired as to when this shifts over SRCC Minutes (Regular) 10/01/2001 Page 22 SRCC Minutes (Regular) 10/01/2001 Page 23 and whether there was any allowance in the law for this kind of thing. She indicated she would like to see more covered in meetings such as this, believing issues had been omitted. Ms. Shea stated she became involved rather late in the proceedings and regretted this. She was concerned about the lack of information made available to those not having ready access to a lawyer. Brian Kenyon, certified welder for Sun Ironworks from 1972 — 1997, stated he resided at the retirement park in Novato and was present to compare this evening's decision with Petaluma City Council. He noted from the record that this was never referred to as a mobilehome park At this point, Mayor Boro cautioned Mr. Kenyon not to argue with the lawyers. Mr. Kenyon stated that from 1973 —1980 on four different occasions, he welded tongues onto mobilehome units at this park, to facilitate their movement. They had been set with tongues cut off, and were permanent units. On a question of clarification from Coleman Persily, Mayor Boro stated this proceeding was a quasi Court of Law where only the transcript before Council could be addressed, not introducing any new items, evidence or opinions. Helen Simco, resident, retired and an accountant indicated that on perusing the financial statement of the park owner, she found their profit was shown to be $9,105.03; however, it was known they wrote off $15,000 for depreciation. She stated they also wrote off the interest on their loan, to arrive at the $9,105.03 figure; therefore, their profit was substantially more than indicated, as was evident from their Profit and Loss statement. Steve Haskil stated he owned a mobilehome in the R.V. Park of Marin which was registered as a mobilehome. Steve Fletcher stated that before buying, the landlord knew of all the facts; he knew there was rent control and what the rate of return would be, and as a real estate professional, he gladly paid the asking price; however, two years later changed his mind. Mr. Fletcher stated that tenants were not informed the park was for sale, and on the day he bought it, the landlord taped a piece of paper on the mailroom door indicating that improvements would be made; however, to date, no improvements have been made and to date, tenants have not been informed of who the landlord is. Mr. Fletcher indicated that after a monumental amount of research, the arbitrator determined that an annual return on investment of 32% is adequate. He added that three yeas ago, the new landlord's first task was to remove the Use Permit from the mailroom. Herman Prevette stated he was a photographer and had lived at the B -Bar -A Trailer Ranch since 1976. He had found the place by looking under Mobilehome Parks in the telephone book and it has always been his impression that the B -Bar -A Trailer Ranch is a mobilehome park. He stated that in 1990, he purchased a mobilehome which was in the park since the 1950s and was 48 -feet long, and 8 -feet wide. In 1993, he and 11 other people, represented by Carl Shapiro, were in litigation with some people who purchased 18 feet of land at the Trailer Park. Mr. Rodriguez objected as this was not part of the record and Mayor Boro requested Mr. Prevette confine his remarks to the existing record. Mr. Prevette stated he had testified in the earlier hearing that he had lived there for 25 years and was presenting his history and the belief that the place in question is indeed a Mobilehome Park, and the reason he referred to the litigation was because it was covered by the Mobilehome laws of the State of California. He stated he had flowers around his trailer, this was his home and he supported his neighbors in the belief that this is an unfair rent increase. This place was bought with the knowledge that it was covered by the Rent Control Ordinance of San Rafael and he did not believe the name change has altered the status of the park. Ernest Wilkinson stated he resided in Unit B3 and from the California Mobilehome Residency law, §798.10, the definition of change of use means: "the use of a park for purposes other than rental or holding out for rent of two or more mobilehome sites to accommodate mobile homes use for human habitation, and does not mean the adoption, amendment or repeal of a park rule or regulation. A change of use may affect an entire park or any portion thereof. Change of Use includes, but is not limited to, a change of the park or any portion thereof to a condominium, stock cooperative, planned unit development or any form of ownership wherein the space within the park is to be sold." SRCC Minutes (Regular) 10/01/2001 Page 23 SRCC Minutes (Regular) 10/01/2001 Page 24 Mr. Wilkinson stated that when the owners bought the park, they placed a sign out in the front which stated "R.V. Park of San Rafael" and according to what he had read, there was more involved than merely changing the name. There being no further comment from the audience, Mayor Boro referred the item back to Council for comment and inquired if Mr. Guinan, Assistant City Attorney, had any comment, at this point. Mr. Guinan pointed out that Mr. Rodriguez was correct with regard to legal issues in that Council could determine those. In that regard, the definition of a Mobilehome, under Civil Code §798.3 has sub -section (b) which deals with some grandfathering, and any trailer or other recreational vehicle occupying a mobilehome site in a park for nine or more continuous months, commencing on or after November 15, 1992, qualifies as a mobilehome. If there are two or more mobilehomes in a park, under §798.4, then it is defined as a mobilehome park. Mr. Guinan stated that should there be a change of use, there are certain requirements under the Government Code which entail preparation of an impact report and that includes a change of use for all or part of the park. This would be for some other use, such as a recreational vehicle park, and to his knowledge, none of that has been accomplished; therefore, from a legal point of view, the arbitrator's determination that, in fact, the City's Mobilehome Ordinance applies to the R.V. Park of San Rafael, formerly the B -Bar -A Trainer Ranch, is correct. Mr. Rodriguez requested permission to address this legal issue and Mayor Boro stated it was not Council's intention to enter into a debate at this point. Mr. Rodriguez stated Mr. Guinan was misquoting the law in that it speaks to "mobilehome sites" and he first has to establish that those are mobilehome "sites". Mr. Rodriguez stated these are R.V. sites, and two mobilehome sites can constitute a mobilehome park, not two R.V. sites. Mayor Boro stated he assumed this was argued before the arbitrator and Mr. Rodriguez concurred. Mayor Boro stated the issue which is somewhat troubling to him is how the arbitrator calculated the rate of return. He was aware of the definitions of the word "investment" and believed that should someone purchase a site, make a down payment, have carrying costs and it is a commercial venture, that some level of compensation must be achieved in order to cover the carrying costs; otherwise, the project is just not going to work. Mayor Boro stated he had a problem with the approach that the arbitrator used to calculate investment. On the other hand, he had a problem with the rate of return being requested on behalf of the park owner, as he believed it to be at a level that might be applicable in a new venture with a lot of risk. He did not necessarily think this particular operation carried that level of risk and it was certainly not a new venture. Mayor Boro stated that as he understood the City's Ordinance, the owner of a park does have the ability and the opportunity to come in and ask for a fair rate of return. He stated he was not convinced that this has been calculated properly; however, at the same time, the City's Ordinance also states that these spaces will remain affordable to the people there; therefore, there is a limit as to what can happen. Mayor Boro stated that somewhere between those two ends there is an answer, which is not evident as yet. Beginning Council discussion, Mayor Boro suggested pursuing the issue of generating a series of questions to the arbitrator for him to possibly re -look at some of these points. Councilmember Cohen stated it appeared to him there were two sets of questions The claim has been made that this is not, in fact, a mobilehome park and the ordinance does not apply, as argued very vigorously by Mr. Rodriguez; and 2. Assuming that the ordinance does apply, there is the issue of what a fair rate of return is and whether there is enough information for Council to conclude whether or not we are comfortable with the arbitrator's decision. Councilmember Cohen stated he believed there was enough information in the record to reach the conclusion, as articulated again by staff and objected to by Mr. Rodriguez, that this is a mobilehome park and the ordinance does apply. He stated that changing the name and arguing that because standards have changed since it was created, it somehow was defined away from being a mobilehome park, did not convince him. He indicated that he was satisfied with the evidence on this issue, and agreed with the decision of the arbitrator. He shared Mayor Boro's concern, however, about the method used in calculating this (fair rate of return) and suggested that perhaps Council could be enlightened by Councilmember Phillips, whom he did know to be a CPA. Councilmember Cohen stated it appeared there were two SRCC Minutes (Regular) 10/01/2001 Page 24 SRCC Minutes (Regular) 10/01/2001 Page 25 approaches in terms of calculating what the investment is, neither of which made much sense to him. Councilmember Cohen used the example that should he invest $1 -million, regardless of how he raised this figure, ($250,000 cash and $750,000 borrowed) the rate of return was calculated on the $1 -million, and he could not then request to be allowed to calculate his profit based on paying off the interest also. On the other hand, Councilmember Cohen stated that if the investment is only $250,000, then the interest is a cost of operating the park and cannot be thrown out. On one hand, the owner is inferring he gets credit for paying interest, but he also gets credit for investing $1 million as if he had taken that out of his pocket. On the other hand, the arbitrator is saying that only $250,000 cash was invested, but the interest is not treated as an expense. Councilmember Cohen stated he did not believe either one of these scenarios to be fair. Another question raised by the arbitrator and not discussed by the owner's attorney, was that of appreciation. Councilmember Cohen stated that the ordinance discusses not counting depreciation. There is a tax calculation in which everyone gets to conveniently pretend that this real estate is depreciating and after some period of time will be worth nothing, when, in fact, the exact opposite is true. He stated it is more likely to be worth more today than when purchased, just as every other piece of real estate in Marin County is worth more today than it was in 1998. While there may be a near-term dip in the real estate market coming, this real estate is clearly going to be worth more in ten years than its worth today. He stated that when someone buys real estate, part of their expectation of return is that real estate is going to appreciate over time, and it was clear to him how this was to be calculated. Councilmember Cohen stated that although the arbitrator referred to it, he did not pursue it further and he would like to see this addressed also in a further discussion of what is a fair rate of return. Councilmember Phillips stated he was influenced by the record and also by Mr. Guinan's comment with regard to the definition of a Mobilehome Park, and it did appear there was sufficient evidence in the record to conclude that, because of the two units and perhaps others, the R.V. Park of San Rafael is, in fact, a mobilehome park. It also seemed to him rather interesting that the apparent owners when purchasing the park, did not have a great deal of understanding of the investment they were making, albeit being in a position to raise $1 -million. This he found contrary to the belief, at least from his experience, of purchasers having a thorough understanding of what they were acquiring. Perhaps they did not fully understand; however, he found this surprising. Councilmember Phillips stated there was sufficient evidence in the record to indicate they probably knew what, in fact, they were purchasing, along with the City's ordinance. He was satisfied this is a mobilehome park subject to the ordinance in place. With regard to the calculation of return on investment, Councilmember Phillips stated he found the testimony by Dr. Fabrikant to be well presented, and he agreed with many of the points made with regard to the calculation of the return on investment, which is not solely based on down payment. He believed it was incumbent upon the purchaser to determine, not only how much the price of the unit is, but to come up with the capital. With regard to the testimony regarding cash down, the seller (the previous owner) received over $1 million, and aside from the fact that the source is another issue; nevertheless, the person selling the property did, in fact, receive the $1 million which in his view, is the figure to be used to compute the return on investment. Councilmember Phillips stated he believed the issue with regard to reasonable return on investment should be returned back to the arbitrator to reconsider his approach, perhaps referring back, if it is helpful, to the testimony provided by Mr. Rodriguez in representing the current owners. He believed there was sufficient guidance in the record as to how this could reasonably be computed, and he did not wish to add to that. Concerning the issue of 12%, Mayor Boro asked Councilmember Phillips to comment on his experience on a fair rate of return over and above recouping the basic cost, and Councilmember Phillips stated he needed to qualify, because there was testimony from an expert on "Mobilehome Parks" and he was hesitant to comment, not being such an expert, and not having done any work in that specific industry. There is some evidence that the risk, which is part of the equation on return, is nominal in that there is a waiting list which reduces the risk. He did not believe it was nominal below a secured investment, as it was more subject to market risks and risk of catastrophic loss, etc. His sense was that 12% was too high, however, the evidence would probably have to dominate, and Mr. Dibble, in referring back to the record, would probably come up with something less. Councilmember Heller agreed with Councilmembers Cohen and Phillips and stated it was a very confusing packet of information to go through, but in reading through the standards of reasonableness to be applied to rent increases, she did not believe Mr. Dibble touched on all of SRCC Minutes (Regular) 10/01/2001 Page 25 SRCC Minutes (Regular) 10/01/2001 Page 26 them, and he needs to perhaps expand his conclusion a little more, at least for her. Nor did he touch on any cost of inflation, and Councilmember Heller stated she would favor it being laid out a little clearer and returned to Council. She was not saying the park owners are not entitled to a rent increase, they certainly may be subsequent to evaluation the complete record next time; but she would prefer clearer conclusions. Councilmember Miller concurred in terms of the Assistant City Attorney's suggestion, together with reading the record and Mr. Dibble's conclusions, that this is indeed a mobilehome park. He stated he had problems regarding the rate of return and the formula, and having read Dr. Fabrikant's remarks, this made more sense than Mr. Dibble's, in terms of the down payment being the only criteria. He stated he would be interested in knowing if there was a formula for a rate of return and what the calculations are for determining the fair rate of return. Councilmember Phillips stated he did not wish to overstep his bounds and in determining fair rate of return, risk is an element; he was not an expert in the unique issue of mobilehome parks. Should this be returned to Mr. Dibble, Councilmember Phillips stated he could obtain the information with regard to risk analysis. Councilmember Miller stated that basically this is what he would like to see Mr. Dibble review, returning with a clear notion of how his decisions are made, both for the formula for rate of return and what the criteria for fair rate of return are. Councilmember Cohen posed the question that should Council remand the matter back to the arbitrator, if there could be a suggestion that he seek further information. Assistant City Attorney Guinan responded affirmatively, and explained that should Council be dissatisfied with the record, due to it being insufficient to make a determination on appeal, the matter could be reversed and remanded back to the arbitrator for further consideration, in light of the questions raised by Council about the failure of the record to provide the information needed to determine the appeal. Councilmember Cohen stated he agreed with the suggestions made and while some testimony in the record is clearly argued, there are a number of questions not answered about how fair rate of return is argued. He indicated that some of the argument presented omits some things, as pointed out by Councilmember Phillips with regard to risk. Councilmember Cohen stated that 5% which is guaranteed is not offset for inflation and means it is a real rate of return of about 2'/2% to merely purchase bonds. 12% adjusted for inflation is significantly more and it was not clear there is sufficient evidence in the record on these questions to make a determination one way or the other. He was not satisfied there was evidence which leaves him entirely comfortable with the determination made to date by the arbitrator on the fair rate of return, to draw a conclusion. Assistant City Attorney Guinan suggested that the portion of the arbitrator's decision with regard to the determination of the fair and just reasonable return could be reversed and remanded back to the arbitrator for further consideration in light of this evening's comments. Councilmember Cohen inquired if he could incorporate in this that Council was upholding the arbitrator's decision regarding the status of the park as a mobilehome park. Mr. Guinan responded affirmatively. Councilmember Cohen moved and Councilmember Phillips seconded, to uphold the arbitrator's decision determining the R.V. Park of San Rafael to be a mobilehome park and as such, subject to the Mobilehome Rent Control Ordinance, and to reverse the arbitrator's decision on the Fair Rate of Return and remand the decision back to the arbitrator for further investigation, in light of Council's comments this evening. This to include a discussion of the issue of fair rate of return, and the definition of, and return on investment. AYES: COUNCILMEMBERS: Cohen, Heller, Miller, Phillips and Mayor Boro NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None Councilmember Cohen stated this was referenced in the record but there was no further discussion and also he was curious of what, in fact, an appreciation of land values was, an appraisal of the property, for example, or whether or not that has any bearing on a determination of an expectation of return on investment. Mr. Rodriguez requested that Council reconsider the motion and reject the application in favor of going straight to Court. The City Council took no action on Mr. Rodriguez's request SRCC Minutes (Regular) 10/01/2001 Page 26 SRCC Minutes (Regular) 10/01/2001 Page 27 Sharon Shea inquired whether there was any discussion on the constitutionality of the ordinance and the issue of equal treatment before the law. Mayor Boro stated the Council believes the ordinance applies and this is a mobilehome park. Regarding the rate of return, Ms. Shea stated there is an ordinance which is basically unconstitutional because it is making a wealthy man's investments subject to poor people and if the park had never been sold, the tenants would not be responsible for anybody's rate of return. She stated that people whose parks are not sold do not fall into the same category of having to be responsible for their landlord's wealth; therefore, it was not a fair ordinance. CITY MANAGER'S REPORT: 17. Community Action Marin — Termination of Lease on Louise Street — all -day pre-school care File 10-2 x 9-3-65 x 9-1 City Manager Gould reported that Community Action Marin was given notice of termination of its lease on Louise Street where it provides all -day pre-school care to approximately 24 children from the Canal neighborhoods. He indicated that at the direction of Mayor Boro, a white paper was provided for Council, outlining options for addressing the loss of these pre-school slots in the Canal, and requested a sub -committee be selected from the City Council to work with staff in developing an appropriate response. City Manager Gould stated he was not sure what the response should be and would welcome the assistance of the elected officials to determine how the City should respond, if at all. Mayor Boro suggested that as he and Councilmember Phillips, several years ago, served on a Childcare Task Force and were aware of the issue of childcare, and with the agreement of the remainder of the City Council, would be happy to act in the capacity of a sub -committee. COUNCILMEMBER REPORTS: 18. a) Day Labor Issue — File 231 x 9-1 Mayor Boro recalled that the Council has had a sub -committee dealing with the issue of Day Labor and reported that he and Councilmember Cohen visited the City of Concord several months ago and requested and received a report on this subject. He requested City Manager Gould to make this report public and circulate it to the City Council, with a view to conducting a work session at some future date. b) Maia Ropion, Deceased — File 9-3-31 x 9-1 Mayor Boro announced to Council that Maia Ropion's aunt was present this evening at the City Council Meeting and subsequent to the discussion on the Window Fall Prevention Report, spoke with him and Councilmember Cohen. She was very thankful for the City's endeavors in this respect, as was the family attorney, who was also present. There being no further business, Mayor Boro adjourned the City Council Meeting at 11:10 p.m. in memory of Maia Ropion, aged nearly 3 years, who passed away on August 12, 2001, following a fall from a fourth floor window at the Embassy Suites Hotel in San Rafael. JEANNE M. LEONCINI, City Clerk APPROVED THIS DAY OF MAYOR OF THE CITY OF SAN RAFAEL , 2001 SRCC Minutes (Regular) 10/01/2001 Page 27