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HomeMy WebLinkAboutCC Minutes 2002-10-21SRCC Minutes (Regular) 10/21/2002 Pagel IN THE COUNCIL CHAMBER OF THE CITY OF SAN RAFAEL, MONDAY, OCTOBER 21, 2002 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 OPEN SESSION — COUNCIL CHAMBER — 7:00 PM: Mayor Boro announced the Closed Session items. CLOSED SESSION — CONFERENCE ROOM 201 — 7:00 PM: Present: Albert J. Boro, Mayor Paul M. Cohen, Vice -Mayor Barbara Heller, Councilmember Gary O. Phillips, Councilmember Absent: Cyr N. Miller, Councilmember a) Conference with Legal Counsel — Existing Litigation Government Code Section 54956.9(a) Case Name: MHC Financing, et al. v. City of San Rafael, et al. U.S. District Court, Northern Dist. of CA, Case No. C003785 b) Conference with Labor Negotiator (Government Code Section 54957.6) Negotiators' Names: Ken Nordhoff, Lydia Romero, Daryl Chandler Employee Organizations: San Rafael Fire Chief Officers' Association San Rafael Fire Association San Rafael Police Mid -Management Association San Rafael Police Association Marin Association of Public Employees, Supervisory Unit, SEIU Local 949 Marin Association of Public Employees, Miscellaneous Unit, SEIU Local 949 City Attorney Gary Ragghianti announced that no reportable action was taken. ORAL COMMUNICATIONS OF AN URGENCY NATURE: 8:12 PM Re: Lagoon Road Pump Station — File 9-3-40 Mayor Boro confirmed that Council received material dated October 16, 2002 from Ms. Mabardy. Referring to this material, Suzanne Mabardy requested that Council review the calendar of events dating back to 1986, commencing with Public Works Director David Bernardi's letter to the Mayor requesting a comprehensive engineering study of flooding management for the Glenwood and Peacock Gap Neighborhoods, specifically for the pump station at Lagoon Road #34. Ms. Mabardy stated that in April, 2000, the City Council rejected the Public Works Department's proposal to rebuild the pump station, requesting a comprehensive engineering evaluation, as recommended by Mr. Bernardi in 1986. She indicated that an Engineering Report was approved and funded and a project consisting of a submersible pump station, expanded drain systems and elevation of the levy was approved and funded, for completion in October, 2001. Ms. Mabardy stated the approved plan was verified by City Manager Gould and Public Works Director Bernardi at a homeowners' meeting in November, 2000, and in July, 2001, Mr. Bernardi reported to the State of California that the parts were ordered. She indicated that in November, 2001, Assistant City Manager Nordhoff further verified the plan, albeit the project at this stage was a month tardy. Ms. Mabardy indicated she wished to add to the aforementioned calendar of events a letter to Jim Goniea dated November 2, 2001, copy received from Mr. Bernardi this evening, which related to an individual arrangement with Mr. Goniea, 31 Lagoon Road; however, it was her understanding that any project approved and fully funded returns to City legislators. She stated that residents expected the project to be done correctly, based on the Engineering Report and the project approved and funded by Council. Ms. Mabardy indicated that residents needed the installation of a submersible pump station that would not flood and would operate during a flood event. She reported that residents requested she inform Council that the pump station is not a recreational enhancement to the neighborhood, but a necessity, and she requested Council respect the needs of the community. Mayor Boro invited Mr. Bernardi or Mr. Gould to report on the status. SRCC Minutes (Regular) 10/21/2002 Page 1 SRCC Minutes (Regular) 10/21/2002 Page 2 Having investigated the submersible pump option, Public Works Director Bernardi stated the letter to Mr. Goniea summarized the engineering analysis of submersible pumps versus the other option. For the record, he stated there was no deal with Mr. Goniea with regard to the non -submersible pump option. He reported having met with Mr. Goniea and Mr. Isotalo , Peacock Gap Homeowners Association, on October 23, 2001, in the field to ostensibly discuss and have a clear understanding of the project. He indicated he explained in the letter that the submersible option did not work because the cost of these pumps consumed most of the funding available for the project, rendering it impossible to complete the other necessary components. Mr. Bernardi stated the critical element was to raise the pump motors out of the flood plain, or locate them under water. The cheaper alternative was to raise them out of the flood plain and consequently, thimbles were ordered from the pump manufacturer in May, 2002. The manufacturer lost the plans, causing delays; however, Mr. Bernardi reported that the thimbles would be delivered on Tuesday, October 22, 2002, and installed and operable by the middle of next week. Mr. Bernardi stated that an agenda item for award of contract for the remaining parts of the project would be brought to Council at the first meeting in December, with the work to take place in the spring. He indicated this was fine, as 90% of the project entails keeping the pump motors out of the flood area. He noted that in the interim, the motor control center would be protected by sandbags, if needed, and when the new motor control center was constructed, it would be raised up high with a low profile electrical panel out of the flood area. Mr. Bernardi stated that the emergency generator was presently on standby and staff believes flood protection could be adequately handled in the interim. Mayor Boro recalled this issue being presented at a Council meeting, at which time Council concurred to go forward with the alternative plan. He stated it was noticed and representatives were present; however, he believed Ms. Mabardy was out of the country at that time. Councilmember Cohen stated the essential point was that the solution arrived at by Public Works staff with regard to pumping of the lagoon at Peacock Gap is sufficient to the City's charge, and the residents would be protected. He indicated that the system decided on was based on a lot of the information in the November 2, 2001 letter, is a better system within the budget and would address the necessary pumping. Public Works Director Bernardi concurred. Councilmember Cohen requested a summary staff report be generated as a refresher for Council and to share with members of the public who had concerns. Councilmember Heller moved and Councilmember Phillips seconded, to approve the Consent Calendar as follows: ITEM 2. Approval of Minutes of Special Closed Session of Monday, September 30, 2002 and Regular Meeting of Monday, October 7, 2002 (CC) 3. Resolution Regarding Proposed Changes to the Marin County Superior Court's Bail Schedule for Violations of the San Rafael Municipal Code (CA) — File 13-8 x 9-3-16 x 9-3-30 x 9-10-2 4. Resolution of Appreciation to Karen O'Rourke, Administrative Assistant II, Community Services Department, Retiring with 28 Years of Service (CS) — File 102 x 7-4 x 9-3-65 5. Resolution Approving Agreement with PreCare, Inc. for Injury Prevention and Physical Therapy Services, and Authorizing the Mayor to Execute the Agreement (MS) — File 4-3-417 x 7-4 6. Report on Competitive Negotiations for Multi - Space Parking Meter Equipment, Bid No. 502-02, and a Resolution Rejecting all Proposals, Waiving the Competitive Bidding Requirements, Pursuant to 2.55.070(D) of the San Rafael Municipal Code, Allowing Staff to Negotiate, and the City Manager to Contract for the Purchase of Multi -Space Parking Equipment in an Amount Not to Exceed $50,000 (MS) - RECOMMENDED ACTION Minutes approved as submitted. RESOLUTION NO. 11185 — RESOLUTION REGARDING PROPOSED BAIL SCHEDULE FOR VIOLATIONS OF THE SAN RAFAEL MUNICIPAL CODE RESOLUTION NO. 11186 — RESOLUTION OF APPRECIATION TO KAREN O'ROURKE, ADMINISTRATIVE ASSISTANT II, COMMUNITY SERVICES DEPARTMENT, RETIRING WITH 28 YEARS OF SERVICE RESOLUTION NO. 11187 — RESOLUTION AUTHORIZING THE SIGNING OF AN AGREEMENT WITH PRECARE, INC. FOR ON-SITE ERGONOMIC INJURY PREVENTION AND TREATMENT SERVICES RESOLUTION NO. 11188 — RESOLUTION REJECTING ALL COMPETITIVE PROPOSALS FOR THE PURCHASE OF MULTI -SPACE PARKING METER EQUIPMENT, BID NO. 502-02, WAIVING COMPETITIVE BIDDING PURSUANT TO SAN RAFAEL MUNICIPAL CODE SECTION 2.55.070(D), AND AUTHORIZING SRCC Minutes (Regular) 10/21/2002 Page 2 File 9-3-87 x 11-18 x 12-14 7. Report on Competitive Negotiations and Resolution Authorizing the City Manager to Enter Into a Contract with Sentry Control Systems, Inc. In a Form to be Approved by the City Attorney for the Purchase of Parking Access and Revenue Control Systems In an Amount Not to Exceed $450,000 (MS) — File 9-3-87 x 11-18 x 12-14 8. Resolution Amending Resolution No. 10491 Pertaining to the Compensation and Working Conditions for the San Rafael Police Mid - Management Association (Four -Year MOU from July 1, 2002 through June 30, 2006) (MS) — File 7-8-5 x 9-3-30 9. Resolution Amending Resolution No.10449 Pertaining to the Compensation and Working Conditions for the San Rafael Fire Chief Officers' Association (Four -Year MOU from July 1, 2002 through June 30, 2006) (MS) — File 7-8-5 x 9-3-31 10. Report on Bid Opening and Resolution Awarding Contract to Indio's Construction, in the Amount of $144,507.42 re Santa Margarita Park Tot Lot and Playground Improvements, Project No. 11000 (Bid Opening Held Thursday, September 19, 2002) (PW) — File 4-1-553 x 9-3-65 x 9-3-66 11. Resolution Authorizing Street Closures for the 23rd Annual Parade of Lights and 13th Annual Winter Wonderland and Snow on Friday, November 29, 2002, and Saturday, November 30, 2002 (RA) - File 11-19 SRCC Minutes (Regular) 10/21/2002 Page 3 STAFF NEGOTIATIONS TO CONTRACT FOR THE PURCHASE OF THE EQUIPMENT IN AN AMOUNT NOT TO EXCEED $50,000 RESOLUTION NO. 11189 — RESOLUTION AUTHORIZING THE CITY MANAGER TO ENTER INTO A CONTRACT WITH SENTRY CONTROL SYSTEMS, INC., IN A FORM TO BE APPROVED BY THE CITY ATTORNEY, FOR THE PURCHASE OF PARKING ACCESS AND REVENUE CONTROL SYSTEMS IN AN AMOUNT NOT TO EXCEED $450,000 RESOLUTION NO. 11190 — RESOLUTION AMENDING RESOLUTION NO. 10491 PERTAINING TO THE COMPENSATION AND WORKING CONDITIONS FOR THE SAN RAFAEL POLICE MID -MANAGEMENT ASSOCIATION (4 year MOU from July 1, 2002 through June 30, 2006) RESOLUTION NO. 11191— RESOLUTION AMENDING RESOLUTION NO. 10449 PERTAINING TO THE COMPENSATION AND WORKING CONDITIONS FOR THE SAN RAFAEL FIRE CHIEF OFFICERS' ASSOCIATION (4 year agreement from July 1, 2002 through June 30, 2006) RESOLUTION NO. 11192 — RESOLUTION AWARDING THE CONTRACT TO INDIO'S CONSTRUCTION FOR SANTA MARGARITA PARK TOT LOT AND PLAYGROUNDIMPROVEMENTS PROJECT IN THE AMOUNT OF $144,507.42 RESOLUTION NO. 11193 — RESOLUTION AUTHORIZING THE TEMPORARY CLOSURE OF CITY STREETS FOR THE 23RD ANNUAL PARADE OF LIGHTS AND WINTER WONDERLAND ON NOVEMBER 29TH AND NOVEMBER 30TH, 2002 AYES: COUNCILMEMBERS: Cohen, Heller, Phillips and Mayor Boro NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: Miller SPECIAL PRESENTATION: 12. PRESENTATION OF RESOLUTION OF APPRECIATION TO KAREN O'ROURKE, ADMINISTRATIVE ASSISTANT COMMUNITY SERVICES, RETIRING WITH 28 YEARS OF SERVICE (CS) - FILE 102 x 9-3-65 For the benefit of the audience, Mayor Boro explained that Karen O'Rourke was retiring from the City of San Rafael after completing 28 years of service, and the Resolution could not begin to express the City Council's gratitude for the great job she always did for the City. He commented on her friendly smile and sincere dedication. Mayor Boro explained the Resolution of Appreciation indicated Karen started with the City on July 1, 1974; she worked under six Department Directors, four Police Chiefs, two City Clerks SRCC Minutes (Regular) 10/21/2002 Page 3 SRCC Minutes (Regular) 10/21/2002 Page 4 and one Fire Chief, not counting the number of Mayors and Councilmembers, and had excelled at her work. He noted Karen was a Union Shop Steward for Community Services for 26 years; she was the First Aid Instructor for Recreation employees and was assigned by the City to assist in the Oakland Fire Relief efforts. Mayor Boro stated she also volunteered as Little League President, was appointed by the County Board of Supervisors on the Drug and Alcohol Board, a founding member of the Bocce Federation Board, Goldenaires Senior Club and Social Event Assistant, Trip Chaperone, Theater Production Assistant and Cast Member, Activity Leader for Developmentally Disabled Children and a member of countless department event production teams. Mayor Boro stated Karen would be greatly missed and he wished her great luck and success. Karen O'Rourke thanked Mayor Boro and Councilmembers, stating she had a lovely time working for the City of San Rafael for the last twenty-eight years. The Community Center had been a fun job; however, she reported that now it was on to new adventures. PUBLIC HEARINGS: 13. Public Hearing — CONSIDERATION OF FINAL ADOPTION OF ORDINANCE NO. 1788, ENTITLED "AN ORDINANCE OF THE CITY OF SAN RAFAEL AMENDING TITLE 4 OF THE MUNICIPAL CODE OF THE CITY OF SAN RAFAEL, ADOPTING THE UNIFORM FIRE CODE, 2000 EDITION, WITH AMENDMENTS, AND THE CALIFORNIA FIRE CODE, 2001 EDITION, WITH AMENDMENTS, AND PRESCRIBING REGULATIONS AND BUILDING STANDARDS GOVERNING CONDITIONS HAZARDOUS TO LIFE AND PROPERTY FROM FIRE, EXPLOSION AND OTHER DANGERS, AND ESTABLISHING A FIRE PREVENTION BUREAU AND PROVIDING OFFICERS THEREFOR, AND DEFINING THEIR DUTIES AND POWERS" (FD) — FILE 1-6-4 x 9-3-31 x 9-1 Mayor Boro declared the public hearing opened. Fire Chief Bob Marcucci stated that the Uniform Fire Code is adopted every three years, indicating it is first reviewed by the State Buildings Standards Commission. Subsequently, cities are in a position to adopt the Uniform Fire Code and the California Fire Code. The 1997 Code being the current one, Fire Chief Marcucci stated that this evening's proposal maintains the status quo, with the one exception of the window fall prevention program, following the recent tragedy. As the "sunset" provision is November 1, 2002, should Council choose not to adopt the Fire Code this evening, at that time the amendments would be lost. Fire Chief Marcucci recommended Council hold the public hearing, take testimony and adopt the 2000 Uniform Fire Code and the 2001 California Fire Code by adoption of Ordinance No. 1788. Councilmember Cohen stated the staff report indicated additional requirements for construction permits issued by the Fire Department and requested Fire Chief Marcucci detail these requirements. Fire Chief Marcucci explained that with some permits, primarily dealing with hazardous materials, which is part of the Uniform Fire Code, special permits are required; however, for building construction, permits are taken out by the Building Department and Fire does not get involved. He stated the Fire Department has permits for sprinkler systems in the installation of fire protection systems to ensure they are properly installed, and these are the permits referenced. Councilmember Cohen reported that an issue brought to his attention and discussed with Bob Brown, Community Development Director, concerned hydrant replacement being triggered by certain construction permits. Fire Chief Marcucci explained that in certain developments should the amount of water required to extinguish a fire in that facility be insufficient from the hydrant, the developer is requested to replace the fire hydrant. He confirmed this is part of this evening's action. Councilmember Cohen stated that the question to him was not from a developer, rather someone undertaking a remodel project, and it appeared as though he was being tagged with the cost. Fire Chief Marcucci explained that a remodel within the same square footage would not trigger a fire hydrant replacement; however, should the remodel include additional square - footage, it could be a trigger, and he would need specifics on this particular case. Councilmember Cohen stated he would like a better understanding of how this policy is applied, as with this particular individual, he was not given a clear understanding by staff. SRCC Minutes (Regular) 10/21/2002 Page 4 SRCC Minutes (Regular) 10/21/2002 Page 5 Councilmember Cohen also sought further information on the cost equity, and Fire Chief Marcucci indicated he would be happy to discuss this with him. There being no comment from the audience, Mayor Boro closed the public hearing. The title of the ordinance was read: "AN ORDINANCE OF THE CITY OF SAN RAFAEL AMENDING TITLE 4 OF THE MUNICIPAL CODE OF THE CITY OF SAN RAFAEL, ADOPTING THE UNIFORM FIRE CODE, 2000 EDITION, WITH AMENDMENTS, AND THE CALIFORNIA FIRE CODE, 2001 EDITION, WITH AMENDMENTS, AND PRESCRIBING REGULATIONS AND BUILDING STANDARDS GOVERNING CONDITIONS HAZARDOUS TO LIFE AND PROPERTY FROM FIRE, EXPLOSION AND OTHER DANGERS, AND ESTABLISHING A FIRE PREVENTION BUREAU AND PROVIDING OFFICERS THEREFOR, AND DEFINING THEIR DUTIES AND POWERS" Councilmember Phillips moved and Councilmember Heller seconded, to dispense with reading of the Ordinance in its entirety and refer to it by title only, and approve final adoption of Charter Ordinance No. 1788 by the following vote, to wit: AYES: COUNCILMEMBERS: Cohen, Heller, Phillips and Mayor Boro NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: Miller 14. Continued Public Hearing — CONSIDERATION OF AN ORDINANCE OF THE CITY OF SAN RAFAEL REPEALING SECTION 8.12.150 AND ADDING NEW CHAPTER 8.13 TO THE SAN RAFAEL MUNICIPAL CODE ENTITLED "NOISE" (PD) — FILE 9-3-30 x 9-3-16 x 9-3-85 x 1-2 Stating the public hearing was already opened from the previous meeting, Mayor Boro invited Police Lieutenant Kelly to proceed. Lieutenant Jim Kelly stated that in the original staff report on September 16, 2002, staff proposed a new Noise Ordinance to repeal the existing Noise Ordinance. He indicated the new Noise Ordinance was based on sound scientific principle and legal precedent, using decibels as a means of measuring noise and having lines of delineation as to what does and does not violate the law. Lieutenant Kelly reported that since the initial presentation, staff reviewed comments by residents and commercial industries and requests one minor modification. He explained that Mr. Peter Arrigoni, General Manager, Marin Builders Exchange, had requested in a letter dated September 16, 2002, that construction time be extended by one hour, Monday through Saturday, i.e., to 6:00 p.m. Lieutenant Kelly stated the 7:00 a.m. starting time would remain and construction would still be prohibited on Sundays and Holidays, and it was staff's recommendation that this additional hour be added to the original proposal. Lieutenant Kelly indicated that legal counsel would address other concerns expressed by residents. Attorney Lisa Goldfien stated she would address some issues raised through correspondence and note corrections to be made to the ordinance. Referring to correspondence received from Joseph Caramucci, Ms. Goldfien indicated there were three issues she would address: Mr. Caramucci's main concern appeared to be noise produced by trucks traveling back and forth on Point San Pedro Road to the San Rafael Rock Quarry, and in this regard, she stated he was objecting to the ordinance's exemption under Section 8.13.070(H) for vehicles subject to regulation under the California Vehicle Code. Ms. Goldfien explained her research indicated the Vehicle Code prohibits any regulation by local governmental entities on matters governed by the Vehicle Code, unless there is a specific authorization for local regulation. She stated the Vehicle Code does govern vehicle noise and no specific authorization for local regulation of vehicle noise was found; therefore, legal opinion is that the City is preempted from regulating vehicle noise. Secondly, Mr. Caramucci objected to the exemption under Section 8.13.070(G), which exempts work on capital improvements or repairs on public property by the City or its workers, or work by other public entities or public utility companies that have obtained the required permits or approvals. Ms. Goldfien stated staff believes this exemption is necessary. She explained that the repair and improvement work covered by this exemption is the type that generally affects the basic workings of City streets and other SRCC Minutes (Regular) 10/21/2002 Page 5 SRCC Minutes (Regular) 10/21/2002 Page 6 infrastructure, and staff believes the exemption is necessary to enable both emergency and non -emergency work to be done as quickly, efficiently and with as little adverse impact on the public generally as possible. Thirdly, Mr. Caramucci objects to the standard exemption for construction work which is under Section 8.13.050. Ms. Goldfien explained that the times set forth in this section were arrived at subsequent to discussions with Community Development staff and having considered input received at community meetings on the noise ordinance. She pointed out that the hours set forth are those that apply, absent any specific hours set by the City Council or Planning Commission, during the development approval for a specific process. She noted the City still does retain that power. Ms. Goldfien reported that at the last meeting, Council requested staff to advise on the City's power to regulate noise from traffic helicopters, the issue having been raised. She explained that the federal law, and regulations adopted pursuant to it, do set specific noise standards for aircraft, including helicopters; therefore, it is staff's opinion the City is preempted by federal law from regulating helicopter noise. On a related matter, Ms. Goldfien reported that a letter was received from Len Nibbi that raises concern about an ambiguity in the exemption for airport noise under Section 8.13.070(C). She noted Mr. Nibbi's concern was that it may indicate the exemption only applies to public airports. Ms. Goldfien stated it was staff's intention that it would apply to any airport use and to clarify, she suggested the language on Page 13 of the ordinance Section 8.13.070(C) be revised to read: "Aviation, railroad, and public transit operations." Regarding further corrections to the ordinance, Ms. Goldfien stated a corrected addendum was distributed, i.e. Page 11, where the times of Refuse Collection have been amended to read 6:00 a.m. to 9:00 p.m. in four places. Ms. Goldfien reported the noise consultant advised that noise levels for interior noise in multi- family residential structures were not quite correct, and on Pages 6 and 7, Section 8.13.040 A.3. — Interior Noise Levels — the Daytime Noise Level should be 40 dBA intermittent, 35 dBA constant, and the Nighttime Level should be 35 dBA intermittent and 30 dBA constant, and the table on Page 8 should be revised accordingly. Ms. Goldfien stated that noise consultant, Jeff Pack, was available to answer questions, if necessary. Noting truck traffic noise is a significant concern to residents along Point San Pedro Road and referring to Mr. Caramucci's letter, Councilmember Cohen stated this letter quotes from a report from 2000 that "Local jurisdictions are not preempted from regulating vehicle noise emissions by this state standard" — referencing Section 23130 of the State of California Motor Vehicle Code. In her response, indicating she had read the report, Ms. Goldfien stated it was her assumption this was prepared by a noise consultant rather than an attorney; however, it did not change staff's opinion that the City is preempted under the Vehicle Code. She indicated that the particular section quoted had been repealed and does not in any event, affect the general preemption by the Vehicle Code for local regulations, absent an express authorization. Councilmember Cohen stated it was his understanding, confirmed by Lieutenant Kelly, that the City Police Department is authorized to enforce noise regulations as set forth in the State of California Motor Vehicle Code, and he inquired whether this could be referenced in the ordinance. Responding, Lieutenant Kelly stated the repealed section set a standard for vehicles; it depended on the year the vehicle was manufactured, gross weight of the vehicle, whether it was in a 35 mph or less speed zone or above this, and it prescribed certain decibels for each vehicle. He stated the Vehicle Code was changed to put the onus on manufacturers to have decibel standards and prohibit the selling or offering for sale of a vehicle exceeding the manufacturer's decibel standard. From that point on, the Police Department would enforce any modification to the exhaust system that would increase the noise, such as a bypass or defective system. Community Development Director Bob Brown stated the draft of the new Noise Ordinance does specifically have a program that directs the Police Department to enforce the Vehicle Code regarding noise. Councilmember Cohen clarified this to be in the General Plan, not specifically in the Noise Ordinance and he inquired whether this reference could be included in the Noise Ordinance. SRCC Minutes (Regular) 10/21/2002 Page 6 SRCC Minutes (Regular) 10/21/2002 Page 7 City Manager Rod Gould confirmed the City is obligated to enforce all state laws, including the Vehicle Code, and inquired what additional emphasis Councilmember Cohen would like to see. Councilmember Cohen stated that clearly, there is interest in this issue, and he anticipated testimony. He noted the ordinance was silent on vehicle noise and questioned whether there could be language inserted to the effect that "vehicle noise is covered under the Vehicle Code and the City will enforce it." City Manager Gould stated he did not wish to give people the false impression the City would have the Patrol Division out with noise meters chasing semi -trailer trucks on Point San Pedro Road, and he believed the real issue to be the number of trucks to and from the rock quarry in the unincorporated areas of Marin County, which the City cannot regulate. Mr. Gould stated the number of trucks could only be dealt with through court action, which the City has supported in a lawsuit brought by the State Attorney General and the County of Marin. He expressed the hope that this would result in the court ordering a limitation on the number of trucks on the road, which should give residents some relief. Mr. Gould reported a hope had been expressed by a number of residents that adoption of this ordinance this evening would give the City a club to use against the truck traffic on Point San Pedro Road. Further, the attorneys had been requested to comb the Vehicle and Highway Codes to ascertain whether or not there was any leeway or leverage to be gained by the City in doing so, and alluding to Ms. Goldfien's comments, Mr. Gould indicated that staff did not believe there was. Mayor Boro indicated he believed that while Councilmember Cohen was acknowledging the fact that the State sets the standards for noise, he was seeking an acknowledgment that the City would enforce those standards, rather than merely stating they were set by the state. He concurred there could not be consistent monitoring of trucks for compliance; however, should a complaint be received it would be pursued, within reason, as the state looks to the City to enforce their code in this jurisdiction. City Manager Gould confirmed the state also enforces state law in this jurisdiction. Mr. Gould inquired whether Mayor Boro sought language to the effect that the City would attempt to enforce state law regarding truck noise within reason, within its jurisdiction. Referring to Mr. Brown's comment with regard to the General Plan, Mayor Boro stated this could take the form of an acknowledgment that although the state sets the code, the City has a role, if the issue is raised, to ensure vehicles comply with the State Ordinance. While understanding nothing could be done at present with regard to the number of vehicles, Mayor Boro inquired whether noise could be dealt with should it be excessive. City Manager Gould stated that Police Chief Cronin had indicated noise levels created by trucks on San Pedro Road could be periodically monitored, as was done this afternoon, to ensure that trucks traveling on the City portions of the street do comply with the State Vehicle Code, and when found to be non-compliant, they could be cited. Councilmember Heller inquired whether there was language in the Vehicle Code addressing the decibel level of "excessive." Responding, Lieutenant Kelly stated that section 27204 of the Vehicle Code lists a number of types of vehicles, mainly by weight and date of manufacture. With regard to vehicles over 10,000 lbs. gross weight two standards apply: • over 10,000 lbs. after 1981 manufacture and before 1988 — 83 decibels; • over 10,000 lbs. manufactured after 1987 — 80 decibels. As a result of this afternoon's monitoring, Councilmember Heller inquired whether any over that amount had been found. Lieutenant Kelly stated one truck was found to be at 82 decibels, although he was not aware of the year of manufacture. He listed figures supplied by the officer at various locations, explaining that the sound is measured at 50 -feet from the center of the travel lane, on either side: • 70, 72, 74, 77, 78, 80 decibels, with the one exception of the 82 decibel reading. He reported that the remainder were in compliance with the Vehicle Code. Regarding the Standard Exceptions to General Noise Limits, Section 8.13.050, Councilmember Cohen stated that Attorney Lisa Goldfien commented that the Planning Commission or City Council would still be able to impose other limits through project conditions should there be reason to do so. Referring to the language (page 8) "shall be allowed as of right," he inquired how a condition changing this could be imposed if it is allowed "as of right." Ms. Goldfien, attorney, read the entire sentence: "The following standard exceptions to the provisions of Section 8.13.040 shall be allowed as of right, to the extent and during the hours specified." SRCC Minutes (Regular) 10/21/2002 Page 7 SRCC Minutes (Regular) 10/21/2002 Page 8 She continued Under Subsection A. Construction — Except as otherwise provided in paragraph B of this section, or by the Planning Commission or City Council as part of the development review for the project, on any construction project on property within the City, construction, etc., shall be allowed between the hours of 7:00 a.m. and 6:00 p.m., Monday through Friday, and 9:00 a.m. and 6:00 p.m. on Saturdays, etc. Councilmember Cohen confirmed with Ms. Goldfien that this gives back the ability to regulate projects on a specific basis with noise limitations. Returning to the question of trucks, Councilmember Phillips stated it was his understanding the City may be limited as to enforcement. Should one stand-alone truck meet the decibel specification, he questioned whether a convoy would create more of a decibel impact, and inquired whether there was a possibility of addressing this issue. Lieutenant Kelly stated it definitely would create more noise; however, the Vehicle Code specifically addresses the manufacturer's standard for the individual vehicle and does not at all address multiple vehicles. Councilmember Phillips stated it, therefore, does not address the City's particular situation where two or three trucks could be traveling pretty closely at the same rate of speed. City Manager Gould stated that one of the outcomes hoped for through the litigation brought by the state, that staff attempted to negotiate between 2000 and 2001, was a very strict staggering of the release of trucks from the quarry and down Point San Pedro Road, to eliminate the convoy effect, which is offensive and dangerous. He expressed the hope that the court would grant this leeway to enforce meaningful regulations. With regard to the ordinance, Councilmember Phillips assumed this could not be incorporated without appropriate court action. City Manager Gould stated that, as he had attempted to explain to a number of residents, since the intensification of the operation of the rock quarry in 1997-98, staff had combed the Codes to ascertain what leverage the City had to regulate a land use outside of its own jurisdiction. He indicated that although the City can regulate the speed of trucks on Point San Pedro Road, and do so, staff is finding little else to use to lever some regulation and control of this land use in the County of Marin. Mr. Gould stated that given the breakdown of negotiations for that two-year period, there remains litigation and this is where the hopes of the public interest are pinned. Councilmember Phillips confirmed that Mr. Gould was clearly suggesting this is not something the City could appropriately include in the noise ordinance and is precluded from so doing. Having ascertained that approximately six people from the audience wished to address the City Council, Mayor Boro requested that comments be limited to from three to five minutes. Joseph Caramucci thanked the Mayor and Councilmembers for taking the time to read the material he submitted. He reported having lived in the Point San Pedro Road area for thirty-two years, sixteen years before the Dutra quarry and sixteen years afterwards, noting the noise is intense. Mr. Caramucci stated that City Police Officers took sound measurements this afternoon ; however, he indicated officers are not present at 4:40 a.m. when trucks are traveling at 70 decibels, etc. He reported that his bedroom is 40 -feet from his property line and 20 -feet to the traffic road. Two years ago he underwent surgery for sleep apnea, a physical condition which is not helped by trucks passing his house from 2:00 a.m. — 5:00 a.m., when Mr. Dutra opens the gates to allow trucks in. Mr. Caramucci stated residents had been informed nothing could be done about this as it is a state truck route; however, he indicated the City approved the truck route. He requested either limiting the hours of the truck route from 10:00 a.m. to 2:00 p.m. or lowering the speed limit to 25 mph for trucks, as something had to be done. While not an attorney, he bowed to City Attorney Ragghianti and the other attorneys present, and stated that someone in the audience would address their misinterpretation of the law. With regard to Exemption G. — Public Projects, Mr. Caramucci stated they had been impacted by "the emergency work to be done on Lincoln Avenue." He stated trucks came at night to obtain asphalt from the Dutra plant on Point San Pedro Road for a City project. This, he believed, could have been controlled by the City's specifying that the asphalt be brought from Point Richmond or Petaluma. He believed the exemption permits any public utility to obtain asphalt from Mr. Dutra at night and run it from San Pedro Road to the project. He reported that one of Mr. Dutra's comments was to the effect that he could make millions of dollars by supplying product from the Point San Pedro Road plant for nighttime operations. Mr. Caramucci stated that the noise element for the draft plan does not even mention Point San SRCC Minutes (Regular) 10/21/2002 Page 8 SRCC Minutes (Regular) 10/21/2002 Page 9 Pedro Road having sound problems. With regard to comments concerning public hearings, Mr. Caramucci reported that neighbors attended the demonstration at the San Rafael Community Center and were heard. He indicated that staff had members of the Chamber of Commerce, Contractors Association, Marin Sanitary Service and a representative of the Federation of Neighborhoods; however, no one from East San Rafael was invited, leaving three business groups and one representative assisting in the plan. Mr. Caramucci stated he did not wish to see product coming from the quarry at night; they are constantly bombarded and while recovering from surgery he could not go in his backyard because of the noise, dust, etc. He requested that staff conduct further research to arrive at a solution. Bonnie Marmer stated she resides on Point San Pedro Road with her family and reported her front door is approximately 20 -feet from where the trucks pass. She stated her front yard is small and filled with roses and is a nice place for her daughter to play were it not for the trucks. She stated the noise, which she believed could be regulated by the City Council, is disrupting their lives in every respect, their house shakes, they cannot sleep, their daughter cannot nap and she cannot utilize the rocking chair in the front room. Further, she cannot have the doors or windows open. Being an attorney, Ms. Marmer respectfully disagreed with Counsel with regard to what power the City Council has. She explained her review of the Vehicle Code suggests that the City Council has the power and authority to contact the state and request that the state authorize the restrictions required and needed by the residents. Ms. Marmer reported her neighbors were present this evening to state that the City Council must act and has the authority to approach the state. In turn, according to the Vehicle Code, the State would hold public hearings on the issue. She stated the procedures are set forth in the Vehicle Code and to her knowledge, those sections have not been repealed, i.e. Sections 35701 and 35702. She added that a quick glance at the Vehicle Code would demonstrate all that is necessary is to request help from the state, which would then be required to hold public hearings. She stated that subsequent to public hearings, there would be a determination as to whether or not the City could regulate and she emphasized it only takes a referral to the state for these public hearings to take place. Frances Nunez stated she resides in Santa Venetia across from the San Rafael Airport. She indicated that what the members of the San Rafael Vision Plan envisioned for the airport property, and was included in the North San Rafael Vision Plan, was basically that the General Plan land use designation should be amended to Parks and Open Space and the General Plan policies amended to be consistent with the covenant. She indicated they envisioned the airport the way it is, and, in fact, the current General Plan indicates that the airport as is, is fine; however, any increased noise would be a problem. Ms. Nunez reported that eighteen months ago, the City Council promised to include restrictions for the airport in the new noise ordinance, which was when the Use Permit was renewed. She stated it was not included in the ordinance, as supposedly, the FAA regulations supersede the City's ability to do anything; however, her research indicates there are two issues: One being the use of police power by localities to control aircraft in flight, which the courts have ruled is preempted by the Federal Government; and With regard to the use of police power by airport owners to control noise by restricting certain types of aircraft and the hours of use, Ms. Nunez reported the court decided this is permissible if reasonable, non -arbitrary and non-discriminatory. She stated that the Ninth Circuit Court Federal decision was that local airports have a right to impose local regulations, including single event noise limits, to limit their liability from lawsuits resulting from airport created impacts — Citv of Santa Monica Airport Association v. Citv of Santa Monica. Ms. Nunez stated that section 5004 of the State Code regulations specifically notes that "it is not the intent of these regulations to preempt the field of aircraft noise limitation in the state. The noise limits specified herein are not intended to prevent any local government to the extent not prohibited by federal law or any airport proprietor from setting more stringent standards." She stated that the California Land Use Planning handbook is available on the Internet; this is created by the Department of Transportation, Department of Aeronautics, precisely for localities to use in figuring out how to have land use compatible with airports. Ms. Nunez stated that Bob Brown, Community Development Director, had indicated he was unaware of SENEL, or SELL, a single event, and she found this difficult to understand as there had been hearings concerning aircraft over -flights, as well as take -offs. Ms. Nunez referred to a diagram depicting the duration of the noise and the maximum noise amount. She explained that noise such as a shotgun going off could be a one instant noise of 92 decibels and a helicopter overhead could also be 92 decibels; however, lasting five minutes. SRCC Minutes (Regular) 10/21/2002 Page 9 SRCC Minutes (Regular) 10/21/2002 Page 10 Referring to a Mr. Rich Illingsworth who conducted a noise study for the City, she indicated he was very familiar with this, having worked for the Department of Transportation. Ms. Nunez stated a Use Permit annual hearing for the airport was scheduled before the Planning Commission on September 24,, 2002, which had an alternative to the noise ordinance; however, this hearing was continued to a date uncertain. Quoting from the draft resolution for this hearing, she stated "the established baseline shall be L Max 92 decibels," not SENEL, "at the location indicated as Site #1." For those unfamiliar with the airport, she reported that Site 1 is down at the east end of the runway, across from the portion of the airport under County jurisdiction. She stated her first concern was that 92 decibels does not impose a restriction, rather gives permission to do anything they wish. She explained this is a noise baseline and any noise can be made at this airport provided a single incident does not go higher than 92 decibels. In evaluating helicopter decibels for landings provided by the BLM, marijuana eradication, Ms. Nunez stated she found the landings were all 91.1, 87.3, 90.7, all around 92 decibels, which to her is very worrisome. Regarding flyovers, she understood the FAA has not set any flight paths for helicopters, rather they are allowed to do whatever is safe and basically fly at very low levels, unlike aircraft. She stated these flyovers are also approximately 89 decibels at 500 -feet. Referring to the decibel level of 65 for the Helipad in the current General Plan, Ms. Nunez stated this is an industrial area of San Rafael, right on the Bay, and she assumed this helipad would now be included in the ordinance as the word "aviation" had been substituted for "airport." Ms. Nunez stated that those in San Rafael who went through the Vision process believed they were discussing the whole airport, and no one knew part of it was under County jurisdiction. In her opinion, the only way to regulate the airport is by land use, which the City is already doing; however, the big unknown is the County jurisdiction. She reiterated that people in the Vision process believed they were addressing the whole airport and their trust would be betrayed in the entire process if the City did not make some type of agreement with the County to ensure the County would uphold the Vision. Hugo Landecker, Gerstle Park, stated that fortunately, his area does not have a "Dutra" or airport. He noted the noise ordinance was beaten around somewhat, resulting in a fairly workable scheme. While not sure what direction Council would take on the vehicle noise issue, Mr. Landecker stated that rather than restricting vehicle noise to trucks, vehicles in general should be addressed. He again complimented staff on the good work. Mr. Landecker stated he had a concern today regarding the Sound Performances, specifically in terms of sound performance in a park and the impact on nearby residents. He indicated the ordinance addresses an 80 dBA limit, which he considered somewhat high; however, it could be a workable plan and he suggested Council request staff to address this. Harry Winters stated he had resided in San Rafael for almost 50 years and had been the president of the neighborhood association for half this time. He commented that this ordinance gives the Police Department an enforceable document; however, he believed it may be a lot less than meets the eye. Perusing it carefully, he stated it speaks about daytime levels of 60 decibels, intermittent 50 decibels, etc., in residential areas, and unequivocally states that "no person shall produce, suffer, or allow to be produced by any machine, animal, device, or by any other means, within the interior of a multi -family residential structure, a noise level greater than the following, when measured through a common interior partition." Mr. Winters stated that following the table based on this — Table 8.13-1, is Section 8.13.050 — Standard Exceptions to General Noise Limits. He reported that the standard exceptions for residential allows a 90 decibel level and lists under the definitions of residential noise levels, machinery such as chain saws, power mowers, etc. He stated that this exception of 90 decibels covers almost all of the instances of noise that bothers people in neighborhoods. He indicated it exempts residential power equipment, which it defined as all power tools conceivably used by a homeowner; therefore, the exemption at 90 decibels trumps all the lower decibel levels, as listed in Residential Property Noise Limits on page 6 of the ordinance. Mr. Winters stated it appeared to him the ordinance does give the Police Department certain hours and prohibits commercial construction, etc., on Sundays; however, the exemption for residential permits construction, the use of power equipment and a 90 decibel level, which he believed would be the case in nine out of ten disturbances in a neighborhood. At the time he received this material last week, Mr. Winters stated he also received the Kaiser Senior Outlook magazine, which contained an article on "how the ear works." In this article he stated they cite authoritative statistics indicating that more than 75 decibels on a regular basis can cause problems, and 85 decibels is dangerous. Mr. Winters commented that the SRCC Minutes (Regular) 10/21/2002 Page 10 SRCC Minutes (Regular) 10/21/2002 Page 11 ordinance contains a 90 decibel exemption that would apply to most of the noise made by a residential homeowner during the daytime hours. He believed the wording in the ordinance to be extremely inconsistent, where it lays down the law concerning noise levels and then has an exemption that allows 90 decibels. He was of the opinion this should be corrected to avoid contradiction and suggested the 90 decibel level be further evaluated. Victoria DeWitt, 40 Fremont Road, San Rafael, made the following points: Regarding amplified music, she indicated that for the past several years she had a problem with a neighbor who permits his band members to practice at his house, and this includes amplified sound. She indicated the police had visited this neighbor on numerous occasions over the years and even suggested he install a specific type of insulation to dampen the sound; however, the neighbor did not feel compelled to install insulation or move his practice to a more suitable location and the police continue to respond to the noise complaint. Based on this draft ordinance, Ms. DeWitt inquired what steps the police could take to stop the continuing noise nuisance caused by the regular or frequent practicing of a band, which includes amplified music, in a residential neighborhood. Ms. DeWitt stated it was her understanding this would fall under Section 8.13.030, and not Section 8.13.050 C., which describes sound performances. She reported having previously provided Lieutenant Kelly with a copy of the City of Santa Rosa's noise ordinance, which contains a section specifically addressing amplified sound and questioned why the City of San Rafael's noise ordinance did not do likewise. Ms. DeWitt also questioned whether the City of San Rafael should require a Use Permit for a band that practices on a regular basis in a residential neighborhood. Her reasoning was that this activity constitutes more of a business use and should not be allowed in a residential neighborhood. Requiring a Use Permit would allow the City to place restrictions on the hours of practice and level of noise, as well as requiring insulation, etc., as with a commercial establishment. Ms. DeWitt stated a Use Permit would not be required for occasional jam sessions or occasional parties using amplified music and she believed these situations would fall under Section 8.13.030. Ms. DeWitt questioned why a resident in his or her home must listen to amplified music from a neighboring property until 10:00 p.m. on Friday and Saturday when a resident in the downtown area living next to a property with amplified music can force the neighboring property owner to install insulation to dampen the sound. She stated that residential areas should have at least equal if not more stringent restrictions on amplified sound than a commercial area. For her second point, Ms. DeWitt believed the decibel levels to be high. She referred to Section 8.13.040 A. 1. and stated that a daytime decibel reading of 60 is higher than the maximum allowed in the cities of Mill Valley, Sausalito, Larkspur and Santa Rosa, the cities she reviewed. She indicated that these cities have a maximum decibel split equally between 50 and 55 decibels for residential areas. Ms. DeWitt stated that the draft ordinance also allows very generous exceptions to the general noise limits by allowing up to 95 decibel levels for almost every piece of machinery and equipment, including leaf blowers. She reported that the equipment described under the definition of "Residential Power Equipment" normally is the source for noise complaints. On the other hand, she stated that Mill Valley's noise ordinance, which was just updated last year, generally does not allow more than 60 decibels at construction projects. Mill Valley will allow a maximum of 80 decibels at a construction site only if the noise occurs for less than one minute per hour. Thirdly, Ms. DeWitt stated she did not agree with the exceptions provided for owner/builders. She explained that a power saw makes the same amount of noise whether operated by a licensed contractor hired by the owner or whether the owner personally operates it. She stated that the draft ordinance exempts not only the property owner, rather "friends or other persons." She put forward the scenario of a licensed contractor being a friend of the property owner, whereby, that contractor could work until 8:00 p.m. Monday through Friday and all day Saturdays, Sundays and Holidays. Ms. DeWitt suggested the owner/builders be subject to similar time restrictions as any builder. She reported having had two neighbors who were owners/contractors and every weekend she was surrounded with noise, which is disruptive. With regard to Section 8.13.050 A — Construction — Ms. DeWitt inquired whether this section allowed construction management plans for specific construction projects to be more restrictive than this ordinance. She explained that her neighborhood recently responded to a construction management plan for a specific new home construction that is more restrictive than this noise ordinance, and is primarily due to access problems. With regard to Section 8.13.060 — Exceptions allowed with permit — Ms. DeWitt stated item D indicates that any person not in agreement with the decision of the Community Development SRCC Minutes (Regular) 10/21/2002 Page 11 SRCC Minutes (Regular) 10/21/2002 Page 12 Director with regard to exceptions can appeal to the City Council, and she inquired what the current cost to appeal was. She stated it had been her experience that the cost of appealing is prohibitive for most individuals and as a result, the cost negates the process and most constituents would be prevented from appealing to their elected officials. Ms. DeWitt stated that item B. speaks to a fee to accompany an application for an exception permit and she suggested that this fee be large enough to include the cost of an appeal should a neighboring resident wish to appeal. Should there be no appeal, she stated the City could consider refunding that amount to the applicant. Lastly, Ms. DeWitt inquired whether there was provision for repeat occurrences, e.g., would the fines escalate for recurring noise violations and what the current fines are. Carolyn Jarvis, Terra Linda, stated her objection was to the exemption for Marin Sanitary Service. She explained they would be allowed to start making noise an hour before others in residential areas and it had been her experience in attempting to get them to be reasonable over the past seven years, that they are not cooperative. She reported that on Monday last they were smashing glass at 5:30 a.m.; therefore, with an exemption until 6:00 a.m. she did not foresee it providing any relief. Residing on quiet Hickory Lane in Terra Linda, she did not see a reason for their starting within a block of her home on Monday, Tuesday and Wednesday mornings. Ms. Jarvis stated she had tried working with Code Enforcement and had the City Attorney give Marin Sanitary Service an opinion on the contract they signed with the City of San Rafael. Ms. Jarvis stated that Community Development Director Brown requested Code Enforcement not to pursue this issue with Marin Sanitary Service. She commented that she had lists of times and a story to tell should someone wish to contact her, noting she had told this story to Mr. Brown, Assistant City Manager Nordhoff, Assistant City Attorney Guinan, and since the year 2000, had been attempting to obtain information concerning the exemption and why Marin Sanitary Service has access to this document before a private citizen. She indicated she did not belong to any group and merely desired quiet until 7:00 a.m. Further, if everyone else has to follow this rule, she questioned why Marin Sanitary Service was exempt. Ms. Jarvis stated that according to Lieutenant Kelly, Marin Sanitary Service claims their trucks are under 95 decibels and she would like to know whether this is at operating speed, during the smashing of glass or backing up. She stated that starting that noise at 4:30 a.m. in the quiet valley is extremely disruptive and is the only sound to be heard before 7:00 a.m., which was unreasonable. Ms. Jarvis inquired why one private for profit company with a contract with the City is receiving an exemption to that extent. Alan Scotch, Santa Venetia, concurred with the previous concern that the airport could be anticipating a heliport. He referred to the previous speaker on this subject who addressed the 91 decibels for helicopter landings and 89 for flyovers, and stated he was unsure as to whether this was louder than aircraft taking off; however, assuming it was louder, there would be a case for stating that 85 decibels is the limit. Mr. Scotch stated that helicopters are much louder than aircraft and make more noise for a longer period of time, and this is mainly the reason he did not wish to see helicopters flying over his roof. He reiterated there possibly could be ways to impose some type of limit on the airport with regard to helicopters. Reporting that he used to live in a City that banned leaf blowers, Mr. Scotch stated that assuming this could be legally done, he would like the City Council to give it some consideration. He stated a leaf blower operates outside his home at 7:00 a.m. once per week and being unsure of the code procedure, he inquired how he could legally prove this noise is above the decibel limit. Mayor Boro stated Lieutenant Kelly would address this question at the appropriate time Presuming he could have someone come and prove this leaf blower was above the legal limit, Mr. Scotch stated that while the operator would refrain from using it outside his home, in the process of his job, he would continue to use the leaf blower elsewhere. He suggested that perhaps leaf blowers should be banned. As Mr. Scotch raised the question of motorized scooters, Mayor Boro stated there were a lot of issues to be discussed this evening and people were waiting patiently. Noting Mr. Scotch lived in Santa Venetia, Mayor Boro stated the City did not regulate noise there and could do nothing. He stated the City does regulate the airport, indicating he appreciated Mr. Scotch's comments on this issue, and while he had not understood there was a jurisdictional issue, it would certainly be pursued. Mr. Scotch stated he wished to bring Council's attention to motorized scooters when there was a clear option of electronic scooters. SRCC Minutes (Regular) 10/21/2002 Page 12 SRCC Minutes (Regular) 10/21/2002 Page 13 Tommy Kennedy, Manager, Clock Tower Apartments, Lincoln Avenue, stated he had been waiting almost two and one half years for the ordinance to pass. He reported that Fourth Street Tavern is next door to his property and with constant noise, it is necessary to call the Police Department at night in an attempt to reduce the level of band noise. He thanked Lieutenant Kelly and staff for the great job with the ordinance. Linda Levy, Santa Venetia resident, stated she wished to reiterate previous statements. While recognizing the City does not have full jurisdiction and being in favor of the airport, residents wanted it to remain as it is and not get louder. She was in favor of including some specific wording in the ordinance to assist with this issue. Mayor Boro stated there would be some discussion from staff regarding the airport. John Hale stated he also lived adjacent to the airport and appreciated the anticipated discussion on noise. He reported that since the new hangers were built, it appeared as if planes were getting bigger. While not having a problem with the airport, he did have a problem with noise getting louder and would appreciate the level being maintained as it is. Mr. Hale indicated he would like to see some provision made for a restriction on night landings at the airport, although there have not been many. Having contacted the City Council on this issue, he was informed nothing could be done; however, he indicated the noise was very disturbing at night. There being no further comment from the audience, Mayor Boro closed the public hearing Mayor Boro requested staff to address the issue of the airport with respect to the County and how it is intended to arrive at some common standards for the entire airport that the whole community could live with. With regard to the question of helicopters, Councilmember Heller stated it was her understanding they were not allowed. Community Development Director Bob Brown concurred with Frances Nunez, stating the City regulates the airport with a Use Permit and helicopters are not allowed. He indicated the number of aircraft based at the airport is regulated, the length of the runway is regulated and should they propose to extend it, the City has Use Permit authority to review this. Mr. Brown stated the City does not have an opportunity to reopen the Use Permit and make changes to it unless the airport is out of compliance, violates conditions or creates a very significant public nuisance; however, operating within the parameters of the Use Permit issued last year, staff does not have the authority to change those Use Permit conditions. He recalled suggestions having been made by residents to the effect that the City should attempt to impose similar restrictions on the portion of the airport in the County jurisdiction, through an MOU (Memorandum of Understanding) or Joint Powers Authority; however, this is an inter - jurisdictional issue that would require Council direction. With regard to the question of the City regulating aircraft noise through the noise ordinance, or whether it is preempted, Mr. Brown stated he would defer to the attorneys on this issue. With respect to working with the County, Mayor Boro stated he gathered from public comment there was support for this, and it appeared staff should work very proactively with the County as the standards for the airport should be the same on both sides of the line. He stated that for those who live around the airport, whether in the City or County, there should be consistency, and he hoped staff could pursue this issue and bring it back to Council. Community Development Director Bob Brown stated staff would be happy to take direction to pursue something jointly. With regard to the question raised by Ms. Nunez concerning the condition the City Council did impose on the Use Permit, i.e., attempting to establish some noise threshold for the airport as part of the noise ordinance, Mr. Brown stated staff is attempting to address this through the Use Permit by establishing an upper range, and should this be legal, which is the real question, he would be happy to work with the residents to revisit how the noise is measured. Deputy City Attorney Eric Davis stated staff had looked very carefully at the law pertaining to regulation of aircraft noise. Beginning in 1977 when the United States Supreme Court looked at the Federal Aviation Act, and the amendment to that act known as the Noise Control Act of 1972, Mr. Davis stated the Supreme Court of the United States held that there was such a pervasive and comprehensive scheme in the federal law to regulate aircraft related noise, that there was an implied preemption by federal law of any local regulations with respect to aircraft related noise. He reported one exception recognized by the courts that pertains to municipally owned airports. Mr. Davis explained that should a municipality own an airport, in order to SRCC Minutes (Regular) 10/21/2002 Page 13 SRCC Minutes (Regular) 10/21/2002 Page 14 protect itself from liability for inverse condemnation, the courts have stated that "as a landlord of your airport, you can restrict things such as night flights and have regulations of noise limits" in order to limit liability; however, this is limited to a municipally owned airport and does not apply to a situation where the City wished to regulate a privately owned airport. Mayor Boro inquired whether this could be done through land use planning through a Use Permit. Responding, Deputy City Attorney Davis stated the courts are pretty clear in that to the extent a noise related restriction is being imposed on aircraft, this is not possible. Mr. Davis believed Mr. Brown's comments related to whether something could be done as part of land use controls in terms of what could be improved in the future, i.e., what is permitted that may have some impacts on future noise. He stated it appears pretty clear presently that it is not possible to restrict noise limits with respect to a privately owned airport. Councilmember Cohen stated that should there be direction to staff to communicate with the County regarding a common approach, and there was a way to address this through the land use regulation, the City should seek to have the County share that approach for the areas under their jurisdiction. Further, with reference to the notion of a possible location of a heliport, Councilmember Cohen stated it should be made clear that this is not what the City has in mind and to the extent a portion of the airport is in County jurisdiction, the County should be requested to make it clear as a statement of policy that they would not approve a heliport on their portion of the property. While having no reason to believe this is the intent, Councilmember Cohen stated when discussing a common policy with the County, this issue should be included, as well as the attempt to limit operations to what is currently there. Moving to the issue of San Pedro Road and truck noise, Mayor Boro stated Bonnie Marmer cited a section of the Vehicle Code which states the City could request a hearing from the state, and he invited staff's response. Assistant City Attorney Gus Guinan stated Vehicle Code Section 21 makes it very clear that the Vehicle Code preempts all other regulations throughout the State related to vehicles, parking, traffic, or anything to do with roadways and vehicles upon them. Mr. Guinan reported that section also states that local agencies can regulate things like parking, stop signs, etc., if a specific statute in the Vehicle Code gives local agencies the authority to so do. With regard to Section 35701 cited this evening, Mr. Guinan stated this deals with giving local agencies the authority to regulate the type of vehicle that can travel on a particular roadway by weight, not by noise. In effect, Mr. Guinan reported, the Vehicle Code sets out certain weight restrictions for streets and highways, then this provision provides a mechanism, correctly identified by the speaker, by which a local agency can, through the public hearing process, lower that maximum weight restriction on a vehicle. As an example, Mr. Guinan stated that should the State Statute indicate the maximum weight would be 10,000 lbs., through this process, vehicles could be limited to 5,000 lbs. on a given street, and again, it would be necessary to go through the legislative process, hold a public hearing and obtain approval of the ordinance from the State Department of Transportation. Mr. Guinan stated this is a power available; however, it does not address control of noise. Mr. Guinan stated that Section 21101(c) deals with giving local agencies the right to prohibit certain types of vehicles from certain types of streets, and while this is another power available, it does not address noise. Assistant City Attorney Guinan explained that truck routes are usually set with reference to a weight and do not deal directly with noise. Should there be a desire to attempt to restrict truck traffic on San Pedro Road by these weight restrictions, Mr. Guinan stated that potentially, a further problem would need to be considered in that since San Pedro Road is the primary ingress and egress for this business, whether accepted as a good, bad or indifferent business, should the City restrict, unreasonably, the weight of trucks traveling on that road, as a public entity, it could be accused of taking the individual businesses' property if such regulations in effect shut them down. Mr. Guinan stated he had no indication, nor had he studied or researched the issue to ascertain if this would be the case; however, he indicated it is a potential that needs to be kept in mind if the weight restriction regulations were to be the vehicle to approach the problem on San Pedro Road. Following up on this and unrelated to the noise ordinance, Mayor Boro stated that either Belvedere or Tiburon had enacted an ordinance taxing at a certain rate, construction trucks traveling over their city streets because of the impact they have on the streets. He inquired whether conceptually, this would be applicable to this use, whether it could be done in the absence of granting the Use Permit, or whether nothing could be done because the City does not have control of the quarry. City Manager Gould stated a study is being conducted to determine whether it would be appropriate and justifiable to charge an impact fee on the residential refuse hauler for use of the SRCC Minutes (Regular) 10/21/2002 Page 14 SRCC Minutes (Regular) 10/21/2002 Page 15 City streets; however, this is in connection with a use the City controls through a franchise agreement. He indicated he would need to defer to the attorneys as to whether or not such an impact fee could be imposed on a land use or operation outside the City's jurisdiction, over which it has no control. Mayor Boro stated this issue could be pursued independently City Manager Gould stated that as pointed out by Mr. Brown, these impact fees in Tiburon and Belvedere are on new construction that the cities approve in those jurisdictions and have some control over. He added that this would not be an issue if the City were in a position to regulate the San Rafael Rock Quarry. Councilmember Heller stated that Mr. Caramucci inquired about changing the state route and then suggested lowering the speed limit. Commenting that speed was perhaps a factor in the noise level, she inquired whether trucks speeding had become a problem. Responding, Lieutenant Kelly reported that surveys were conducted on all trucks on San Pedro Road and the results indicated that the average truck is traveling at 33 mph, with the average automobile traveling at 37 or 38 mph. He confirmed for Mayor Boro that this pertains to all hours of the day. Councilmember Cohen requested confirmation that despite Ms. Marmer's comments, the City could not request a state public hearing on regulating the noise threshold of these trucks. Responding, Assistant City Attorney Gus Guinan stated this was what he wished to communicate. He verified he had not looked at the section before this evening; however, it appeared to be weight related only. Councilmember Cohen stated he would certainly wish to have this issue return should it turn out to be noise related and a public hearing could be requested. With regard to the weight issue, while not being part of this evening's action, Councilmember Cohen stated it could offer an interesting possibility in getting at what the real issue is, noting that Mr. Gould considered it is the increasing volume of truck traffic. He stated that while supporting the lawsuits the County and state are pursuing on this issue, he believed this could take years. The hope was for a speedy resolution; however, with appeals, etc., he again stated it could take years. Should the City have the ability to regulate weight by permission of the state or requesting a public hearing and receiving public testimony, Councilmember Cohen inquired whether it would be possible to conceivably, limit hours with respect to weight. Expanding, he wondered whether it would be possible to state that heavy truck traffic could only operate on these routes during certain hours, with a weight restriction during off hours. Councilmember Cohen indicated his belief that this would negate the takings issue and accommodate the residents' requests, at least in terms of hours of operation of truck traffic. Assistant City Attorney Guinan stated he was not prepared to respond to this question this evening; however, he would be glad to research the issue and provide a response. Taking this to the logical conclusion, City Manager Gould stated that assuming this could be done and the City was successful in limiting the weights of trucks during certain hours, he questioned whether this would impel the quarry to send additional trucks, generating more noise and traffic congestion and the other associated impacts. Councilmember Cohen stated ultimately, the hope is that the court would impose operating restrictions on the volume of truck traffic overall; however, he reported that a case on the Peninsula had been going on for eight years. He stated the City should be evaluating every instance to respond to concerns of constituents along Point San Pedro Road, and ascertain whether some regulation could be imposed to deal with some of the impacts. He understood it would be better to regulate the use as a whole; however, the City does not have that ability and the County has not been able to exercise whatever ability they have, which is why they are in court. Councilmember Cohen stated that should the City have the ability to regulate some of these impacts, staff should at least ascertain the extent of that ability, and he requested an answer on the question of limiting certain weights to certain hours and a public discussion on the consequences of this. Noting that Mr. Caramucci was irate concerning the City's not controlling the delivery of product during the night for a construction project, Councilmember Heller stated that although desirable, she could not envisage how the City could begin to control this. City Manager Gould stated he believed delivery of material from a certain direction or along a certain route could be specified in the bid documents; however, it would affect the price and he pointed out that Lincoln Avenue is the first street to be completely reconstructed in over 23 years. SRCC Minutes (Regular) 10/21/2002 Page 15 SRCC Minutes (Regular) 10/21/2002 Page 16 Mayor Boro stated what was done was done and there may have been good reason; however, the question was, should other jurisdictions decide they want to receive their materials at those hours of night, whether the City could do anything presently. Assistant City Attorney Guinan concurred with City Manager Gould in that this could be specified in the bid documents; other than that, he believed it would be stepping across the legal line to make the requirements outside of the bid documents. Mayor Boro inquired why the City provides the exception. Attorney Lisa Goldfien stated the intention of the exception was to exempt City workers, public entities and public utilities to the extent they cannot be regulated. She stated to have power distinct from the noise ordinance to regulate them by issuing a permit, etc., hopefully, the noise mitigation issues could be addressed there; however, she indicated there could be some public entities the City could not regulate, and this would need to be evaluated on a case by case basis. Mayor Boro inquired why the City was flatly granting an exemption, as it would not only be for the City of San Rafael, rather any city in the community. Should it be possible, as a City, to control this through the bid documents, he inquired why it was necessary to allow this to happen. Referring to page 13 of the draft ordinance, Section 8.13.070 — Exemptions G., "work on capital improvements, or repairs on public property by employees or contractors of the City or other public entity or public utility companies, which have obtained any required approvals or permits for such work," Attorney Lisa Goldfien stated that to some extent it was a policy decision and to some extent a means of not having to know for every case whether that particular public entity could actually be regulated. She added that it is intended to afford the ability to regulate them to the extent possible in the permit arena. Mayor Boro stated he did not feel comfortable with this exception as it appeared rather broad. He concurred that a lot goes on the City cannot control; however, should it be possible to control some issues, he would not favor the idea of a blanket exception to capital improvements, for this City or any other public utility company. He indicated there should be some findings or reason rather than an automatic exemption. Referring to the issue of refuse collection raised by Carolyn Jarvis, particularly the hour of commencement which is specified as 6:00 a.m., Councilmember Phillips stated that at least in his area, Terra Linda, they begin exactly at 6:00 a.m., and inquired whether this was currently in the contract with Marin Sanitary Service. Assistant City Manager Nordhoff stated the current agreement provides for a 6:00 a.m. pick-up time for refuse and recycling. Commenting he perhaps had misunderstood, Councilmember Phillips stated that a couple of times 4:30 a.m. was mentioned, which would be somewhat disturbing, and he found this surprising. He inquired whether there were any instances where Marin Sanitary Service starts at 4:30 a.m., other than the commercial area. Mr. Nordhoff confirmed this would be commercial rather than residential areas. Noting Hickory Lane was a long way from commercial, he questioned whether this was the area in question. Lieutenant Kelly stated he had telephone conversations with Ms. Jarvis on this subject and it definitely was the residential aspect. He stated her complaint was that Marin Sanitary Service is being given an exemption to commence an hour earlier than others. Responding to Councilmember Phillips' comment regarding the 4:30 a.m. issue, Lieutenant Kelly stated that Ms. Jarvis may have made a statement concerning hearing noise at 4:30 a.m.; however, his telephone conversations with her primarily concerned the fact that Marin Sanitary Service could start at 6:00 a.m. instead of 7:00 a.m. Lieutenant Kelly reported he possessed a letter from Marin Sanitary Service explaining the starting times. Staff confirmed for Mayor Boro that there was no change to the current times in the draft ordinance. Councilmember Phillips stated that 6:00 a.m. at times appeared early; however, he was satisfied it was a necessary part of their operation. Assistant City Manager Nordhoff stated part of it was also to alleviate traffic situations in SRCC Minutes (Regular) 10/21/2002 Page 16 SRCC Minutes (Regular) 10/21/2002 Page 17 connection with school, work, etc., and Councilmember Phillips concurred provided they are not in violation of what he recalled from the franchise agreement. Referring to Ms. DeWitt's situation with band practice noise, Lieutenant Kelly stated she does have a neighbor who has an amateur Rock and Roll band and the Police had responded to that location on many occasions. He reported the officer attempted to mediate the situation, obtained recommendations of types of material to wall off the interior of the house in an effort to deaden the noise; however, basically this was refused. Lieutenant Kelly stated there could be some confusion as to whether they are a sound performance; however, he confirmed they are not and would simply fall under Section 8.13.040. He stated that should they make a constant noise of more than 40 decibels in a residential area at night, they would be in violation and this is the section of the ordinance the Police Department would use. He confirmed they definitely are higher than 40 dBA; therefore, would be in violation and the officer would contact them and take appropriate action. Councilmember Heller inquired as to the definition of "appropriate action" in this instance. Responding, Lieutenant Kelly reported that police staff is working with the City Attorney's office presently to establish procedures, and there would be some discretion. In a case such as this where the noise is recurring, a citation would probably be issued and multiple citations should the noise continue. Lieutenant Kelly added that for the most part, the procedure would remain as it is currently. He explained that the complainant's goal is for the noise to cease or be lowered to an acceptable level and should this be obtained through voluntary compliance, it would be adequate; however, for those who refuse to comply or repeat the offense, enforcement methods through citations would be used. In the event the offense continued, Councilmember Heller inquired whether the citation would include a monetary fine. Responding, Deputy City Attorney Eric Davis stated this would depend on whether it was proceeded with administratively or criminally. He reported that it is not possible to proceed under the Administrative Citation Ordinance, which, pursuant to the schedule of fines, allows a basic fine for a first offense, rising by 25% for a second offense and 50% for a third. To proceed criminally, depending on whether or not the citation was for an infraction or a misdemeanor, the amount of the fine would be more. Mr. Davis reported that a Bail Schedule was adopted this evening, which indicates an infraction fee of $103. Should there be a recurrence and it was decided to proceed other than with an infraction, conceivably it could be deemed a misdemeanor, which entails a $504 fine. Regarding decibel levels, Community Development Director Brown noted Mr. Winters was concerned about the 90 decibel exemption for residential maintenance equipment, and reported that tests were conducted at a public forum that indicated certain types of equipment, e.g., lawnmowers, leaf blowers, etc., could create decibels up to 90 dBA. Mr. Brown stated that typically, those are not used continuously for hours on end, rather for a short period of time. He reported that staff did discuss attempting to define a time period with Mr. Winters; however, this gets into an almost impossible enforcement situation where it would be necessary to call the police out at the beginning of that time period and again at the end, which did not appear practical. With regard to the owner/builder exemption on Sundays, Mr. Brown clarified this to be work being done by the owner, with some accompaniment, and not by a licensed contractor. He explained the intent was to create a compromise for Sundays, which would allow people to maintain their own properties; however, not bring in contractors. With regard to the comment concerning Mill Valley permitting only 80 decibels for one minute per hour for construction sites, Mr. Brown indicated he could not imagine how a construction project could be done with such a limitation. On the cost for the exception process and the cost of the appeal, raised by Ms. DeWitt, Mr. Brown stated that presently, the fee ordinance has an exception cost to process of $320 and an appeal to the City Council cost of $200. While recognizing this appeared steep, Mr. Brown stated these are all significant loss leaders for the City and more staff time would be expended processing the appeal to the City Council, with staff report time and time at the meeting, than with the initial exception. He confirmed this is consistent with all applications. Returning to the question of exemptions, Councilmember Cohen stated the big issues are obviously, truck traffic and the airport, and he believed Council had been clear to staff in their direction on these. He stated his conviction that the noise ordinance was not the solution for these and other ways could be pursued. Using the scenario of San Anselmo deciding to carry out a street -paving project, at night, and purchased their asphalt from Dutra, Councilmember Cohen inquired whether anything in the ordinance would permit regulation of this. He clarified he was addressing regulating activities taking place within the city limits of the City of San Rafael. SRCC Minutes (Regular) 10/21/2002 Page 17 SRCC Minutes (Regular) 10/21/2002 Page 18 Mayor Boro stated the question related to whether the hauling of materials from the site could be regulated by the City. He recalled City Manager Gould had stated that had it been considered, the hauling of material could have been incorporated in the bid process. With regard to Section 8.13.070 — Exemptions - G., Mayor Boro stated this related more to the construction work itself, and this is what is exempt based on an approved plan with permits. Using a second scenario, Councilmember Cohen stated that assuming the San Rafael School District decided to have work carried out at night, being more cost effective and necessitating closure of less of the campus, and as they are not necessarily required to obtain a building permit to do their own work, he inquired whether the City would have the ability to regulate the noise impacts for that construction project, absent this exemption. Responding, Attorney Lisa Goldfien stated she believed there was a question concerning this. She indicated the intention was to allow staff to investigate this on a case by case basis, through the permit process. Responding to Councilmember Cohen's comment that the City does not grant permits to the School District, Ms. Goldfien confirmed this would exempt them. Councilmember Cohen questioned why the City would wish to do this, stating he could understand it being done on a case by case basis. Ms. Goldfien stated it could be limited further and it was perhaps, a matter of practicality rather than attempting to figure out every specific entity to be regulated. She believed there were entities that could not be regulated in terms of noise, such as the state, and this could probably be limited somewhat by indicating that the City is prohibited by law from regulating. Councilmember Cohen requested examples of public utilities envisioned under the language in the draft ordinance. Ms. Goldfien identified PG&E. Councilmember Cohen inquired whether the City had the ability to inform PG&E they must work within certain noise limits. He clarified this related to contract or capital improvement work, not emergency work. Ms. Goldfien indicated she was unaware specifically with respect to PG&E; the way the paragraph is written holds them exempt. She stated that should Council wish staff to specify which public entities might be exempt, each of them could be evaluated. Councilmember Cohen stated he did not have a problem with the work on capital improvements to repair some public property by employees or contractors of the City, explaining that constituents could complain about paving streets at night and the impact and trade-off could be weighed. He indicated the City makes that decision and can tell the contractors what to do and when to do it. Councilmember Cohen questioned why it was necessary to give a blanket exemption to other public entities or public utilities, rather than reserve the ability to regulate the impacts of noise, should it have such right. City Attorney Gary Ragghianti stated Council may well wish to do that. He stated this was a public hearing and it was not staff's intention that this be the final draft presented, noting that public comment had been made and serious reflection was necessary. He stated this was a policy decision that Council should make, rather than staff seeking to impose a recommendation. Mayor Boro stated that some changes were announced at the beginning of the hearing, with further items raised. While there was agreement to some, there were obviously issues that could not be addressed, and this had been acknowledged. He suggested that paragraph G. on page 13 needed some thought and having conducted hearings, taken input and closed the public hearing, Mayor Boro stated the item could be returned when everything was clarified and consolidated, and with some approach to paragraph G for discussion with Council. City Manager Gould inquired whether it was Mayor Boro's suggestion that Council not adopt the ordinance this evening and bring it back a third time. Mayor Boro stated that as the first hearing was abortive, he considered this to be the first hearing. City Manager Gould stated that as staff could not provide a compelling argument on the second half of item G., he was suggesting deleting the wording "or other public entity or public utility companies, which have obtained any required approvals or permits for such work" and subsequently, should there be a problem, staff could return with a recommendation on why this work should be exempt. He indicated this would allow adoption of the ordinance this evening and begin its use, as currently, there is not an enforceable noise ordinance. He noted it had been acknowledged in most of the testimony this evening that this was a vast improvement over the original ordinance. Councilmember Cohen concurred, stating most of the changes had been addressed and there were other issues to be addressed in other ways. SRCC Minutes (Regular) 10/21/2002 Page 18 SRCC Minutes (Regular) 10/21/2002 Page 19 Councilmember Cohen stated he would be prepared to move adoption with the modification of striking the second clause of G, as outlined by City Manager Gould. Attorney Lisa Goldfien outlined the revisions to the ordinance she referred to at the commencement of the public hearing: • Page 7 — Noise Standards for interior noise in multi -family residences, Section 8.13.040 A 3.: Nighttime - 35 dBA intermittent, 30 dBA constant; • Page 11 — Refuse Collection: Residential or mixed use property: Mon -Sat 6:00 a.m. — 9:00 p.m. (4 places); • Page 13 — Exemptions, Section 8.13.070 C. — Aviation, railroad, and public transit operations; • Page 13 - Exemptions, Section 8.13.070 G. - Delete words "or other public entity or public utility companies, which have obtained any required approvals or permits for such work." The title of the ordinance was read: "AN ORDINANCE OF THE CITY OF SAN RAFAEL REPEALING SECTION 8.12.150 AND ADDING NEW CHAPTER 8.13 TO THE SAN RAFAEL MUNICIPAL CODE ENTITLED `NOISE"' Councilmember Cohen 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. 1789 to print, with modifications and revisions as outlined above, by the following vote, to wit: Councilmember Heller stated she was not present for the previous public hearing on this issue; however, she had read the minutes and considered the entire testimony. AYES: COUNCILMEMBERS: Cohen, Heller, Phillips and Mayor Boro NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: Miller Community Development Director Bob Brown to pursue the noise issue with respect to regulations concerning the airport, with the County of Marin. 15. Public Hearing — (Lucas Valley Road - Jaleh Estates) CONSIDERATION OF REQUEST FOR A REZONING FROM PLANNED DEVELOPMENT - HILLSIDE OVERLAY (PD -H) DISTRICT TO A REVISED PD -H DISTRICT, WITH ADOPTED SINGLE-FAMILY ZONING REGULATIONS; A VESTING TENTATIVE MAP TO SUBDIVIDE THE 5.99 -ACRE LOT INTO FOUR LOTS; AND AN ENVIRONMENTAL AND DESIGN REVIEW PERMIT FOR CONSTRUCTION OF FOUR SINGLE-FAMILY HOMES; APN: 165- 220-15; PLANNED DEVELOPMENT DISTRICT — HILLSIDE OVERLAY (PD -H) DISTRICT; HASSEN SABBAGHIAN, KEREND INC., OWNER, ARLENE DINGES, NORTH BAY PLANNING, REPRESENTATIVE; FILE NO. ZC98-4, TS98-3 AND ED98-12 (CD) — FILE 10-3 x 5-1 x 10-7 Associate Planner Bill Tuikka stated this was a proposal to subdivide a 5.9 -acre parcel into four lots and construct four new single-family homes. He indicated the project is the result of several years of review and comment by the City. Originally filed in 1998, it was submitted by the same applicant for five lots, each with a single-family home, which was at that time, evenly distributed over the entire site and utilized gentler slopes near the ridgeline. Mr. Tuikka stated the project was the subject of a draft Environmental Impact Report (EIR) in 1990, which included a focus on geology, drainage, vegetation and wildlife. He stated that five - lot application was withdrawn and the current four -lot application encompasses many of the mitigation measures recommended in the draft EIR for the first proposal. Reporting that one of the central issues to the development of this site has been the geology and grading of the site, Mr. Tuikka explained that two geotechnical reports were prepared and reviewed by an independent firm as part of the City's geological peer review program. He stated the reports and peer review conclude that the project is feasible from a geotechnical standpoint and that grading would not impact the nearby residences to the west. Mr. Tuikka reported that all excavation and fill activity would be on the side facing the access road and the office building, and would not be visible to the homes in the neighborhood. Mr. Tuikka reported that several neighborhood meetings were held for this project where the SRCC Minutes (Regular) 10/21/2002 Page 19 SRCC Minutes (Regular) 10/21/2002 Page 20 issue of privacy was raised as one of the major concerns. He referred to a model constructed to demonstrate to the Design Review Board and the Planning Commission that the houses are located on the eastern side of the hill and have ample vegetation between them and the nearby subdivision, and therefore, have little effect on the homes to the west. Mr. Tuikka stated that another important issue both to the neighbors and the City during this review, was the preservation of open space. He explained that the project applicant had proposed that approximately 4.3 -acres, or 70% of the site, be configured as open space; each lot is proposed to have a building envelope and an additional private open space area with no potential for development, and additionally, 2.3 -acres of the subdivision, on the southern side of the parcel, is to be donated to the City as public open space. Based on the analyses set forth in the staff report, Mr. Tuikka stated the Planning Commission had recommended that the City Council adopt the Mitigated Negative Declaration and Mitigation Monitoring Program, adopt the Planned Development District Zoning and approve the Environmental and Design Review Permit and Vesting Tentative Map. Mr. Tuikka stated he would be happy to answer questions, as would the applicant and project design team who were also present. Arlene Dinges, North Bay Planning, representative for the project, stated the applicant/owner was also present, together with a full team of consultants. While not wishing to impose a full presentation, she indicated they would answer questions and would do a presentation should this be the preference of Council. Regarding the material distributed for this evening, Ms. Dinges stated the cover letter refers to three items which would appear at tonight's meeting; however, were not included in the binder: the model; rendered colored elevations for the architecture; and the color boards. She indicated the color boards still need to go back to Design Review for final approval. Mayor Boro declared the public hearing opened, and there being no comment from the audience, closed the public hearing. Councilmember Heller stated she did see the project back in either 1991 or 1993 before the Design Review Board, and the improvement is astronomical. She stated the project was very nice and one to be proud of in the City of San Rafael. She was pleased that the neighbors' wishes were taken into account and that staff did verify to one neighbor that indeed his property was not being impacted by loss of privacy. Councilmember Heller stated she believed this to be a very good way to work with neighbors in the City. a) Councilmember Heller moved and Councilmember Phillips seconded, to adopt the Resolution. RESOLUTION NO. 11194 — RESOLUTION ADOPTING A MITIGATED NEGATIVE DECLARATION FOR THE JALEH ESTATES RESIDENTIAL DEVELOPMENT PROPOSED OFF LUCAS VALLEY ROAD WEST OF U.S. HIGHWAY 101 (APN 165- 220-15) AYES: COUNCILMEMBERS: NOES: COUNCILMEMBERS: ABSENT: COUNCILMEMBERS: b) The title of the Ordinance was read: Cohen, Heller, Phillips and Mayor Boro None Miller "AN ORDINANCE OF THE CITY OF SAN RAFAEL AMENDING THE ZONING MAP (ZC98-04) TO RECLASSIFY CERTAIN REAL PROPERTY FROM PLANNED DEVELOPMENT — HILLSIDE OVERLAY (PD -H) DISTRICT TO A REVISED PD -H DISTRICT WITH ADOPTED SINGLE-FAMILY RESIDENTIAL ZONING REGULATIONS TO ALLOW DEVELOPMENT OF FOUR SINGLE-FAMILY HOMES AND A 2.3 -ACRE PUBLIC OPEN SPACE PARCEL OFF LUCAS VALLEY ROAD WEST OF U.S. HIGHWAY 101 (APN 165-220-15) (Re: Jaleh Estates)" Councilmember Phillips moved and Councilmember Heller seconded, to dispense with the reading of the Ordinance in its entirety and to refer to it by title only, and pass Charter Ordinance No. 1790 to print, by the following vote, to wit: SRCC Minutes (Regular) 10/21/2002 Page 20 AYES: COUNCILMEMBERS: NOES: COUNCILMEMBERS: ABSENT: COUNCILMEMBERS: SRCC Minutes (Regular) 10/21/2002 Page 21 Cohen, Heller, Phillips and Mayor Boro None Miller c) Councilmember Phillips moved and Councilmember Cohen seconded, to adopt the Resolution. RESOLUTION NO. 11195 — RESOLUTION APPROVING AN ENVIRONMENTAL AND DESIGN REVIEW PERMIT (ED98-12) AND VESTING TENTATIVE MAP (TS98-03) FOR THE JALEH ESTATES RESIDENTIAL DEVELOPMENT OFF LUCAS VALLEY ROAD WEST OF U.S. HIGHWAY 101 (APN 165-220-15) AYES: COUNCILMEMBERS: Cohen, Heller, Phillips and Mayor Boro NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: Miller NEW BUSINESS: 16. LABOR CONTRACT IMPASSE MEETING OF THE CITY COUNCIL AND MAPE/SEIU LOCAL 949, REPRESENTING THE MISCELLANEOUS AND SUPERVISORY EMPLOYEE BARGAINING (MS) — FILE 134 x 7-8-1 Assistant City Manager Ken Nordhoff stated the staff report outlined the progress of negotiations with the Miscellaneous and Supervisory Bargaining Units. He reported that approximately seventeen meetings had taken place since April to discuss and attempt to reach agreement on a number of issues, and this evening's packet contained a fairly comprehensive report. Mr. Nordhoff pointed out that this includes the impasse letter received from MAPE and a series of issues that staff could cover. Should Council desire, Mr. Nordhoff offered to discuss these issues at this time; however, Mayor Boro stated Council would hear first from Mr. Kris Organ, MAPE/SEIU 949, Executive Director, since he had requested this discussion, and subsequently Mr. Nordhoff. Mr. Kris Organ thanked Mayor Boro and Councilmembers for the opportunity to address Council this evening and he thanked his members for their patience. Mr. Organ reported that the Union had worked hard to maintain a cooperative relationship with the City of San Rafael; members had grown to understand that the City's commitment to them arose in the goal of the salary survey, and the Union had tried to make this work, beginning with the MOU (Memorandum of Understanding). Mr. Organ stated it had been through that survey and the raises that came because of that survey, that the members had 4 '/2 to 8% raises instead of a 2 '/2% COLA (Cost of Living Adjustment) over a number of years, and this was documented in this evening's packet. Mr. Organ stated that revenue sharing funded raises meant Union members would be earning something more competitive, i.e., the survey basically established an average that people could reach. He explained this is an average for the benchmarks and not necessarily correct for everyone. Stating the question for Council was "why are we at impasse," Mr. Organ stated the answer was that the revenue sharing program would fail in the next four years, based on changes proposed by the City and on the cost increases in healthcare. He stated that members wished Council to consider some facts and to this end, had requested five people to make brief presentations. Bill Voight, City GIS Analyst, stated he was one of the casualties of the Nash Study. He explained he was promoted to this new classification approximately three years ago, just prior to the Nash Study. He indicated that while realizing his new salary was well above that previously, it was still well below the rate paid for the same positions at the County of Marin. Mr. Voight stated he was assured during the preliminary meetings of the Nash Study that the intent of the study was to remedy such inequities and he waited to allow the process to work. He reported having met with and presenting the data to Doctor Nash; however, the information was not incorporated into the study and there was little adjustment to his salary structure. When the City presented the Nash Study as a change in the salary structure, Mr. Voight stated they relied on Dr. Nash's expertise and did not collect any comparative data to support their recommendations. He stated that when the results of the study were released, the Union requested the supporting data; however, was denied access to it. As a result, the Union did not see a real analysis and Mr. Voight reported it had to rely on a reputation and a commitment from the City to remedy any problems during future negotiations. As such, he stated the SRCC Minutes (Regular) 10/21/2002 Page 21 SRCC Minutes (Regular) 10/21/2002 Page 22 inequities in his position were initially part of those items discussed in the negotiations Mr. Voight reported that during the initial negotiations, the City responded favorably towards remedying the inequity over the next four years; however, has since withdrawn its position in the last few offers made, without any explanation for the withdrawal. He stated that even under the compromise offered by the Union, his salary would still be far less than County GIS Analysts; however, the offer at least makes progress towards the inequity. Mr. Voight stated that San Rafael takes pride in offering competitive salaries and in past MOUs had made it a point to offer the best salaries in the County; however, the City's tactics at negotiations appear to contradict this stance. Mr. Voight stated he had enjoyed the last four years working for the City and had until recently, believed that he and his employer shared a mutual respect. Although patient by nature, he now had less faith in the good intentions of the City and requested that Council accept the Union's offer, including the reinstatement of the inequity remedies, and finally, to reinstate his faith in the City. Joe , Sanitation District, stated he resided in Vallejo and listed some of the items negotiated there this past year, as follows: "The City of Vallejo negotiated with its Miscellaneous employees over improved retirement this past September. They got 2.7% at 55 retirement, effective October 7, 2002. The cost to the City was only 2% of salary. The employees got a 2% raise and increased their contribution, pre tax, by 2%, in order to pay for half of the 2% cost and the extra employee cost." With regard to medical, Mr. stated that Vallejo also provides fully paid medical, regardless of the number of dependants or the PERS plan chosen, and he proposed the same for the City of San Rafael. With regard to the 37.5 -hour work week, Mr. Swisher stated his salary survey benchmark is the Street Maintenance Supervisor. He stated that Jimmy, a steward, is in this classification and earns 34 cents more per hour; however, $302 less per month because of the 37.5 hour work week. He stated the survey already treats him and Jimmy as though they earn more; however, in considering the monthly, they are paid 93 cents on the dollar. Mr. stated the City's proposal would take Jimmy's salary and add almost 16% in cost for 2.7% at 55 and would only consider or add 2% employer cost for the Vallejo comparison, yet his and Jimmy's retirements would be similar. Mr. stated the salary survey would take years to deal with this 14% difference, 16% compared to 2%, and he believed something was wrong with this, which is the objection to the City's proposal. He thanked the City Council for their time and hoped they would take this into serious consideration. Jim Forsythe, San Rafael resident and Public Works employee, stated that City workers had Council's respect in the past and wished to continue that respect. He indicated the Union members believed the City proposed changes to the survey and the uncertain future of healthcare mean a shift away from that respect. By offering retirement, Mr. Forsythe stated he believed the City was attempting to show respect, as better retirements had gone to the cities of Santa Rosa, Napa, Fairfield, Vallejo, Hayward and San Leandro. He stated the Town of San Anselmo has 2.7% at 55 in their three-year MOU, 4% raises in each of the first two years and a retirement in the third year. He reported they have an indexed healthcare coverage, meaning it keeps pace with cost of Kaiser family coverage. Mr. Forsythe stated the retirement cost was treated like a raise and by putting the employer cost of the retirement into the survey, the City would make the ten -City survey useless. He indicated that some agencies would pay 2% of salary for 2.7% at 55 and another would pay 7.5%. Currently, other cities pay nothing and he reported the City of San Rafael pays 7.4% for the lower benefit. Reporting that the police compare to the County Sheriffs in the same retirement fund, the sheriffs have 3% at 50; therefore, the comparison would produce a good result. He stated that the current price difference is another factor separating police and his units, i.e., the County pays over 10% for their retirement, the City pays 7.4%, and he requested Council consider the fact that the City retirement is better than the County retirement, and tacking an unfair price tag to the survey does not make sense for anyone. He questioned whether it was fair to pass the unfair price into the survey or whether it was fair to pass the price of retiree healthcare into the SRCC Minutes (Regular) 10/21/2002 Page 22 SRCC Minutes (Regular) 10/21/2002 Page 23 survey, which is included in the San Rafael employer rate but not in any Calpers rate. Mr. Forsyth stated they did not believe it was, and no other wage surveys are being adjusted this way. He requested that this proposal be withdrawn as they believed it would ruin the survey. Bill Tuikka, Community Development Department employee and Napa resident, stated Council has probably noticed a good representation tonight and a lot of these people did not reside in San Rafael, evidence of the seriousness of improving benefits. Mr. Tuikka stated they were not present to offend the City, rather desired a fair deal. Confirming that the City conducts a salary survey each year, Mr. Tuikka reported it was discovered this year that many other cities of similar size to San Rafael are paying better salaries and have better benefits. He stated that the City of Napa pays its employees a higher wage. He explained that of the six benchmarks, five match Napa's job descriptions, and Napa was higher for four of these benchmarks. He added the fifth was not available as Napa does not have a library assistant. Mr. Tuikka stated that Napa also sets its salaries with a ten -city survey; however, the employees in the City of Napa stay competitive as the implementation of this survey results are not attached to the availability of any revenue sharing money. He stated they also have instituted a 2.7% at 55 retirement plan this year, which is becoming the standard for California municipalities. Mr. Tuikka reported that according to the 2001 survey, Napa also pays $218 per month more for health benefits for the Miscellaneous Group. Mr. Tuikka stated it is important to all who work in San Rafael to stay competitive in the healthcare area. In his particular situation, he reported he is the only wage earner and without a competitive package he would pay significantly more for healthcare next year, which would get worse in the ensuing years. He believed it fair to request the City to keep up with the cost of healthcare. Dave Sliney stated he had been with the Sewer Department since 1987. He noted the City had a fine group of Management staff who receives fully paid medical benefits; however, the City also has a fine group of Miscellaneous employees and he questioned whether these families were worth any less. He stated they were not requesting full medical, rather a few more dollars on medical to narrow the gap, as there was a disparity, which needed to be rectified. On his own behalf and that of his co-workers, he requested Council give this matter consideration. On behalf of all Councilmembers, Mayor Boro thanked everyone for remaining throughout the previous proceedings, apologizing for the fact that one hearing took so long; however, needed to be addressed. He stated Council appreciated everyone's presence and would be available to listen. Kris Organ, MAPE/SEIU 949, Executive Director, stated he had sections from three contracts, or a summary sheet from Fairfield in terms of their benefits, which he invited Council to evaluate. He explained that the use for these comparisons is about competitiveness, which is one of the reasons the City has utilized the survey in the past. He stated that in terms of the comparisons, the other piece is that part of the reason healthcare is higher in other districts is the fact that they are all indexed to the cost. He stated they index it by tapping into the family Kaiser rate, etc., and in terms of healthcare, everyone is concerned about rising costs and accessibility to healthcare. With regard to the Vallejo document, he stated it can be seen they are considering changes to their fully paid healthcare program; however, it maintains an index to it. In terms of Fairfield, Mr. Organ stated that in looking at the salary survey, it was found to produce a number that was less than the City of San Rafael; however, in looking at the City of Fairfield's program and talking to their Human Resources, they pay 96% of the family rate; therefore, it did not make sense that it would be less than San Rafael's rate in terms of the healthcare amount. Secondly, Mr. Organ stated they had adopted the 2.7% at 55 and in looking at that comparison, their cost was 4.1 %. With San Rafael's 8.1 %,(he explained a lot of this may have to do with the way the Marin County Retirement system works), to add those employer costs in when the benefit is comparable did not appear fair. Mr. Organ stated that South San Francisco also appeared to have a more generous benefit than the survey reflects. He confirmed the survey in question to be that of 2001. With regard to what the survey produced, Mr. Organ stated it essentially lists an amount that is paid for healthcare and he simply compared the amounts and where each city fell for each of the benchmarks. He stated it could be seen that the City of San Rafael is not in the average, rather more toward the bottom. He stated it should also be noted that both South San SRCC Minutes (Regular) 10/21/2002 Page 23 SRCC Minutes (Regular) 10/21/2002 Page 24 Francisco and Fairfield appear toward the bottom; however, it appeared to him that those numbers were incorrect in the survey. With regard to the human cost of the healthcare issue, Mr. Organ produced a document, which had been provided by the City, and was a spread of the employees and where the coverage is. Having distributed copies to Council, he explained that in terms of spread, it identifies where employees are covered, what plan they are covered under and at what level. Elaborating, Mr. Organ stated that because Healthnet, Health Plan of the Redwoods and Pacific Care, lower cost healthcare providers under PERS, are being eliminated in this round, people would be moving straight to Blue Shield, ending up with a cost factor. He stated his proposal addresses taking the cost from someone in Blue Shield, one at this time, at the employee plus 1 level - $101. He stated this is not shown on the chart, rather that there is just one person in that category; however, to consider Healthnet, which is being eliminated, four of these people would move up to a $111 level, Health Plan of the Redwoods would be $121, and Pacific Care would be $123. He stated his reason for pointing this out is that these are changes in terms of Calpers and the Union's proposal would not cover the full cost increase to employees; therefore, they requested some sharing of this. Mr. Organ stated that most index systems would protect these people already and a cost is already being picked up just based on the proposal. He stated it is that proposal, along with the change in the survey of adding in the cost from the Marin retirement that is not equitable compared to the other PERS retirement increases on 2.7%, that really causes a problem. Returning to the survey, Mr. Organ reiterated that the City of Fairfield's cost was 4.1 %; the City of San Rafael cites an 8.5% increase. He stated the survey would add 14+, perhaps 16%, that would go into the survey for the employer cost. In terms of the retirement contributions, he stated he had developed a chart for review. He explained that the Union members looked at this in August and pointed out that these are current employer costs. He stated that while San Rafael's system is listed at 2% at 58'/2 , others are 2% at 55; however, in comparing the costs, he noted many are zero and San Rafael's is 7.04%, which is one of the items leading to the conclusion that adding the employer cost into the survey would further cause the survey to be uncompetitive. While understanding it is a cost to the City, he stated Council needed to be aware that in terms of the cost of the benefit, they could not figure out why that cost is more to this city than moving to 2.7% at another city with Calpers. With regard to Management's benefits and the cost of these factors, Mr. Organ stated that one of the issues evaluated was putting money into healthcare versus salaries. He reported this had been debated in negotiations this time and in the past, and it was his understanding that the City characterizes it as the Union putting money into salaries when they have gone into benefits. To evaluate the survey results, he stated this would be found to be untrue. Mr. Organ noted that Management put money into their own packages in the healthcare area and the Union proposal is much more modest. In terms of the Management proposal, he stated that the cost increases to be absorbed are not included in the contract. This, he stated is problematic when the cost of PersCare for a family is going from $1,100 to $1,400 per month, and this does not count as a cost to the contract. He stated this is one of the advantages of indexing and the Union was requesting a more modest index than Management secured in their negotiations last year when the economy was in approximately a similar state as now. Mr. Organ produced material on a request for information. With regard to a three-page document, Mr. Organ stated he would focus on some points: Mr. Organ stated that Management's cost proportion of the City's salaries had moved from 12% to 13.7% in the last year. Listed on the first page of the document was the cost of bonuses or merit increases distributed both to this unit and Management units. He stated they believed healthcare should be put before this and in evaluating the figures, the dollars would be found to put into the healthcare proposal. To evaluate Management's analysis provided in their documentation, Mr. Organ stated it indicated a 5.6% difference across a four-year agreement. He stated a good part of this involves the COLAS, where the Union has decided they are not prepared to move further on the COLAS unless movement is evident elsewhere. He stated that the presentation is that the priorities at this point are: 1) Members have been able to live with COLAS that are less, which is being seen in terms of other agencies that get better retirement. He stated there has been a willingness to live with these as the survey maintains competitiveness on that basis; however, if in fact, the employer contribution to the retirement is added to this, it will no longer be effective SRCC Minutes (Regular) 10/21/2002 Page 24 SRCC Minutes (Regular) 10/21/2002 Page 25 for the four years. 2) With regard to healthcare, Mr. Organ stated that making an improvement in healthcare would result in both sides being less apart, he believed 5.6% over four years was not a great deal, and therefore, was requesting Council to reconsider. Addressing comments regarding healthcare, retirement, etc., Assistant City Manager Ken Nordhoff referred back to the sheet distributed by Mr. Organ regarding retirement contribution factors and stated there is a sense, particularly from the employers' perspective, that rates range from 0 up to 10.5%, at the County. Mr. Nordhoff stated it must be kept in mind that all the agencies in Marin County and the ten cities in the Bay Area, surveyed as part of the goal established, are all in defined benefit plans. He explained that when an individual retires from employment with a particular agency, they are guaranteed a specific benefit over the term of their remaining life; however, a number of factors go into determining what is charged in order to collect sufficient money to guarantee those benefits. Mr. Nordhoff stated that the staff report identifies three elements: 1) Employee contributions, essentially set by law; 2) Investment earnings, which is taking the pool of assets that a plan has, whether that be PERS, Marin County or some other plan, investing that and guaranteeing, in essence, an 8'/4 % rate of return on that investment over a long period of time; 3) To the extent these two items do not cover the cost to guarantee those benefits, the agencies, cities, County and towns are required to make contributions, defined as a percentage of salary. Because of the size of its retirement system, Mr. Nordhoff explained that PERS is typically lagging a couple of years in terms of evaluating its real performance results relative to the cost of benefits. From an attachment to the staff report, he stated it could be seen from their rate of return for the past two years, that they have lost over 13% in terms of investment results, so there is actually an approximate 30% swing. Mr. Nordhoff stated that PERS is lagging in calculating the true cost of benefits to all agencies with which it is involved, which is why a number of agencies listed on the chart distributed by Mr. Organ are at zero. Mr. Nordhoff stated staff believes the time is coming when PERS will catch up with where Marin County is. Having looked at the cost of the City's plans and evaluated the actuarial studies, he stated the costs are real. To consider the age of employees in terms of their tenure and seniority with the City and give them the credit they deserve for the length of service with the City, Mr. Nordhoff stated that a change to the 2.7% at 55 plan would mean approximately $1.3 million, as advised by the actuaries. Continuing, he stated the actuaries who do the same thing for PERS are falling behind, and it is believed rates will rise 4 or 5% in those agencies in the coming year, and perhaps upwards of 10 — 16% the following year. He stated they are just catching up with the fact that these benefits are costly, there is no free ride and should employer contributions be insufficient to guarantee those benefits, the rates would continue to increase. Mr. Nordhoff stated he also stated in the staff report that this trend is expected to continue and it is believed that because nineteen agencies are being surveyed against these benchmark positions, these issues will level out over a period of time. Mr. Nordhoff stated a lot of information was presented this evening concerning specific examples of salaries, health benefits and retirement systems in specific agencies, and he believed it to be important to keep in mind that since the goal was set back in 1996, a large part of this had been to conduct these annual surveys and evaluate everything on a salary and benefits level. On the benefits side, he indicated the type of benefits were not necessarily compared, rather the cost of benefits. Mr. Nordhoff stated who's and what health plan, dental plan or retirement system had not been studied, rather merely the cost of hiring an employee to come to work in San Rafael and comparing that in Marin County. He commented that the goal was to be the highest in Marin County, which the City has succeeded in doing over the past six years, and also to be one dollar above the survey average in the Bay Area, a goal which, again, had been met for this group over the last few years. Mr. Nordhoff deferred to Mr. Daryl Chandler, Assistant Director Human Resources, on the healthcare issues. Reiterating Mr. Nordhoff's comments, Mr. Chandler stated that in evaluating the surveys, in terms of health benefits, individual measurement versus other agencies is not taken. He stated total compensation is considered, which currently includes top step salary, all benefit costs, maximum costs and employer contribution towards employee share retirement. Mr. Chandler SRCC Minutes (Regular) 10/21/2002 Page 25 SRCC Minutes (Regular) 10/21/2002 Page 26 stated staff would continue to do this in terms of future surveys. With regard to Mr. Organ's comments that there may be discrepancies between what was reported in last year's survey, and data being collected today, Mr. Chandler stated this is possible, as in collecting this information, a number of individuals are consulted and it is necessary to trust the information being received is accurate. In verifying the information and checking with other individuals, he stated it is quite possible something else could be reported, or changes were made. Mr. Chandler stated a concerted effort is made to ensure that the information is accurate as it is reported to the individual bargaining units. As everyone knows, and with no dispute according to Mr. Organ's statement, Mr. Chandler stated healthcare costs are increasing and will continue to increase. He stated the City receives its information regarding healthcare costs from CalPers, as this is the program the City is in, rather than some type of national or state trend outside of this particular program. He reported that at a recent health benefit workshop staged by PERS, it was reported that healthcare costs would increase 10% per year plus CPI. Mr. Chandler stated that the CPI information being collected indicates that CPI on average is approximately 3.5% per year; therefore, the 13.5% increase in healthcare costs is staff's projection, based upon the information obtained from CalPers. Mr. Chandler stated that the City's proposal, as part of its total compensation package, includes a significant dollar increase to healthcare for those members in need of that, primarily those at the two-party or family rate. He stated staff projects this would affect approximately 78 members out the 150 currently represented by these two bargaining groups. To consider the City's proposal, Mr. Chandler stated it has tried in a total compensation proposal, within the limits established by the Council, to significantly move healthcare contributions on behalf of the City for the employees, and the charts contained in this evening's packet demonstrate that the City's current contribution maximizes at $484 and at the end of the contract, he believed it would be $742 per month. Assuming that, as CalPers is projecting, the 13.5% increases annually over the course of that four-year period, staff believes the City is keeping pace with those increases, as opposed to the employees falling significantly behind those increases. Mr. Chandler stated that in the course of the attempts to provide a complete package, the City has shown significant increases in the health contribution. Returning to the sheet referred to previously, to look at the increases proposed over the contract under the retiree medical, Mr. Nordhoff stated the figure which is currently $250 would be over $500 at the end of the term of the agreement, phased in. Mr. Nordhoff stated a lot of the emphasis in the staff report was to discuss why this place has been reached, particularly what are perceived to be some of the concerns on the horizon, and he believed there was a responsibility on the Management side to evaluate what is prudent in terms of compensation while attempting to maintain established goals and what the community considers priorities, in order. He referred to Pages 19 and 20 which identify a number of factors on the horizon which staff believes cloud the City's financial future. He indicated that some of these are obviously somewhat more manageable than others; however, clearly there are some potentially big hits. In discussing increased retirement rates, Mr. Nordhoff stated that Marin County is no different than PERS, having suffered investment losses in the last couple of years, and there is every expectation that should no plans be changed in any bargaining group, increased costs for retirement would be seen in future years. He stated that until investment returns come back to 81/4% per annum, that trend would continue. Reporting significant increases in both self-insurance funds for workers' compensation and liability of over $500,000 each this year, Mr. Nordhoff stated these are real costs, which could not be avoided. Regarding the State Budget, Mr. Nordhoff stated the City did pretty well, other than approximately $175,000 being taken from the Redevelopment Agency. The General Fund damage was very minimal; however, estimates in the newspapers indicate that the real gap is still probably anywhere from 8 — 14 billion dollars and it is not anticipated that the City could necessarily escape some infliction of pain from the State. While having no idea of the amount, it could happen as early as January, 2003, or next summer and the City needs to be prepared. Mr. Nordhoff reported that sales tax for the second quarter this year was down approximately 4%, poor stock market performance, the war in Iraq, etc., were seen as clouds on the horizon. As a recommendation, staff believes it to be prudent that the 17% guaranteed over the term of the four-year agreement in a time of much less certainty, far and away exceeds the last three- SRCC Minutes (Regular) 10/21/2002 Page 26 SRCC Minutes (Regular) 10/21/2002 Page 27 year agreement with most of the bargaining groups, which had a 3% authority over a three-year term. Mr. Nordhoff stated Council had stepped out and taken a much greater risk at this time and it was staff's recommendation that this be continued. Mr. Nordhoff stated staff was more than willing to work with the Association in an attempt to evaluate their priorities and fit this within the scope of the authority, which has been the past practice with this group. He stated it has been the past and current practice with other groups to attempt to determine whether salaries, healthcare, or retirement was more important; however, with the cost laid out, all this could not be included within the authority provided. He recommended Council stay the course. Councilmember Heller requested clarification on the feeling that Management was receiving a richer medical package. Responding, Mr. Nordhoff stated that staff sat down with the Management Group, as is done with other groups, and requested them to prioritize what was important. He indicated they decided to move away from a fixed amount for healthcare insurance and requested the City assume the full cost. In doing so, Mr. Nordhoff reported that some employees also gave up cash back they used to receive; however, the cost was deducted from the authority given for Management last year, which reduced potential salary increases. Councilmember Heller confirmed the authority was the same within the entire City. With respect to the pension plan earnings, Councilmember Cohen stated he assumed the Marin County System used blending. He stated they had been earning significantly better for the last few years than currently and are averaging this over time to ensure rates do not fluctuate wildly. Mr. Nordhoff stated they are using a five-year smoothing average and PERS uses a three-year average; therefore, PERS would more shortly feel the effects of that as their good investment years are about to roll off. Noting one of the issues in the testimony concerned whether or not to evaluate the cost of retirement benefits in the salary survey, Councilmember Cohen stated that to put this in and PERS costs went as predicted, presumably, this would make the other cities' contributions go up. With regard to the ten cities using 2.7% at 55, he inquired where San Rafael was in this respect. Responding, Mr. Nordhoff stated the Bay Area cities are listed on page 28 of the staff report. He noted that five of the ten either currently have a better plan or one scheduled to be implemented, San Anselmo being one in Marin County. Mr. Nordhoff stated that discussions were held early on in negotiations concerning moving to 2% at 55, which is common in Marin County; however, pursuant to some fairly lengthy discussions with the Association, they felt some of their members, and staff agreed, would be better served staying in the current plan; therefore, the focus had been on the 2.7% plan as part of the discussions. With regard to medical plan indexing, Councilmember Cohen requested further explanation As explained by Mr. Organ, Mr. Nordhoff stated they have selected the cost of the Blue Shield employee plus 1 plan and would like to see a base amount of $50 move into healthcare each year, regardless of how the plan cost changes. He indicated that the cost of that plan increase would be put into a flexible spending account over the term of the four years. Mr. Nordhoff stated it was attempted to cost this out, and referring back to Mr. Chandler's comments, staff looked at PERS indicating that healthcare could rise by 10% per year, plus a cost of living factor; therefore, they figured approximately 13.5% per year, or 53% over the term of the contract. This, he stated is essentially the proposal. Mr. Nordhoff stated it comes down to attempting not to isolate specific issues with respect to healthcare costs, rather attempting to evaluate how to make all these things fit within the scope of the authority. He stated the salary increases are less than in the past, a lot of which is related to the retirement system, and staff was trying to strike a balance with that. He indicated the Union's salary proposals are still greater than the City's last proposal; therefore, it did not make sense to attempt to look at the additional cost to healthcare and reduce that in salary increases over the term of the proposal. With regard to Vallejo and how it relates to San Rafael, Mayor Boro sought clarification on the fact that apparently, they are capped with Kaiser North and the City pays whatever Kaiser North charges, and should an individual attend a different health unit, they would pay the difference should it be higher. Mr. Nordhoff stated he was not aware of the specifics of that plan; however, quickly reading it, he deduced that anyone with a plan more costly than Kaiser North plan would have that difference deducted from their pay. SRCC Minutes (Regular) 10/21/2002 Page 27 SRCC Minutes (Regular) 10/21/2002 Page 28 Mayor Boro inquired if this was the reference Mr. Organ had to indexing. Mr. Nordhoff stated he believed this to be one example of indexing. From his point of view, Mayor Boro stated it was a matter of which way to count the dollars. He reported that when the bargaining team was given the authorization to go forward they were authorized the amount of dollars Council believed could be spent on salaries. He stated Council was also aware of the strong desire to improve the pension plan, which would be costly. (As an aside, Mayor Boro stated that he sits on the Golden Gate Bridge Amalgamated Pension Trust Board. Indicating that a meeting was scheduled to commence tomorrow at 9:00 a.m., he reported they were having real trouble with their fund as it had taken a tremendous hit, noting all funds were suffering.) In order to achieve the Pension Plan, he stated that Council requested more time and spread it out over four years. Mayor Boro stated the dollars could be counted in whatever category; however, there are only so many available to spend and some choices were being offered on how this was done. He stated the members' request was to increase the base amount in order to make up for some differences and how things could be calculated elsewhere, which he understood; however, personally, he was pretty much fixed on the amount of authorization and how it is spent. Should the members wish to spend it differently, obviously, this was a matter for discussion; however, the increase requested of 5.5 to 6% was not what Council intended at the time, and to be very candid, since the offer was made several months ago, the situation is worse. Mayor Boro stated everyone was pretty confident that once re-elected, Governor Davis would turn to the cities to balance the State Budget, to a large extent, and as all were aware, $1.5 million dollars had been cut from the budget in anticipation of this happening. Stating this was an interesting summary, Councilmember Phillips referred to page 27 of the staff report relating to benefit contributions and stated it appeared that MAPE is pretty high on this particular scale. He noted a contribution of $554 per month for Miscellaneous and Supervisory Units, $470 for Child Care, $488 Police Association, $492 for Police Mid - Management Association, $502 Firefighters' Association, and $492 Fire Chief Officers' Association. Councilmember Phillips requested verification that, in fact, these numbers had been provided to the MAPE group as it appeared their monthly contribution was quite a bit higher than some others within San Rafael. Mr. Nordhoff stated it should be understood that over a period of time these separate bargaining groups have made decisions concerning how much to put into salaries, healthcare, dental insurance or a number of items, which is what leads to these results. He indicated these are the figures from the previous contract by the various bargaining groups. Councilmember Phillips requested confirmation that these figures had been provided to the MAPE members. Mr. Nordhoff responded affirmatively. Councilmember Heller indicated her agreement with Mayor Boro's statements, explaining that pursuant to discussions early on, Council had authorized absolutely the most they could at this point in time. She stated that in the present climate she was nervous about what next year would bring and was not clear where the movement could be at this time. Noting that everyone had been offered a similar percentage, Councilmember Heller stated it was up to each group to utilize that percentage in the manner of choice. She stated her understanding was that the members, in fairness, believed they needed a higher percentage than that offered to the remainder of the City, and she requested clarification from Mr. Organ. In terms of fairness, Mr. Organ stated their request is not a percentage of what they have, rather for instance to refer to page 27 and the comparisons referred to by Councilmember Phillips, Miscellaneous is higher than others at $554, and in terms of the Firefighters or the Police Department, he was not aware how they go to their members and discuss this. He believed the difference between MAPE and the $580 listed for Management is that theirs is based on current payroll information as opposed to the maximum spent for an employee in the MAPE unit. He explained that $554 per employee is not spent, rather less than that, as it is not calculated that way. He stated it is calculated differently in terms of Management. Mr. Organ stated he was attempting to point out that the two sides are not so far apart on this and it could be an area where to go back and search in terms of the authority for something a little more, it could be possible to come up with the difference that exists on the healthcare issue and resolve this contract. He stated this is why it is important to bring that forward. Mr. Organ indicated there were other statements he wished to address. On the employer contribution and adding this to the survey as opposed to costing it out, he indicated that pensions are a long term business, and while it was true that the City is dealing with shortfalls now, and the Mayor probably had a better grasp of this as he sits on a Pension Fund Board, in discussing this with Norman Klein and PERS, not to mention the lobbyists on SRCC Minutes (Regular) 10/21/2002 Page 28 SRCC Minutes (Regular) 10/21/2002 Page 29 both sides of the better pension issues, they state that for the long term, these pensions appear to be pretty stable. Mr. Organ stated he was unaware of the forecast with regard to the cost of 3% at 60 for the City of Santa Rosa; however, they already had that cost factor built in and they figured out how they would cope with it, and in fact, he stated it is some significant cost sharing on behalf of that city. Mr. Organ stated that one of the cities not mentioned on the chart on page 28 is Napa and they have negotiated 2.7% at 55 into their contract. He indicated that the City of South San Francisco's contract, to be seen from the document he provided, expires next year and they fully anticipate negotiating for a better retirement and adding it in. Mr. Organ indicated he was not in a position to predict the cost on the employer side or what it would be for a PERS agency, and frankly, would not wish to get into that business as he had seen such a wide and varying range from the CMSA negotiations to the MMWD negotiations to San Leandro and now Las Gallinas, and he had seen numbers that vary wildly; however, the long term costs include the normal rate. He explained that those normal rates are assuming they are not doing as well as over the past few years and those are the rates they figure the employer should be paying; however, those are only 4'/2 to 5%. When the 2.7% is added, it is only a matter of a 1 '/2 to 2% above that. Mr. Organ stated that should that be the long term issue, to add a cost into the comparison that is 14, 16, or 18%, as the cost of the benefit, appears to throw a wrench into what is being attempted to accomplish with the salary survey. He indicated the salary survey, meaning a total compensation, is important. Mr. Organ stated that the other piece of the salary survey with relation to the health benefits is that the way it is set up means that should less be paid for health benefits here, they go into the survey; however, it is made up on the salary end. He indicated that throughout the negotiations the Union had being attempting to state they do not want it coming out of the survey. The other indexed agencies, Sausalito, South San Francisco, etc., would move up because of the cost of healthcare and the survey would state it should go into salary. Mr. Organ stated his Union is indicating that should the City give a more generous package on the healthcare end, it does come out of that survey in the end, only it is guaranteed and provides a better level of benefit for the membership, something they are more satisfied with and much more standard in terms of public agencies. He stated that, in fact, as a proposal, it is a very modest one, in comparison to the other benefits, which again, gets balanced out through the survey process. Mr. Organ suggested that to look at the difference, page 30, from years, 1,2,3 and 4 on the health benefit, the cost involved is $101 versus the $72 proposal from Management. He stated Management's forecast is $72 per month in the next year and their proposal was $68, which is very close, $82 the next year versus $63, and $93 versus $55. Mr. Organ submitted that if these are the forecasts and indexing is part of the competitiveness, and it could be built in in terms of the survey, which it already is, he believed it to be an opportunity to improve the way the healthcare program works within the bargaining unit. While being unaware of what the Firefighters and Police are looking at in terms of this, Mr. Organ stated a lot of MAPE's bargaining unit is very concerned about this issue, much more so that perhaps the other units. He indicated he did not know the reason nor the demographics; however, his bargaining unit was very concerned in this area and in looking at the comparisons, he could see why they are. With regard to budget authorization, Mr. Organ stated he understood Council did not wish to exceed a particular authorization. He stated the reason the Union was here to request consideration of this was the comparable agencies and the other agencies on the health benefit, which is the cost item in question. The additional item is what to do with the survey with an employer contribution added. He indicated that both these issues are extremely important to the members and should Council be unable to address them, it would be virtually impossible to reach the contract. Mr. Organ stated it does offer the 2.7% at 55, which the Union really likes; however, the competition is adopting the better retirements. He stated this is happening across the board and in non -Union places. He again requested Council to consider this. Recognizing it to be a tough situation, Councilmember Cohen stated Council did need to take note of Mr. Organ's last point. He indicated that issues to be considered relate to comments made in the presentation, i.e., where City employees are forced to live and travel from to work here, Vallejo, Napa, Santa Rosa, etc., and everyone was aware of the cost of living here. He stated the City needed to remain competitive and retirement considered, noting there had been discussion on how that requires a multi-year contract, which he did not see any way around. While understanding the concern about healthcare costs and the desire to find a specific way to deal with the indexing, he questioned whether everything possible had been done to explore this. Lacking a brilliant idea on how to resolve this issue, Councilmember Cohen stated he understood the concern and why there is not a willingness to take that risk, as an employee, in SRCC Minutes (Regular) 10/21/2002 Page 29 SRCC Minutes (Regular) 10/21/2002 Page 30 accepting this contract Mayor Boro stated that not only MAPE member issues and needs had to be dealt with as individuals and employees. He recalled he was with San Rafael in the early 1990s when increases were not given for two or three years because of the City's financial situation. He stated most cities did not; however, San Rafael was pretty extreme, and then the idea of 4% and the shared goals to be the best in Marin and to share the bonuses and raise things up arose. He believed that when times were good the City has shared and quite frankly, things were not good presently, and he reiterated his apprehension of what has been authorized to go out. Mayor Boro stated a little reality check was necessary, noting a lot of people commute, the private sector pension plans are gone for the most part, health plans are being diminished (he had read yesterday that very few employers are providing full health care). While in some minds this was not an issue, Mayor Boro stated it was an issue with him because while the indexing was great, the comparisons were fine; however, what it came down to was how much money the City would spend, and how much could be afforded. He stated that unless the Council wished to change its position, this was the current authority. He indicated that should there be a desire to spread this money differently, that was fine and should the Council wish to raise the authority they could do this. If they did not wish to raise the authority and the members did not wish to spread it differently, Mayor Boro stated he believed it was necessary to proceed with the process requested. Mayor Boro stated he truly believed that the 17% over four years was pretty generous based on today's conditions, and especially today. He believed it was generous six or seven months ago based on prevailing conditions and as the end of the year approaches, with a bad economy, declining sales taxes, an un -sustained stock market, etc., he stated that perhaps this was not the time to enter into a four-year contract, rather consider a one-year contract, and consider the pension another time. He stated this was something to think about; however, unless Council wished to change its authority, this was the situation. He reiterated that 17% was the amount of money available to spend and it was the choice of the members how this was applied. Councilmember Phillips requested confirmation on what was intended to be accomplished this evening, pursuant to seventeen meetings, etc. Responding, Mr. Nordhoff explained that with the staff report was an attachment on the employee/employer resolution and a process where MAPE declared impasse. He explained that the first step in that process is to hold a public hearing before the City Council, which has now been done, and either the City Council believed some resolution could be resolved now or the next step would be to go to mediation, which is non-binding. Mr. Nordhoff stated staff had worked with Mr. Organ to select a mediator and November 12, 2002 had been scheduled for an all -day hearing. Subsequently, the outcome of that hearing would be reported back to Council. Councilmember Phillips stated that presumably, that process is one more step that could bring the parties closer together and somewhat enlightened with regard to each other's position. He inquired as to what would happen at the end of the mediation process. Assistant Human Resources Director Daryl Chandler explained staff would be reporting back to Council on whether or not, through mediation, resolution was reached on a contract, whether that be as currently proposed or something else. He stated there then would be an opportunity to make a decision regarding what would be done in the absence of reaching agreement, which could include working without an agreement for a year and starting the process again next year, or some combination that could include an across the board salary increase to attempt to stay somewhat competitive, restarting the negotiations next year. Mr. Chandler stated the optimum would be that at the end of the mediation process, staff would come back and report that they as City negotiators, and MAPE representing the bargaining unit, had reached agreement, and were proposing Council's adoption of such agreement. Councilmember Phillips indicated his reticence after seventeen meetings and Council's Closed Session discussions, and it was difficult for him to imagine this issue could be resolved this evening at 11:45 p.m. Therefore, mediation struck him as the likely next step, which he hoped would be constructive, believing both parties desired resolution. He stated that as suggested by Mayor Boro, a shorter- term contract could make sense. Confirming that a contract had been offered and at this point, there was distance between the two sides, Councilmember Heller inquired as to what happens to this contract during the mediation process. Mr. Chandler referred to page 31 of the staff report, which summarized the items discussed over the course of the negotiations with MAPE, and is a document that was shared with the bargaining unit. He did not believe there was any disagreement on the items tentatively agreed to and those that remain at issue. He believed the intent of the mediator would be to obtain a SRCC Minutes (Regular) 10/21/2002 Page 30 SRCC Minutes (Regular) 10/21/2002 Page 31 good understanding of the issues and in so doing, would meet with the parties as a committee. He explained that then the usual practice would be to divide the parties into separate rooms with the mediator moving back and forth in attempting to ascertain whether or not there was any room for movement on any of the issues, either all of them or some of them, and whether this could reach some resolution. Councilmember Cohen stated it was obvious there would not be a vote of resolution this evening and he hoped on going into mediation there would be some thought of attempting to find a resolution, recalling being in San Rafael in the early 1990s and doing things that were believed necessary at the time. He also believed this organization spent a number of years recovering from some of the choices made then and the City's ability to be a first-class organization and provide the level of service expected to citizens, suffered as a consequence of some of those difficulties. He stated this should be kept in mind. Councilmember Cohen stated he was not as optimistic that a one year agreement was the best choice for the employees or the City at present, not knowing how next year would be, and there could be some benefit to obtaining a multi-year agreement now before the hammer drops, which he anticipated happening. He stated it could be in the City's interest to have some of these issues resolved, and while understanding this makes some of the other choices tougher in terms of service levels, he recalled, in particular, the Police Department going from the best to the worst paid in the space of a couple of years and what this did to morale. He stated that to get to a situation where it is impossible to offer raises, and everyone else has raises and contracts over a period of a number of years, San Rafael would pay a price, as would the constituents in terms of quality of service. Councilmember Cohen stated he particularly understood the concern about healthcare costs and did not believe the City could bear all that risk should healthcare costs continue to escalate. However, he understood the concern on the part of the employees about not wishing to bear all that risk by locking into a four-year agreement and then seeing healthcare costs eat up what was considered to be a gain on the salary side. While having no brilliant insights on a resolution to this, Councilmember Cohen stated he was hopeful that in the mediation process, this one particular piece could be worked on further to get the parties closer together. Offering a personal insight, Bill Tuikka stated he was almost thirty-eight years old when he came to work for the City of San Rafael, and before that he had worked for a variety of non- profits, school districts and even some private industry. He reported this was in the tough 1980s, inflation was high, times were not easy, and somehow, between the Management and Miscellaneous workers there appeared to be a feeling of all being in this together, and it did not appear that way in San Rafael presently. As an example, Mr. Tuikka stated that a Miscellaneous person with a spouse and three children electing the highest paid health plan would have extreme high costs, whereas, in San Rafael, a Management person with a spouse and three children on that plan would have their healthcare completely paid for. Mr. Tuikka stated that he and a friend who is the Personnel Analyst for Yolo County, did a survey of many cities up and down the I80 corridor and the Sacramento Valley, and the disparity between the Management and Miscellaneous benefits are not that great. He agreed that Management may have higher salaries, car allowances and perhaps better benefits when paying for education, etc.; however, healthcare appeared to remain more similar than in San Rafael. With regard to the Miscellaneous Group, Mr. Tuikka stated the feeling was that there was not similar treatment and this evening's hearing could possibly have been precluded had there been an indexed health plan. Clarifying a point he made earlier, Mayor Boro stated he cited what happened in the early 1990s because they were bad times; however, a plan was then generated which he believed to have been very creative and the raises all employees and units received over the past several years had been exceptional. He stated that when times are good, they are shared and there is still a desire in the present situation to share as much as possible; however, there is only so much that can be done at this point. He believed this to be a difference of opinion between the parties. Councilmember Phillips moved and Councilmember Heller seconded, to refer this item to a mediator pursuant to Section 13 (b) of the Employer/Employee Relations Resolution. AYES: COUNCILMEMBERS: Cohen, Heller, Phillips and Mayor Boro NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: Miller SRCC Minutes (Regular) 10/21/2002 Page 31 SRCC Minutes (Regular) 10/21/2002 Page 32 COUNCILMEMBER REPORTS: 17. Draft Transportation Vision Plan: - File 170 x 9-1 Mayor Boro distributed a handout on Transportation to Councilmembers, which he indicated would be mailed to 14,000 voters. He reported that Marin County Supervisor John Kress would host a meeting at the San Rafael Community Center on October 28, 2002, and as he unfortunately, would be unable to attend, Mayor Boro expressed the hope that as many Councilmembers as possible would be present. He stated it would be an open house approach and the idea of the mailing had been to encourage those who do not normally come to the meetings to attend. Saint Mark's Traffic Study: - File 11-1 x 10-5 Councilmember Phillips requested that the Saint Mark's Traffic Study be placed on the Agenda for either the November 18 or December 2, 2002 Council Meeting. There being no further business, the City Council meeting was adjourned at 11:52 p.m. JEANNE M. LEONCINI, City Clerk APPROVED THIS DAY OF 12002 MAYOR OF THE CITY OF SAN RAFAEL SRCC Minutes (Regular) 10/21/2002 Page 32