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HomeMy WebLinkAboutCC Minutes 1994-04-04SRCC MINUTES (Regular) 4/4/94 Page I IN THE COUNCIL CHAMBERS OF THE CITY OF SAN RAFAEL, MONDAY, APRIL 4, 1994, AT 7:00 PM Regular Meeting: San Rafael City Council Present: Albert J. Boro, Mayor Paul M. Cohen, Councilmember Barbara Heller, Councilmember Joan Thayer, Councilmember David J. Zappetini, Councilmember Absent: None Others Present: Pamela J. Nicolai, City Manager Gary T. Ragghianti, City Attorney Jeanne M. Leoncini, City Clerk OPEN SESSION - CITY COUNCIL Mayor Boro announced in Open Session that the City Council would be going into Closed Session to discuss the following Closed Session items: 1. CLOSED SESSION - CONFERENCE ROOM 201 a. Conference with Legal Counsel - Existing Litigation (Government Code Section 54956.9(a)) ■ Case name: Pembroke v. City of San Rafael, U.S. District Court, Northern District of California, No. C92 -1869 -BAC ■ Case name: Bullock v. City of San Rafael, Marin County Superior Court, No. 152271 b. Conference with Legal Counsel - Anticipated Litigation ■ Initiation of litigation pursuant to Government Code Section 54956.9(c): One (1) case(s). Domar Electric, Inc. v. City of Los Angeles (Request for City of San Rafael Amicus Participation) C. Conference with Labor Negotiator, Austris Rungis Employee Organizations: ■ San Rafael Police Association ■ San Rafael Firefighter's Association ■ M.A.P.E. ■ Police Mid -Management Association The City Council then met in Closed Session in Conference Room 201 to discuss the above mentioned items. IN THE COUNCIL CHAMBERS OF THE CITY OF SAN RAFAEL, MONDAY, APRIL 4, 1994, AT 8:00 PM - OPEN SESSION RE: CLOSED SESSION ITEMS la. City Attorney Ragghianti announced that no reportable action was taken. lb.City Attorney Ragghianti announced that City Council had authorized City Attorney to enter into Amicus Curiae Participation (Unanimous vote) lc.City Attorney Ragghianti announced that item was not discussed. ORAL COMMUNICATIONS OF AN URGENCY NATURE RE: USE OF IRVING LITCHFIELD'S BERMUDA PALMS PROPERTY - File 10-5 Kym Trippsmith, Executive Producer of Amazon Productions, an organization that organizes benefit concerts and festivals for non-profit organizations, stated there are no satis- factory facilities to use for benefits. They are currently using the Fairfax Pavilion and the Women's Building, neither of which is adequate. Ms. Trippsmith stated that Bermuda Palms, owned by Irving Litchfield, has two ballrooms which would be perfect for their use, and he has offered it to them. However, she stated she is aware there is a problem with parking, and proposed the possibility of leasing or getting adjacent parking donated during an event. She pointed out that this City is in desperate need of this type facility, and she is willing to work with the City and with Mr. Litchfield to find a way to work this out. City Manager Nicolai stated she will contact Ms. Trippsmith. SRCC MINUTES (Regular) 4/4/94 Page 1 SRCC MINUTES (Regular) 4/4/94 Page 2 CONSENT CALENDAR Councilmember Cohen moved and Councilmember Heller seconded, to approve the recommended action on the following Consent Calendar items: ITEM RECOMMENDED ACTION 2. Approval of Minutes of Regular Meetings of Approved as submitted. March 7 and 21, 1994 (CC) 3. Resolution Authorizing Destruction of Duplicate RESOLUTION NO. 9121 - AUTHORIZING Personnel Records in Public Works Department THE DESTRUCTION OF CERTAIN PUBLIC (PW) - File 9-13 x 9-3-40 WORKS RECORDS (Duplicate Personnel Records) 5. Resolutions of Appreciation for Dave Nattress, RESOLUTION NO. 9122 - RESOLUTION OF Bill Bundesen and Steve Reese - Public Works APPRECIATION FOR BRAVERY, QUICK Streets Division (PW) - File 102 x 9-3-40 THINKING AND COOLHEADEDNESS OF DAVID A. NATTRESS WHO PERFORMED ABOVE AND BEYOND THE CALL OF DUTY TO ASSIST IN THE APPREHENSION OF TWO FELONS 6. Request for Funds for 1994 Safe Graduation Night Parties for: (CM) - File 105 a. Terra Linda High School b. San Rafael High School RESOLUTION NO. 9123 - RESOLUTION OF APPRECIATION FOR BRAVERY, QUICK THINKING AND LOGICAL REACTION OF STEVEN REESE IN ASSISTING THE POLICE DEPARTMENT TO APPREHEND TWO CONVICTED FELONS RESOLUTION NO. 9124 - RESOLUTION OF APPRECIATION FOR BRAVERY, QUICK THINKING AND LOGICAL REACTION OF WILLIAM F. BUNDENSEN, III IN ASSIST- ING THE POLICE DEPARTMENT TO APPREHEND TWO CONVICTED FELONS RESOLUTION NO. 9125 - AUTHORIZING A DONATION OF $100 TO TERRA LINDA HIGH SCHOOL SAFE GRADUATION PARTY RESOLUTION NO. 9126 - AUTHORIZING A DONATION OF $100 TO SAN RAFAEL HIGH SCHOOL SAFE GRADUATION PARTY 7. Resolution of Appreciation to Hollie Stanaland, RESOLUTION NO. 9127 - RESOLUTION OF Children's Librarian, Employee of the Year APPRECIATION TO HOLLIE STANALAND, for 1993 (CM) - File 102 x 9-3-61 x 7-4 CHILDREN'S LIBRARIAN, EMPLOYEE OF THE YEAR FOR 1993 8. Approval of Temporary Street Closures for Approved staff recommendation - Classic Car Parade - May 21, 1994 (RA)partial closure of Fourth Street, - File 11-19 x (SRRA) R-140 #8 Court Street and 'A' Street to accommodate the Car Parade, Car Display and Block Party Street Dance. 9. Amendment to BMR Housing Agreement for Boyd Court Condominiums to Include People with Disabilities as a First Priority for Purchase (RA) - File 5-1-322 x 229 x 13-1-1 x (SRRA) R-140 #8 11 2 Resolution Renewing Contract with Dolly Nave, Official Hostess of Albert Park Concession RESOLUTION NO. 9128 - AUTHORIZING THE EXECUTION OF AN AMENDMENT OF THE BELOW MARKET HOUSING AGREEMENT RE: BOYD COURT CONDOMINIUMS BETWEEN THE CITY OF SAN RAFAEL AND THE SAN RAFAEL HOUSING GROUP, INC. (to include People with Disabilities as a First Priority, along with City Employees) RESOLUTION NO. 9129 - AUTHORIZING THE SIGNING OF AN AGREEMENT WITH SRCC MINUTES (Regular) 4/4/94 Page 3 (Rec) File 4-10-161 x 9-3-65 x 9-3-66 SRCC MINUTES (Regular) 4/4/94 Page DOLLY NAVE, OFFICIAL HOSTESS OF ALBERT PARK CONCESSION (for a 30 month period from 7/1/93 thru 12/31/95) 12. Resolution Approving Extension of LeaseRESOLUTION 9130 - AUTHORIZING Agreement with San Rafael Pop Warner Football THE SIGNING OF AN AGREEMENT WITH Club Re: Storage Space at Albert Park SAN RAFAEL POP WARNER FOOTBALL Stadium (Rec) - File 4-10-127 CLUB FOR STORAGE SPACE AT ALBERT PARK STADIUM (2 year agreement 7/1/93 to 6/30/94 at $55 per month; 7/1/94 to 6/30/95 at $65 per month) 13. Legislation Affecting San Rafael (CA) - Approved staff recommendation to: File 9-1 OPPOSE AB 3156 (Tucker) Emergency Ambulance Services: Implementation. AYES: COUNCILMEMBERS: Cohen, Heller, Thayer, Zappetini & Mayor Boro NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None DISQUALIFIED: COUNCILMEMBERS: Zappetini (from item 9 only, due to Conflict of Interest) The following items were removed from the Consent Calendar for discussion: 4.RESOLUTION AUTHORIZING EXECUTION OF FIRST AMENDMENT TO RIGHT-OF-WAY CONTRACT WITH SAN RAFAEL GABLES FOR MERRYDALE OVERCROSSING PROJECT (PW) - File 2-4-18 x 4-8-23 x 4-13- 80 x 11-1 x 9-3-40 x 11-16 Councilmember Thayer asked the Council be provided with an up-to-date report on all the costs that have been approved with regard to Merrydale Overcrossing and also what was originally proposed. Councilmember Cohen moved and Councilmember Heller seconded, to adopt a Resolution authorizing execution of first amendment to right-of-way contract with San Rafael Gables for Merrydale Overcrossing project. RESOLUTION NO. 9131 - RESOLUTION AUTHORIZING THE SIGNING OF FIRST AMENDMENT TO RIGHT-OF-WAY CONTRACT WITH SAN RAFAEL GABLES HOMEOWNERS ASSOCIATION FOR THE CONVEYANCE AND ACCEPTANCE OF A STORM DRAIN EASEMENT FOR THE MERRYDALE OVERCROSSING PROJECT AYES: COUNCILMEMBERS: Cohen, Heller, & Mayor Boro NOES: COUNCILMEMBERS: Thayer ABSENT: COUNCILMEMBERS: None DISQUALIFIED: COUNCILMEMBERS: Zappetini (due to Conflict of Interest) 10.RESOLUTION AUTHORIZING FIRE CHIEF AS HAZARDOUS MATERIAL RESPONSE TEAM ADMINISTRATOR TO SIGN GRANT AGREEMENT WITH CALIFORNIA DEPARTMENT OF TOXIC SUBSTANCE CONTROL FOR PURCHASE OF A NEW HAZARDOUS MATERIALS RESPONSE UNIT (FD) - File 4-8-25 x 4-2-184 x 4-10-167 x 13-2 x 9-3-31 Councilmember Zappetini asked for a clarification of the funding. Fire Chief Marcucci stated that we received a $45,000 grant from the California Environmental Protection Agency, Department of Toxic Substances Control. The second $45,000 will be from the private sector, union contributions or a portion of the $15,000 we collect each year from all the other cities in Marin County. There will not be any City money used in the purchase of this vehicle. Councilmember Zappetini asked how often the response unit is used, and Chief Marcucci answered it averages about once a month. It is not only used for hazardous materials, it also carries the large storage tanks for air for the breathing apparatus. Councilmember Thayer moved and Councilmember Zappetini seconded, to adopt a Resolu-tion authorizing Fire Chief as Hazardous Material Response Team Administrator to sign grant agreement with California Department of Toxic Substance Control for the purchase of a new hazardous materials response unit. RESOLUTION NO. 9132 - AUTHORIZING THE FIRE CHIEF, JPA ADMINISTRATOR TO EXECUTE A GRANT AGREEMENT WITH THE CALIFORNIA DEPARTMENT OF TOXIC SUBSTANCES CONTROL FOR THE PURCHASE OF A NEW HAZARDOUS MATERIAL RESPONSE APPARATUS AYES: COUNCILMEMBERS: Cohen, Heller, Thayer, Zappetini & Mayor Boro SRCC MINUTES (Regular) 4/4/94 Page 3 4 NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None SRCC MINUTES (Regular) 4/4/94 Page SPECIAL PRESENTATION 14.CANAL AREA INSPECTION PROGRAM CERTIFICATE OF COMPLIANCE TO ECUMENICAL ASSOCIATION FOR HOUSING, PROPERTY OWNER OF 455 CANAL STREET (Pl) - File 10-2 x 9-3-17 x 13-1 Mayor Boro explained that in 1992, the City Council started a 4 -point program in the Canal area, noting one of the components had to do with the code enforcement inspec- tion program to bring apartment buildings into compliance with building, zoning and health and safety codes. The Code Enforcement Officer has inspected the units, and as they have come into compliance, the Council has recognized the property owners publicly. Mayor Boro awarded the Certificate of Area Inspection Program to Darin Delagnes, representing Ecumenical Association for Housing, and thanked them for their cooper- ation with the City. PUBLIC HEARING 15.PUBLIC HEARING - APPEAL OF HANDICAPPED ACCESS REQUIREMENTS - 95 RACQUET CLUB DRIVE (PW) - File 13-1-1 x 1-6-1 Mayor Boro opened the Public Hearing. Public Works Director David Bernardi explained the Council is sitting as the Board of Appeals to hear a request by the Rafael Racquet Club to allow them to not modify the bathrooms at this time. He stated that since April 1, 1994, the access law provides that if the construction project costs less than $75,000, an exception may be approved if the finding of unreasonable hardship can be made. He noted in this case, the cost to modify the bathrooms is $42,500, which is equal to 90 percent of the whole spa installation project. Mr. Bernardi stated that Kim Blackseth, consultant to the City on disabled access regulations, has recommended that the Council approve the request since the estimated cost of the access -related construction is $9,920 or 21 percent of the total cost and meets the guidelines required by Title 24. Mr. Bernardi stated staff recommends Council grant the appeal and not require the toilet rooms be made accessible at this time. Mr. Bernardi stated he spoke with Peter Mendoza, who noted if the Rafael Racquet Club cannot modify the bathrooms now, it may be possible to provide handicap accessible portable facilities in the interim, and recommended Council include that as a part of the authorization of the appeal. Councilmember Cohen asked if it was the intent of Rafael Racquet Club to eventually comply with the bathroom requirements. Mr. Bernardi answered that they intend to comply, but the money will not be available for 1-2 years. He also pointed out that if, within the three year period, they do other work that ultimately exceeds the $75,000, they then have no choice but to remodel the bathrooms; the $75,000 does not start over each time - it is within a 3 -year cycle. Councilmember Zappetini asked if the cost of the temporary bathrooms would be worked into this formula. Mr. Bernardi stated he thought it should be. Mayor Boro asked if the applicant was aware of the temporary bathroom solution. Mr. Bernardi stated they are not, but they have previously expressed a willingness to work with the City in any way they could; therefore, he did not anticipate a problem. Mayor Boro asked how much the temporary bathrooms would cost. Mr. Bernardi stated the City pays about $50 per month. Bill Redding, President, Board of Directors of the Rafael Racquet Club, stated the Club is on a hill with many stairs, and he is against the temporary bathroom because of the limited space. He did not feel the temporary restroom would be used because there are no handicapped people using the Club now, and there are no handicapped members, nor does he anticipate any in the future and believed the expense would not be justified. Harvey Klyce, Manager of the Rafael Racquet Club, stated if the modification is approved as presented, it would make the whole downstairs of the Club handicap accessible. They would be able to get from the parking lot, through the locker rooms, onto the eating patio, into the pool, the wading pool and playground. Mr. Klyce stated that from a selling point of view, by putting in the hot tub first, they would be in a SRCC MINUTES (Regular) 4/4/94 Page 4 km SRCC MINUTES (Regular) 4/4/94 Page better position to sell memberships; and therefore, would have more money for projects in the future. Peter Mendoza stated many handicapped people have bladder control issues, especially around water; therefore, bathroom access is really essential. Mr. Mendoza stated by law the Rafael Racquet Club must comply with the Americans with Disabilities Act, and he is trying to come up with a solution so they can use temporary restrooms until the Club is able to come up with the money for a permanent solution. Mayor Boro closed the Public Hearing. Councilmember Thayer stated she agreed with Mr. Mendoza that it is necessary to provide accessible bathrooms. Member Cohen also agreed, and questioned doing all of the access improvements and not providing bathroom access. He suggested this be referred back to staff to work with the Rafael Racquet Club to determine if there is a feasible way to achieve bathroom access, then bring it back to Council for final action. Mr. Cohen felt that since the Club had a concern about providing temporary facilities, perhaps staff can help find a way to provide bathrooms in a way to fit the Club's budget. Mr. Cohen felt Council should not yet approve the appeal of handicaped access requirements with temporary bathroom facilities conditions imposed until staff does more research. Councilmember Thayer stated that in fairness to the owners, the costs should be determined before imposing that stipulation on their appeal. Councilmember Zappetini asked how accessible the current bathroom facilities are for a handicapped person. Mr. Klyce answered the locker rooms were built 35 years ago, and the bathrooms are undersized by normal standards. Currently, both men and women have difficulty walking into the bathrooms. He stated if everything was ripped out, probably one handicapped toilet could be put in each side, but then they would be in violation of the use codes because they would have too few toilets for people. Therefore, the building will have to be modified in some way. Mayor Boro stated Council supports the initial appeal but asked that the issue of temporary wheelchair accessible bathroom facilities be explored and brought back to the next meeting. Councilmember Cohen moved and Councilmember Thayer seconded, to refer this item back to staff for investigation of the feasibility of providing interim sanitary facili-ties and bring it back to Council at the meeting of April 18, 1994. City Clerk Leoncini asked if the public hearing would then be reopened. Mayor Boro stated it would not, since Council has heard all the issues. AYES: COUNCILMEMBERS: Cohen, NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None COUNCIL CONSIDERATION OLD BUSINESS None NEW BUSINESS Heller, Thayer, Zappetini & Mayor Boro 16.DISCUSSION OF BROWN ACT AMENDMENTS (CA) - File 9-1 City Attorney Gary Ragghianti gave an overview of the Brown Act Amendments which became effective April 1, 1994. He stated the Brown Act applies only to legislative bodies as that term is defined in the Act, including groups such as the City Council or the Planning Commission. Under the new Act, it also applies to any board or committee or any other body of the City, whether it is permanent or temporary, whether its function is to make decisions or simply to advise, which was created by the Charter of the City or by an ordinance or resolution or any other formal action of the Council. It also applies to any standing committee of the City Council, or one or more of these bodies which has continuing subject matter jurisdiction or a meeting schedule which is fixed by either resolution or some action taken by the City. The Brown Act Amendments point out that a City Council advisory committee consisting solely of one or two Councilmembers, which would otherwise be covered under the definition of a board or committee or other body of the City which was created by formal action, is excluded from coverage under the Brown Act, provided that the committee is not a City Council standing committee. Therefore, apparently, one or two Councilmembers can be sent as a committee somewhere to report back as long as it SRCC MINUTES (Regular) 4/4/94 Page 5 SRCC MINUTES (Regular) 4/4/94 Page is not a standing committee, and is not a legislative body within the definition of the Act. The Brown Act Amendments added a definition for a meeting. A year or so ago, the Novato City Council attended a wedding together, and the newspaper decided that might have been a meeting. Now, the definition of a meeting is "any congregation of a majority of the Council at the same time and the same place, where the purpose is to hear, discuss or deliberate on any item that is within the subject matter juris- diction of the legislative body, regardless of where it occurs." Mr. Ragghianti further explained the Brown Act made certain that a legislative body cannot do indirectly what it prohibits them from doing directly by providing that any use of direct communication, personal intermediaries, technological devices such as fax machines, that is employed by a majority of the legislative body to develop a collective concurrence as to action to be taken on an item within their jurisdiction, also constitutes a meeting. It is not new law that you cannot call each other up and come to a collective decision on how you are going to act on a matter that is within your subject matter jurisdiction. He stated it is important to note that a meeting does not include individual contacts or conversations between you and anybody else, or an attendance by a majority of the legislative body at a conference or some similar gathering that is open to the public and involves discussion of general interest to the public, provided that a majority of the legislative body does not discuss among yourselves business of a specific nature that is within their subject matter jurisdiction while you are there. Also, it is not a meeting if a majority attend an open and publicized meeting which is organized to address a topic of local community concern by some person or organization other than the City, providing that while there, a majority of the legislative body do not discuss among yourselves business of a specific nature that is within your subject matter jurisdiction. The Act states attendance at any social or ceremonial event does not constitute a meet- ing, again providing that while there, you do not discuss among yourselves business of a specific nature that is within your subject matter jurisdiction. Mr. Ragghianti stated that changes were made in the broadcasting of meetings in terms of when that constitutes a violation of the Act. A legislative body may not prohibit or otherwise restrict a broadcast of the proceedings unless you make a reasonable finding that the broadcast cannot be accomplished without the following: noise, illumination or obstruction of view that would constitute a persistent disruption of the proceedings. Meetings cannot be held outside the City of San Rafael unless there are certain specific reasons, one of which is you may visit your Attorney's office for a closed session on pending litigation when to do so would reduce legal fees or costs. There -fore, if we have outside counsel and he/she is in San Francisco or some other city, we are entitled to conduct a closed session if we make this finding. All meeting facilities, regardless of where we choose to conduct a meeting, must now be, by statute, wheelchair or otherwise accessible to disabled persons. The Brown Act now contains some specific language on limited comments that Council -members may make on non -agenda items, remembering that the Brown Act still requires that within 72 hours before the date of a meeting, an agenda must be posted. The agenda is supposed to contain all the matters coming before the Council, so that the public will know what you are considering. There are exceptions to this; in the case of emergencies, or matters coming to the attention of the Council after the agenda has been posted, if approved by a 2/3rds vote. The Brown Act now adds an additional prohibition against discussion of non -agenda items other than as permitted by the exceptions. However, the Amendments permit the following limited comments on non - agenda items: Councilmembers can make a brief response to statements made or questions posed by anyone exercising their public testimony rights; you can ask a question for clarification; a matter can be referred to staff or other resources in the City for factual information or a report back; or you can direct staff to place a matter of business on a future agenda. Even special meetings of the Council must now provide an opportunity for public comment. It does not mean that the time for the public comment needs to be any different than it was before, they just have to be permitted to comment. Councilmember Thayer asked if this also applied to informal committee reports that have previously been given at the end of the meeting, do they now have to be noticed ahead of time? Mr. Ragghianti stated the law says you can make reports to other members of the Council with respect to matters that you have attended. Mr. Ragghianti stated it is his intention to prepare all of the closed session agenda descriptions and forward them to the City Clerk, and they will appear on the agenda, so when announced in open session, we can simply indicate that we are going into closed session to discuss the matters on the agenda. SRCC MINUTES (Regular) 4/4/94 Page 6 SRCC MINUTES (Regular) 4/4/94 Page 7 Another major change in the law is that all legislative bodies, prior to going into closed session, must now convene in open session together to announce they are going into closed session. The purpose of this is to permit a person to contest our right to go into closed session or to make a statement about it. There is a provision in the law for a court to order a closed session to be videotaped if a lawsuit has been brought and if the court has determined that the Brown Act has been violated. The circumstances for conducting a closed session based on significant exposure to litigation have now been articulated. In the past, we simply said that facts and circumstances indicated there was a significant exposure to the City to litigation. Now, these new amendments specify what facts and circumstances permitting the conduct of such a closed session with legal counsel are. Facts which might result in litiga- tion against the City that are not yet known to a potential plaintiff; for example, some condition of public property that we think may conceivably result in exposure to the City, but which has not resulted yet in the filing of a claim, and which has not been brought to our attention by anyone, yet we wish to speak to the Council about it. We can meet in closed session in that circumstance, and we are not required to disclose any of the facts or circumstances. We may discuss those facts which exist, that might result in litigation against the City that are known to a potential plaintiff, provided that we recite prior to the closed session what those facts and circumstances are. This is something short of a claim but which might be a letter that has been written or some incident that has occurred or other transaction which has taken place which is obviously known to a potential plaintiff which we believe might conceivably result in exposure to the City. We are required now to generally briefly describe what these facts and circumstances are in the item before going into closed session. A claim must be available for public inspection. If somebody threatens to sue us in open session, we have the right to retire immediately into closed session. We do not have to discuss what we should do or how we should respond to such a statement. Closed sessions for employee discipline now require advanced written notice to the employee of the right to have the matter heard in open session. The Brown Act Amend- ments now state that a closed session on disciplinary matters is conditioned on giving written notice to the employee, personally or by mail at least 24 hours before the closed session, advising that employee that he/she has the right to have the matter heard in open session. An employee, for purposes of this particular matter, does not include an elected official, a member of the legislative body or an independent contractor. There are provisions in the Brown Act that prohibit discussions of the City's avail -able funds or funding priorities or budgets in closed sessions. A clean-up bill, SB752, was received today that now permits Councils to discuss funding priorities and the City's financial circumstances in connection with labor negotiations. One of the biggest changes that has occurred is the public reporting which is now required for practically all closed sessions. The responsibility of the City to make a public report of action that it has taken depends on the type of matter discussed. Most of the obligation to make a public report depends on some final action being taken by the Council. As a general rule, if there is no final action, there is no duty to report publicly. If there is final action in closed session, there is a duty to report once you convene in public session. With regard to real property agreements, if the Council approval finalizes an agreement to buy, sell, lease or exchange real property, we have to tell the public the substance of the agreement that was made in open session, at the same session at which the closed session occurred. However, if final approval to buy, sell, lease or exchange real property rests with another party to the negotiations, then the City must disclose that fact only to somebody who asks and only after the other party has informed the City that it has agreed to the transaction. Somebody has to ask, and we only have to tell that person who does ask after the other party to the negotiations has said, "Yes, I agree." When we authorize our participation as amicus curiae in a piece of litigation, then we must report that fact to the public. Also, we have to ask Council permission in closed session to do that; previously it was left up to the City Attorney to decide whether to participate or not. In all the decisions made publicly, the vote tally must be given - who voted for, who voted against and who abstained. Mr. Ragghianti indicated he forgot to do that this evening with regard to the amicus curiae, noting it was unanimous, and the record should so reflect. In the case of an authorization to one of our lawyers to file a lawsuit against someone or thing, or to intervene in an action, it must be reported in open session, and that SRCC MINUTES (Regular) 4/4/94 Page 7 SRCC MINUTES (Regular) 4/4/94 Page the defendants or other particulars will be given to any person who asks once the action has been formally commenced, unless to do so would jeopardize service of process. Nothing need be disclosed in the public session until after the lawsuit has been commenced, unless to do so would jeopardize service of process. Once the lawsuit has been commenced, it is public and someone could conceivably find out about it by simply checking the County Clerk's office. If you agree to accept an offer and by doing so, finalize a settlement of pending litigation, then we must report our acceptance and identify the substance of the agreement that has been made in open session. However, alternatively, if final approval in connection with the settlement of a piece of litigation is left with another party or with the court, then we must disclose the fact that we have agreed to settle it and the substance of the agreement only to someone asking about it and only after the agreement has become final. Most matters involving the compromise or settlement of litigation will not be reported publicly because it will be rare that action taken by the Council will finally settle the matter. Final approval of labor negotiations agreement rests with the legisla- tive body. Then we have to report the fact of approval, but we do that anyway in open session. If final approval or ratification of agreement, by a bargaining unit, for example, rests with the other party, then we do not have to make the report until the first meeting following the ratification or the approval. In order to violate the Brown Act, it used to be the law that a Councilmember was guilty of a misdemeanor for attending a meeting where action is taken in violation of the Brown Act if he/she had knowledge of the fact that the meeting violated the act. Now, the Brown Act Amendments revised the requisite intent for a misdemeanor viola- tion. Now it is attending such a meeting with..."wrongful intent to deprive the public of information to which it is entitled". The District Attorney has now been given authority to enforce the Brown Act. There is a threshold. It used to be within 30 days, notice had to be given to a public agency that a lawsuit would be filed unless they corrected the claimed violation of the Act. Now, the 30 day rule (applies) for challenges to anything we have done in open session, such as the enactment of a tax measure, but 90 days for making a written demand in connection with something that has alleged to have occurred in closed session. Mr. Ragghianti stated reporting forms have been prepared for litigation, real property negotiations and personnel matters. The title of the form which now reads CLOSED SESSION PUBLIC REPORT will be changed to CLOSED SESSION REPORT. The purpose of this form is to track what is going on in closed session. At the conclusion of a closed session, the form will be completed by the City Attorney's office with the date the closed session was held, the name of the case, if applicable, type of liti-gation authority was given, either to start a lawsuit or to settle one, or enter as amicus in an action, and to record of votes; aye, no, absent or abstension or disqualification. The bottom of the report is a Public Report Disclosure Method which would indicate the public's right to disclosure. This form will not be released to the public until it is signed in the upper right corner. Mr. Ragghianti reported that today, a series of amendments were passed by the State Legislature, not all of them substantive, some are technical. The City Attorney's office will do a follow-up memo to the City Council. Mayor Boro thanked Mr. Ragghianti and his staff for the verbal report and for the written work that he and his staff have done. Councilmember Heller asked how long these forms must be kept? Mr. Ragghianti stated he was not sure but would find out. Councilmember Cohen asked if the St. Vincent's Dining Room Advisory Committee, which is not a standing committee, would fall under the Brown Act open meeting requirement. Mr. Ragghianti indicated a committee is defined as..."a standing committee OR any other committee or board or body that was created by some formal action of the City Council which has a continuing subject matter jurisdiction." He indicated if it does, it is a legislative body, and is covered under the Act, regardless of whether or not it calls itself a standing committee. Mr. Ragghianti asked who created the St. Vincent's Dining Room Advisory Committee, by what action, who is on it, if there is a fixed meeting schedule and a continuing subject matter jurisdiction. Mr. Cohen answered it was created by the Council by resolution, and both he and Councilmember Heller are on it, there is no fixed schedule and it does have a continuing subject matter jurisdiction. Mr. Ragghianti stated that based on those answers, it would fall under the Brown Act. City Clerk Leoncini stated it is her understanding after talking with Assistant City Attorney Gus Guinan, that it does qualify. Mr. Ragghianti stated we should be conservative, and if it is a close call, we ought to consider it covered. SRCC MINUTES (Regular) 4/4/94 Page 8 SRCC MINUTES (Regular) 4/4/94 Page Councilmember Thayer asked if someone needed to record all of the minutes of the committee meetings? Mr. Ragghianti answered "No." Ms. Thayer asked if all members of those committees would have to file Conflict of Interest Statements, and once again Mr. Ragghianti answered "No", stating that Agendas have to be prepared, notice has to go out, and the public has to be given an opportunity to ask questions. Councilmember Cohen stated in the past we have taken emergency action by 4/5ths vote to add an item to the agenda and act on it, and asked if this is now precluded. Mr. Ragghianti stated the term "emergency" means there has been a catastrophe such as a flood, earthquake, etc, which is very rare. Most of the items that need to get added to the agendas are under the Exception that talks about the need to put it on the agenda arose after the 72 hour advance posting, and requires just a 2/3rds vote. Mayor Boro pointed out that it should be something that the Council feels is important and needs to be addressed prior to the next scheduled Council meeting. CITY COUNCIL REPORTS: 17a.CLEAN-UP OF SMITH RANCH POND (VERBAL) - File 5-1-239 x 13-12 x 13-1 Councilmember Cohen stated he was contacted by several constituents regarding the condition of the Smith Ranch Pond. He noted that as part of the approvals for the apartment project by Smith Ranch Pond, there were mitigations and fundings for a pond management plan and clean-up, which are now on hold. Both fencing and barricades have been erected which have been fairly effective, but there still is some debris that needs cleaning up. Mr. Cohen stated both he and Mr. Bernardi met on the site with Jean Starkweather and John Shellenberger. They discussed the clean-up of the trash and debris and also the removal of invasive, non-native species that are beginning to encroach on the pond. Mr. Cohen stated there is an interest in putting together a volunteer effort to accomplish both of those things and it will require some support from the City, such as the removal of an engine block and the remains of a washing machine. Public Works Director Bernardi stated that removal of the motor and washing machine would take a couple of hours for two City Maintenance Workers, a dump truck and a backhoe, which would be approximately $200 for equivalent staff time. The debris and plant removal would be volunteer effort, and the City would haul it. There is a cost to that, but since it is compostable material, the dump would probably take it at no cost to the City. Mayor Boro asked about protection and zoning on that site, and Mr. Cohen answered that one way to keep this from recurring is by extending the fence all the way across the front of the pond, which could be done for $5,000-$6,000. However, Mr. Cohen felt that ultimately we should have a plan for what will be done around the pond because when that land is developed, part of the mitigation will be helping to fund the pond management plan, including a planting program. He suggested waiting until that time to identify where to put a fence. He also suggested the possibility of designating this area as a wildlife conservation area, no dumping, $500 fine. Councilmember Thayer asked if there were conditions of approval with regard to ongoing maintenance around Parcel 3. Mr. Cohen answered the developers of Parcel 3 are required to participate when we do a pond management plan and ongoing maintenance of the pond. But because they own only one small piece, it is not reasonable to expect them to fund all of it. Mr. Bernardi explained that during the hearings, the developers made it clear they did not have the funds to do it alone. He stated the largest property out there is the hospital, and the project has been approved, but the finance market is not good right now, noting a new developer has an option on the property and one project has gone through the Design Review Board, but it has since been dropped. They are in the process of putting together another project, and we will be recommending the same conditions. Councilmember Thayer pointed out that because of that, there will not be an ongoing task for volunteers. Mr. Cohen noted that once we have an approved development, it will have to fund both the management plan and the ongoing maintenance. Mayor Boro stated the consensus is that the basic clean-up plan described, both from a volunteer point of view and some City participation, is agreed upon. 17b.ITALIAN STREET PAINTING FESTIVAL (VERBAL) - File 104 x (SRRA) R-140 Councilmember Thayer distributed a flyer regarding the Italian Street Painting Festival and asked the other Councilmembers, as individuals, to support the Festival on June SRCC MINUTES (Regular) 4/4/94 Page 9 10 SRCC MINUTES (Regular) 4/4/94 Page 11, 12, 1994 by buying a square at $20 each. The Council agreed. 17c.MARIN MUNICIPAL WATER DISTRICT PROJECT ON FOURTH STREET (VERBAL) - File 151 x 11-15 Mayor Boro reported that Marin Municipal Water District (MMWD) has a major problem with a 100 year old 8 -inch water pipe on Fourth Street, which will necessitate tear-ing up Fourth Street from Lincoln to E, and some on H Street, almost up to Mission. The work will take three months, and will be done during August, September and October, 1994, which is during Farmer's Market and other activities Downtown. He stated staff has been working very diligently with MMWD and that Public Works Director Bernardi will keep Council informed of the progress. Mr. Bernardi explained that all the work will be done during the day, but it will have a major impact. On the nights of the Farmer's Market, MMWD will be out of there by 4:00 p.m., and all the trenches will be closed up. Councilmember Zappetini asked if some type of pattern could be worked out to make it least disruptive. Mr. Bernardi stated we are requiring at all times that two lanes of traffic be maintained through the work area. There will be maybe a half a block at a time where there is no parking. He explained that once the main is put in, they will have to come back and reconnect all of the service lines. There are about 160 services lines which go across the street in both directions, which will be the most difficult part of the project. MMWD has been advised that we fully expect them to overlay Fourth Street from Lincoln to E Street, from curb to curb. There being no further business, the meeting was adjourned at 9:20 PM. JEANNE M. LEONCINI, City Clerk APPROVED THIS DAY OF , 1994 MAYOR OF THE CITY OF SAN RAFAEL SRCC MINUTES (Regular) 4/4/94 Page 10