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10/9/2007 - Council Minutes - CC Minutes Reg Meeting APPROVED BY THE CITY COUNCIL ON OCTOER 23, 2007 CITY COUNCIL MINUTES OF A REGULAR MEETING ORANGE, CALIFORNIA October 9,2007 The City Council of the City of Orange, California convened on October 9,2007, at 4:30 p.m. in a Regular Meeting in the Council Chambers, 300 E. Chapman Avenue, Orange, California. 4:30 P.M. SESSION 1. OPENING 1.1 INVOCATION Given by Pastor Dan Dunkerley, Child Evangelism Fellowship 1.2 PLEDGE OF ALLEGIANCE TO THE FLAG Led by Councilmember Teresa Smith 1.3 ROLL CALL PRESENT - Smith, Murphy, Cavecche, Dumitru, Bilodeau ABSENT - None. 1.4 PRESENTATIONS/ ANNOUNCEMENTS/ INTRODUCTIONS Proclamation honoring Community Planning Month, October 2007. Celebrating the next era of Orange Public Library partnerships: . Presentation to Frances Phelps, President of the Woman's Club of Orange, in appreciation for donation of the Woman's Club historical archives to the Orange Public Library & History Center. . Presentation to Helen Viviano, President of Friends of the Orange Public Library, in appreciation for recent Friends' funding donations of $11 ,500 to enhance Orange Public Library services and programs. Mayor Cavecche announced Fire Prevention Week and a Fire Station Open House on Saturday, October 13th. Pal2:e 1 CITY COUNCIL MINUTES October 9,2007 2. PUBLIC COMMENTS Liz Martinez, YMCA, invited the community to the YMCA 5th annual golf tournament on October 24th. Cathy Seelig, Friendly Center, thanked the Council for their acknowledgement of the Center as one of the top family resource centers in the State. Robert Lauten, spoke on NAFT A issues. 3. CONSENT CALENDAR All items on the Consent Calendar are considered routine and are enacted by one motion approving the recommended action listed on the Agenda. Any member of the City Council, staff or the public may request an item be removed from the Consent Calendar for discussion or separate action. Unless otherwise specified in the request to remove an item from the Consent Calendar, all items removed shall be considered immediately following action on the remaining items on the Consent Calendar. 3.1 Request Council confirmation of warrant registers dated September 6 and 13, 2007. ACTION: Approved. 3.2 Request approval of City Council Minutes, Regular Meeting of September 25, 2007. (C2500.D.4) ACTION: Approved. 3.3 Consideration to waive reading in full of all ordinances on the Agenda. ACTION: Approved. Pal2:e 2 CITY COUNCIL MINUTES October 9,2007 3. CONSENT CALENDAR (Continued) AGREEMENTS 3.4 Agreement between the City of Orange and Omnipoint Communications, Inc. to lease a portion of real property for purposes of gaining access to operate certain mobile/wireless communications facilities located on Serrano Water District's property. (A2100.0 Agr-5154) SUMMARY: The agreement between the City of Orange and Omnipoint Communications, Inc. (OCI), a subsidiary ofT-Mobile USA, Inc., would allow OCI to lease a portion of water facility property for the purposes of pedestrian and vehicular ingress/egress. The lease in the amount of $9,773.00 per year is payable to the City of Orange for the next 10 years. ACTION: Approved the agreement between the City of Orange and Omnipoint Communications, Inc. and authorized the Mayor and the City Clerk to execute the contract on behalf of the City. FISCAL IMPACT: An additional $9,773.00 plus five percent annual mcrease IS payable to the City of Orange. 3.5 Amendment No.3 to Consultant Services Agreement with Joseph C. Truxaw and Associates for additional Engineering Design Services for Project No. SP-3233, Cannon Street Realignment and Widening. (A2100.0 Agr-4738.3) SUMMARY: Amendment No.3 will increase the scope of work to be completed by Joseph C. Truxaw and Associates, Inc. to include the preparation of legal descriptions, modifications of roadway plans, landscape plans, signing and striping plans, and signal plans for the realignment and widening of Cannon Street. ACTION: Approved Amendment No. 3 to the existing Joseph C. Truxaw and Associates, Inc., Consultant Services Agreement increasing the contract amount by $25,530.00; and authorized the Mayor and City Clerk to execute the Amendment on behalf of the City. FISCAL IMP ACT: Funds are budgeted and available in the following account: 550-5011-483300-3427 Cannon Street Realignment $3,233,310.00 Pal2:e 3 CITY COUNCIL MINUTES October 9,2007 3. CONSENT CALENDAR (Continued) (REMOVED AND HEARD SEP ARATEL Y) 3.6 Professional Services Agreement with Koff and Associates to conduct a City-wide Employee Classification and Compensation study. (A2100.0 Agr-5155) SUMMARY: This agreement with the consulting firm of Koff and Associates would provide for a comprehensive City-wide Employee Classification and Compensation Study. The primary purpose of this study is to ensure City employees are properly classified and job duties, responsibilities, requirements and position titles are current. Discussion Councilmember Smith asked for clarification on the agreement, the scope of work and references. Steven Pham, Personnel Director, explained that the city wants to ensure that job duties and classifications are appropriate and consistent. Several firms were interviewed for this study, and although this firm has done most of their work in Northern California, they received the most favorable reviews, and is a stable and credible firm. The study should be complete in approximately seven to eight months. Mayor Cavecche noted that the Council needs to see scoring sheets for all bids to understand the reasoning for the recommendations. MOTION - Smith SECOND - Murphy AYES - Smith, Murphy, Cavecche, Dumitru, Bilodeau ACTION: Approved the Professional Services Agreement between the City of Orange and the consulting firm of Koff and Associates to conduct a comprehensive employee classification study, to include all classifications in the City except Police and Fire sworn classifications, and authorized the Mayor and City Clerk to execute on behalf of the City. FISCAL IMPACT: Funds are budgeted and available in the following account: 100-0000-426700 Professional & Consulting Services $125,000.00 Pal2:e 4 CITY COUNCIL MINUTES October 9, 2007 3. CONSENT CALENDAR (Continued) 3.7 Renewal of a Lease Agreement at 292 North Main Street. (A2100.0 Agr-2735.2) SUMMARY: This is a renewal of an existing lease for a 5-year period. The lease payment has been increased by 3%, with an annual adjustment based on the CPr. The lessee pays the monthly water bill and security alarm expenses. ACTION: Authorized the Mayor and City Clerk to execute a Second Amendment to Lease Agreement and Memorandum of Second Amendment to Lease Agreement for the property located at 292 N. Main Street. FISCAL IMPACT: None. APPROPRIATIONS 3.8 Request to accept into the City's revenue budget and to appropriate an $11,500.00 donation from the Friends of the Orange Public Library for a variety of items. (C2500.I) SUMMARY: The Friends of the Orange Public Library donated $11,500.00 to purchase a variety of items requested by the Library's management team for enhanced public service. Acceptance of this revenue and its appropriation into the FY 07-08 budget are requested. ACTIONS: Accepted into the City's revenue budget an $11,500.00 donation from the Friends of the Orange Public Library, into Account 100-2001-440000-9990 (Friends of the Library Donations); and Appropriated the Friends' donation to Account 100-2001- 440000-9990 (Materials & Supplies). FISCAL IMPACT: The Library's available funds for books, materials, supplies, and programs will increase by $11,500.00 in FY 07-08. 3.9 CLAIMS (C3200.0) SUMMARY: The following claim(s) have been received and investigated by the City Attorney's Office and/or the Risk Manager. After a thorough investigation with the involved departments, it is the recommendation of the City Attorney's Office that the claim(s) be denied. a. Thomas and Ethel Mullin b. Norman A. Smith ACTION: Denied Claim(s) for damages and referred to City Attorney and Adjuster. Pal2:e 5 CITY COUNCIL MINUTES October 9,2007 3. CONSENT CALENDAR (Continued) CONTRACTS 3.10 Final Acceptance of Bid No. 067-52; SP-3596; Installation of Aboveground Fuel Storage Tanks at Fire Station No.7, Police Sub-station, and Fuel System Upgrades to the Water Yard Underground Fuel Tanks and authorization to file Notice of Completion with the County Recorder (No staff report reauired). (A2100.0 Agr-5105) SUMMARY: Bid No. 067-52; SP-3596; Installation of Aboveground Fuel Storage Tanks at Fire Station No.7, Police Sub-station, and Fuel System Upgrades to the Water Yard Underground Fuel Tanks. The contractor on said job was Jem Industries, Inc. ACTION: Accepted public work improvements, authorized release of American Contractors Indemnity Company of California, Bond No. 1000768174 in the amount of $306,024.00 and authorized the Mayor and City Clerk to execute the Notice of Completion. FISCAL IMPACT: None. FACILITIES 3.11 Request for early closure of the Orange Public Library facilities to the public on Wednesday, November 21, 2007. (C2500.I) SUMMARY: Early closure (at 6:00 p.m. rather than 9:00 p.m.) of the Orange Public Library & History Center (Main Library), and the Taft and El Modena branch libraries, is requested due to lack of anticipated public use the night before Thanksgiving Day. ACTION: Approved the closure of Orange Public Library facilities to the public at 6:00 p.m. Wednesday, November 21,2007. FISCAL IMPACT: None. Staff work hours will be shifted on November 21 to begin earlier in the day (8:00 a.m. or 9:00 a.m. rather than at 12:00 noon) for those who normally work evenings. Pal2:e 6 CITY COUNCIL MINUTES October 9,2007 3. CONSENT CALENDAR (Continued) QUITCLAIMS 3.12 Quitclaim of an old Santa Ana Irrigation Company (S.A.V.I.) easement at 773 N. Elmwood Street. (D4000.0) SUMMARY: This S.A.V.r. easement has been abandoned for many years and has been offered to the property owners for their private use. ACTION: Authorized the Mayor and City Clerk to execute a Quitclaim Deed to Anthony L. Ediger and Dorotha A. Ediger, Trustees, and Subsequent Trustees, of the Dorotha A. and Anthony L. Ediger Trust, dated November 2, 1994 for the S.A.V.r. easement located at 773 N. Elmwood Street. FISCAL IMPACT: None. 3.13 Quitclaim of an old Santa Ana Irrigation Company (S.A.V.I.) easement at 1533 E. Culver Avenue. (D4000.0) SUMMARY: This S.A.V.r. easement has been abandoned for many years and has been offered to the property owners for their private use. ACTION: Authorized the Mayor and City Clerk to execute a Quitclaim Deed to Christian L. Vaughan and Tracye L. Fields-Vaughan for the S.A.V.I. easement located at 1533 E. Culver Avenue. FISCAL IMP ACT: None. MOTION - Murphy SECOND - Dumitru AYES - Smith, Murphy, Cavecche, Dumitru, Bilodeau Item 3.6 was removed and heard separately. All items on the Consent Calendar were approved as recommended. END OF CONSENT CALENDAR ******** Pal2:e 7 CITY COUNCIL MINUTES October 9,2007 4. REPORTS FROM MAYOR CA VECCHE - None. 5. REPORTS FROM COUNCILMEMBERS 5.1 Councilmember Murphy - Transportation Corridor Agency Update - 241 Toll Road Extension. (ORI800.0.44.2) Councilmember Murphy reported that the proposed 241 toll road extension in South County has been part of the proposal for many years and is the most environmental friendly of all alternatives. As part of the plans to extend the 241, the Transportation Corridor Agency Board recently approved an offer of $100 million to fund improvements to the California State Parks System, including funds to extend the lease at San Onofre State Beach Park and Trestles Beach. He clarified several issues, including the fact that San Onofre State Beach is not owned by the State, but is leased from the United States Marine Corps. This lease expires in 2021 and at that time, a fair market value will have to be negotiated for extension of any lease. Also, he noted that water from the SR-5 runs untreated into feeder locations at the beach; but that as part of this roadway extension, water treatment facilities will be provided. Also, an alternate route of expanding the SR-5 would result in hundreds of homes and businesses being demolished. 6. REPORTS FROM BOARDS, COMMITTEES, AND COMMISSIONS - None. 7. ADMINISTRATIVE REPORTS 7.1 Report on FY 07-08 Animal Control Services Contract with the County of Orange. (A2100.0 Agr-0135.T) SUMMARY: The City of Orange contracts with the County of Orange for animal control field and shelter services. The term of this annual renewal is July 1, 2007 through June 30, 2008. The contract amount is $519,220. Discussion Irma Hernandez, Sr. Assistant to the City Manager, provided a report. Mayor pro tem Dumitru asked about other options than a contract with the County, if there will be large cost increases in the future and the reasons for a large cost increase this year. Ms. Hernandez reported that some cities have their own animal control facilities or have some type of hybrid system utilizing portions of the County services. Pal2:e 8 CITY COUNCIL MINUTES October 9,2007 7. ADMINISTRATIVE REPORTS (Continued) Ms. Jennifer Phillips, Director, Animal Control Services, reported they do not expect cost increases of this magnitude in the future, that the current increase is due mainly to salary and benefit increases necessary to retain staff and also for increased animal care. In response to questions from Councilmember Smith, she explained that Animal Control will pick up dead animals in the street for no charge, will pick up dead animals from homeowners for a small charge and will also accept dead animals at their facility for no charge. City Manager John Sibley noted that he is on the Animal Control Advisory Committee, which is looking at issues, including increased revenue offset. Mayor pro tem Dumitru expressed concern that other alternatives have not been considered and asked staff to report back to Council with alternatives to this contract prior to next year's contract renewal. MOTION SECOND AYES NOES - Bilodeau - Cavecche - Smith, Murphy, Cavecche, Bilodeau - Dumitru Moved to: 1) Approve the proposed contract for animal control services between the City of Orange and the County of Orange in the amount of$519,220 and authorize the Mayor and City Clerk to execute the agreement on behalf of the City; and 2) Approve an additional appropriation of$16,174 to Account 100-0000-427100-2350 from unreserved General Fund. FISCAL IMPACT: There is currently $503,046 budgeted for FY 2007-08 in Account No. 100-0000-427100-2350 (Non-departmental - Contractual Services - Animal Control). An additional appropriation of $16,174 is required to meet this contract obligation. TAPE 1255 7.2 Report from the City Attorney on continued viability of the Resource Center and secondary impacts of day laborer solicitation. (U1100.0) SUMMARY: Opened in 1990, the Resource Center was heralded as a centralized location for employment solicitation activity that would substantially minimize the negative impacts on residents and businesses from day worker solicitation. While the Resource Center has had success matching employers with day laborers, it has failed to provide any measurable relief from these negative impacts. The negative secondary impacts of day laborer solicitation continues to be widespread, numerous and recurrent. In addition, it is clear that 80% or more of day laborer solicitation at the Resource Center likely involves an undocumented worker, solicitation that violates federal law. The Resource Center has become a forum for individuals to enter into employment relationships that violate the Immigration and Nationality Act (the Act). Pal2:e 9 CITY COUNCIL MINUTES October 9,2007 7. ADMINISTRATIVE REPORTS (Continued) However, the City Attorney's Office recommends that for now the Resource Center should remain open, but that its operation should return to the pre-2005 process in which the City required two forms of identification and completion of the federal I-9 form. The Resource Center may be an important component of the viability of future regulations as the City Attorney's Office proposes to address the secondary impacts of day laborer solicitation. Discussion - City Attorney, David DeBerry reported on the history of the Resource Center and the day laborer issue. Speaker - Leo Castro, address on file, spoke on the need for the Police to cite the contractors/employers hiring the day laborers and suggested a second Resource Center be established in another area of Orange where laborers congregate. Mr. DeBerry stated that the citing of those who hire day laborers is an approach to addressing the issue and reported statistics on recent citations issued by the City's police department to employers for violation of the private property solicitation ordinance, as well as results of recent City prosecutions which day laborers and employers have been cited. He stated that employers are often not aware that they can be cited, noting that studies have shown that about 49% of the day laborer employers are homeowners. Mayor pro tem Dumitru asked which two forms of identification are allowed on the I-9 form; stated concern with the acceptance of the Mexican Matricula Consular card as a form of ID, which he reported can be fraudulently duplicated; stated that violent crimes have occurred by and between day laborers; and stated his concern that criminal background checks are not performed on day laborers and whether that creates potential liability for the City. Mr. DeBerry responded that on the back of the I-9 form is a list of acceptable ID, and it does not include the Matricula Consular card. He stated that prior to 2005, the Resource Center did require the IDs listed on the I-9 form and staff was trained on how to recognize acceptable forms of ID. He added that studies reveal that the informal, unregulated hiring centers are more likely to have a range of problems, including violence among the day laborers, dangerous working conditions for day laborers, and day laborers not being paid, and while formal day laborer centers don't eliminate these problems, they lessen them. He further added that the problems the City is experiencing from day labor activity are public urination, jay walking, shop lifting, and the congregating of day labors on private property, even on posted private property, that negatively impacts the businesses. He stated that several court cases have held that work solicitation is a form of speech which enjoys constitutional protections and in analyzing regulations governing speech, courts will look to see if there are reasonable alternative forms for day laborers to advertise their availability for work and that the Resource Center would be such a reasonable alternative. Pal2:e 10 CITY COUNCIL MINUTES October 9,2007 7. ADMINISTRATIVE REPORTS (Continued) Mayor Cavecche stated that the courts' have determined that day laborers have the right to congregate on public streets and that the City is not allowed to prohibit such solicitation, but is allowed to regulate it. Councilmember Murphy stated that if the Resource Center is supposed to require two forms of ID, then the City should immediately comply with Federal law even if it means closing the Resource Center for a short period of time before resuming the operation under the original requirements. Councilmember Bilodeau stated that his original concern with the Resource Center in that it was advertising day laborers as available for child care with no background check. He stated that this practice has been stopped and child care services are no longer advertised. Mayor Cavecche stated that it is obvious that the Resource Center is not fulfilling the mission for what it was established; noting that the day laborer situation is the number one complaint that she receives. She added that if keeping the Resource Center open helps the city in mitigating the negative impacts, she would support its existence, along with regulations on congregating on public and private property. She reiterated Councilmember Murphy's statement that the Council was never notified of the policy changes occurring at the Center regarding identification requirements. Council discussed other Orange County cities that have closed their Resource Centers and what other cities are doing. City Attorney David De Berry explained that part of the recommendation to Council is the prohibition of day laborer solicitation on private property unless there is expressed permission from the property owner allowing solicitation. This permission would require the property owner to obtain a conditional use permit (CUP) that may have requirements such as providing restroom facilities, a traffic plan and an area to congregate. Police Chief, Robert Gustafson, responding to a question by Mayor Cavecche, noted that Immigration and Customs Enforcement (ICE) has to some extent assisted the City in enforcing illegal immigration laws. He further explained that day laborers who are cited for violating City ordinances may have their fingerprints taken if they are not able to provide sufficient identification of who they are. He stated that he has one full-time officer assigned to enforcing City codes as they pertain to day laborers. He noted that one of the complaints they here is that people have their cars "swarmed" by day laborers, which he said involves several day laborers rushing up to a car they believe is a prospective employer and sometimes even jumping in the car or truck without be asked. He added that drug use is a problem among day laborers and that violence among the group is often unreported for fear of being turned over to the Federal officials. Pal2:e 11 CITY COUNCIL MINUTES October 9,2007 7. ADMINISTRATIVE REPORTS (Continued) Councilmember Smith stated that she supports the recommendation to keep the Resource Center open with the requirement of two IDs and the monitoring of those hiring laborers. She stated that the continued hiring of laborers is what encourages them to congregate and there needs to be a strong emphasis to cite those who continue to hire especially since the employers are getting cheap labor and offer no benefits to the worker. She noted the large number of laborers being employed by homeowners, and if the community wants the congregating to stop, it must stop hiring the laborers. Mayor pro tern Dumitru expressed frustration about how congregating and solicitation of workers can be protected under federal law; and stated that if the only way to help solve the day laborer issue is for the Resource Center to remain open, then he would support it, but will look to close if it fails. Mr. DeBerry explained that to hire an illegal worker is a violation of federal law - a civil penalty and that speech which involves the solicitation of another to violate the law does not enjoy significant constitutional protection. However, studies have shown that approximately 15-20% of the workers are legal and hiring them does not violate law, although during the course of the employment relationship other laws are likely to be violated, but the solicitation itself, in those cases, is not a violation. The mere fact a day laborer is soliciting for work, does not mean the law is being violated, absent more facts. He further explained that law enforcement must have a reasonable suspicion that criminal activity is occurring in order to stop and detain someone, even for a brief period. He stated that if property is posted prohibiting solicitation and day laborers are on the property for that purpose it is a violation of the Orange Municipal Code, and is cause for law enforcement to cite or arrest the offender. Mayor Cavecche stated her support for requiring private property owners to obtain a CUP with strict regulations governing solicitation of work on their property. Councilmember Murphy stated his support for the immediate modification of the regulations at the Resource Center. He stated that he would be closely examining the cost to the taxpayers for the Resource Center services. Councilmember Bilodeau stated his support to require a CUP for private property owners who desire to allow day laborer solicitation on their property. He suggested that there not be any fees charged the employers who come to the Resource Center at this time. Councilmember Smith commented on the connection of boarding house issues and the day laborer issue. Pal2:e 12 CITY COUNCIL MINUTES October 9,2007 7. ADMINISTRATIVE REPORTS (Continued) In response to a question, Mr. DeBerry stated it was his belief that the City could not refuse to issue a day laborer permit on the basis the person was not a City resident. He stated that the recently enacted boarding house ordinance has become an effective tool for enforcing overcrowded residential conditions and is having an impact. He further stated the need to have a picture on the permit issued to a day laborer and a catalog number that can be verified by law enforcement if the City Council ultimately determines to implement the permit scheme. Council discussed whether or not to keep the Resource Center closed until it can comply with federal law and require identification. City Manager John Sibley stated that staff would be meeting immediately and would ensure the Resource Center was open the next day with the identification requirement. MOTION - Murphy SECOND - Dumitru AYES - Smith, Murphy, Cavecche, Dumitru, Bilodeau Moved to keep the Resource Center open and direct staff to begin requiring two forms of identification and issuance of the Federal I-9 form at the Resource Center pursuant to the Immigration and Nationality Act - effectively immediately. Mayor Cavecche asked that the Police staff return with suggestions on cooperating with ICE and the Border Patrol. She also stated her support for requiring private property owners to obtain CUPs to allow solicitation on their property. Councilmember Smith suggested engagement of local churches and non-profit community groups to publicize the Resource Center. Council discussed issues that need to be addressed in a proposed Ordinance and directed the City Attorney to return to the City Council and/or the Planning Commission with a proposed ordinance regulating day laborer solicitation as well as a plan for implementation that may include, among other things - publicizing the Resource Center through various means, involvement in community groups to get the word out to day laborers to use the Resource Center, publicizing the new regulations, enforcement and publicizing enforcement, reversing the requirements for solicitation on private property, a permit program, addressing problems with individuals who hire illegal laborers, liability issues and crime issues. The City Attorney stated that the proposed Ordinance would come back to the Council at the November 2ih Council meeting and draft zoning ordinances could be reviewed and direction given as to whether to present the drafts to the Planning Commission.. Pal2:e 13 CITY COUNCIL MINUTES October 9,2007 8. REPORTS FROM CITY MANAGER - None. 9. LEGAL AFFAIRS 9.1 ORDINANCE NO. 17-07 (FIRST READING) (A2500.0 Ord-17-07 Sidewalks An Ordinance of the City Council of the City of Orange Repealing Chapter 12.64 of the Orange Municipal Code and Adding a New Chapter 12.64 Relating to Encroachments in the Public Right-of- Ways. MOTION - Smith SECOND - Murphy AYES - Smith, Murphy, Cavecche, Dumitru, Bilodeau Moved that ordinance No. 17-07 be read by title only and same was set for second reading by the preceding vote. 10. RECESS TO THE MEETING OF THE ORANGE REDEVELOPMENT AGENCY 11. RECESS TO CLOSED SESSION NOTE: The City Council did not recess. The City Council will recess to Closed Session for the following purpose: a. To consider and take possible action upon such other matters as are orally announced by the City Attorney, City Manager, or City Council prior to such recess unless the motion to recess indicates any of the matters will not be considered in Closed Session. 12. ADJOURNMENT - The City Council Adjourned at 7:05 p.m. There was no 7:00 p.m. Session for the October 9, 2007 Council meeting. The next Regular Council meeting is scheduled for October 23,2007. Declaration of City Clerk, Mary E. Murphy, declaring posting of City Council agenda of a regular meeting of October 9, 2007 at Orange Civic Center kiosk, Police facility at 1107 North Batavia, and the Main Public Library at 407 E. Chapman; all of said locations being in the City of Orange and freely accessible to members of the public at least 72 hours before commencement of said regular meeting. L (it Pal2:e 14