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CC - 01-24-06• i MINUTES OF THE REGULAR MEETING ROSEMEAD CITY COUNCIL January 24, 2006 Mayor Imperial called the regular meeting of the Rosemead City Council to order at 8:08 pm in the Council Chambers of City Hall, at 8838 E. Valley Boulevard, Rosemead, California. Councilmember Tran led the Pledge to the Flag. Councilmember Clark delivered the Invocation. ROLL CALL OF OFFICERS: Present: Councilmembers Clark, Nunez, Tran, Mayor Pro Tern Taylor and Mayor Imperial Absent: None APPROVAL OF MINUTES: None 1. ORAL COMMUNICATIONS FROM THE AUDIENCE Charles Lyons, Rosemead resident, made a request on behalf of parents and students that walk to Encinitas and Muscatel schools. Mr. Lyons asked that a full cross walk be installed by the schools to ensure pedestrian safety. He submitted signatures and a letter from parents to Ken Rukavina, City Engineer. Councilmember Clark recommended that Mr. Lyons also request a second crossing guard at those Intersections, as a crosswalk sometimes gives people a false sense of security. Brian Lewin, residing at 9442 E. Ralph Street, spoke in support of the recall election. He indicated petition circulation in four languages, would be done, if required. Nancy Wilson, residing at 8049 E. Emerson Place, expressed offense when Polly Low supporters came to her door to show her how to vote in the recall; she also inferred that some of the Councilmembers might have a conflict of interest regarding Wal-Mart as they have family members that work there. She asked both sides work with one another and play fair. Marlene Shinen, residing at 8447 Drayer Lane, South San Gabriel, spoke about Wal- Mart construction effects such as dust. She advocated that city officials should monitor construction efforts. Juan R. Nunez, residing at 2702 Del Mar, requested the City remove the benches from the bus stop that doesn't run anymore at Del Mar and Garvey. He also asked that CC MIN: 1-24-06 Page I of 12 • shopping carts from the 99 Cents Store at Del Mar and Gravelia be removed. Dolly Leong, residing at 8455 Mission Drive, asked the Council to defer Consent Calendar Item C. She indicated that she had not received notice the item would be on the agenda today and she needed time to prepare her documentation regarding the item. Councilmember Tran asked Mayor Imperial to defer the item; Mayor Imperial granted the request. Item description is below: CC-C REQUEST FOR PARKING RESTRICTION ADJACENT TO A FIRE HYDRANT BE REDUCED AT 7665 GRAVES AVENUE A property owner requested that the parking restriction adjacent to a fire hydrant in front of her property at 7665 Graves Avenue be reduced. The Traffic Commission deliberated this matter and the request was denied and referred to the City Council. Recommendation: It is recommended that the City Council concur with the Traffic Commission and deny the request to reduce the parking restriction adjacent to the fire hydrant in front of 7665 Graves Avenue. Councilmember Clark asked why Ms. Leong had not received the agenda notice and asked that City staff check the address on file for her. Linda Kilpatrick, residing at 4716 Walnut Grove, thanked the council for their responsiveness in paving Walnut Grove after her complaint last year and for repainting curb street numbers. She suggested that the City pass an ordinance against abandoned shopping carts. Assistant City Manager Don Wagner explained that the City has a contract with Shopping Cart Retrieval and most of the stores also contract with vendors that pick up shopping carts. For unmarked shopping carts, the City relies upon people calling those in to be picked up by City staff. Caroline Kunioka, residing at 8400 Wells Street, spoke against the new Wal-Mart and in support of the Recall Election. She felt the Council had not fully considered seismic impacts during EIR approval. Velia Navarro, residing at 2239 N. Angeles Avenue, expressed concerns for the safety of children due to an open gate at the Wal-Mart construction site. In addition, she asked how the council proposes to assist smaller stores in the community that might suffer as a result of the Wal-Mart opening. Ron Gay, residing at 4106 Encinitas Ave., discussed Mr. Stephen Ly's accusation that his mother did not know what she was signing when she signed the recall petition. Mr. Gay stated that Mrs. Ly was not forced or coerced into signing the petition and was given a hand out that was written in English, Spanish and Chinese to help explain the CC MIN: 1-24-06 Page 2 of 12 C 0 issues. According to accounts as expressed to Mr. Gay, Ms. Ly said that her son made the decisions in the family and canvassers left the literature with Ms. Ly. On their way off the property, Ms. Ly (as stated by Mr. Gay) then called out to the-three canvassers and stated she would sign the petition. Mr. Gay also discussed the work connection between Mike Lewis and City Manager Bill Crowe in Pete Schabarum's office. Faye Reynolds, residing at, 8979 Beatrice Place, expressed frustration regarding the lack of mainstream retail and grocery shopping opportunities for residents. Mayor Imperial outlined his efforts to try and get retailers to set up in Rosemead. 2. PUBLIC HEARINGS - None 3. LEGISLATIVE A. Resolution No. 2006-01 - Claims and Demands for payment of City expenditures in the amount of $827,428.71 numbered 51521 through 51577. Recommendation: Adopt Resolution No. 2006-01, for payment of City expenditures. Councilmember Tran made a motion, with a second by Councilmember Nunez to approve Resolution 2006-01 for payment of City expenditures in the amount of $827,428.71 numbered 51521 through 51577. Vote resulted: Yes: Clark, Imperial, Nunez, Taylor, Tran No: None Abstain: None Absent: None 4. CONSENT CALENDAR CC-A APPROVA L OF 2006-07 BUDGET CALENDAR Review the Budget Calendar for the Preparation of the Annual Budget for Fiscal Year 2006-07. The proposed budget study session is scheduled for Tuesday, June 6, 2006 at 6:00 p.m. Recommendation: It is recommended that the Rosemead City Council approve the 2006-07 Budget Calendar. CC-B ACCE PTANCE OF WORK FOR STREET IMPROVEMENTS ON SAN GABRIEL BOULEVARD The project has been completed in conformance with the approved plans and specifications and is ready for acceptance. CC MIN: 1-24-06 Page 3 of 12 • • Recommendation: Accept the project, authorize recordation of the Notice of Completion by the City Clerk, and authorize release of the retention payment 35 days after the date of the Notice of Completion. CC-D AUTHORIZATION TO ATTEND NATIONAL LEAGUE OF CITIES ANNUAL CONGRESSIONAL CITY CONFERENCE, WASHINGTON D.C. -MARCH 11-15, 2006 Authorization to attend Annual National League of Cities conference in Washington, DC, March 11-15, 2006. This conference provides the City Council with the opportunity to discuss issues at the federal government level. Recommendation: It is recommended that the City Council authorize the attendance of any Councilmember, City Manager and staff as assigned by the City Manager. CC-E REQUES T TO INSTALL PARKING RESTRICTIONS AT 2525 SAN GABRIEL BOULEVARD Staff received a request from a business owner at 2525 San Gabriel Boulevard to install time limit parking. The Traffic Commission recommended installing 40 feet of time limit parking (green curb) and 16 feet of red curb. Recommendation: It is recommended that the City Council approve the Traffic Commission recommendation to install green (20-minute time limit) and red curb in front of 2525 San Gabriel Boulevard. CC-F REQUEST TO INSTALL RED CURB AT DRIVEWAYS OF MUSCATEL MIDDLE SCHOOL ON LAWRENCE AVENUE Staff received a request from the Rosemead School District to install red curb on Lawrence Avenue adjacent to the easterly driveway to Muscatel Middle School. This was a recommendation of the Fire Marshall. The Traffic Commission recommended installing 15 feet of red curb on each side of the driveway. Recommendation: It is recommended that the City Council approve the Traffic Commission's recommendation to install red curb on Lawrence Avenue adjacent to the easterly driveway to Muscatel Middle School. CC-G REQUEST FOR SUPPLEMENTAL FUNDS FOR SPECIAL ELECTION CC MIN: I-24-06 Page 4 of 12 • 0 The office of the City Clerk has continued to spend certain funds for the Special Municipal Election, originally scheduled for Tuesday, February 7, 2006. Although a federal judge has granted a Temporary Restraining Order which halted the election, the City will have to continue to pay for temporary staff, the election consultants, Martin & Chapman and other miscellaneous expenses. We need authorization to do so and thus are requesting that $200,000 be appropriated at this time. Once all invoices pertaining to the election have been paid, we will prepare a report summarizing the costs and post a budget transfer for the total cost of the Special Municipal Election. Recommendation: It is recommended that the Rosemead City Council appropriate $200,000 from Unappropriated Reserves for the costs incurred for the Special Election. CC-H APPROVAL OF SPECIFICATIONS AND AUTHORIZATION TO SEEK BIDS FOR ASPHALT CONCRETE OVERLAY ON VARIOUS CITY STREETS This project provides for an asphalt concrete overlay on various streets throughout the City. Recommendation: Approve the specifications and authorize advertisement for bids by the City Clerk. Councilmember Nunez made a motion, with a second by Councilmember Tran to approve Consent Calendar items (with the exception of item CC-C, which was deferred at the request of resident Dolly Leong). Voted resulted: Yes: Clark, Imperial, Nunez, Taylor, Tran No: None Abstain: None Absent: None 5. MATTERS FOR DISCUSSION AND ACTION A. DISCUSSION OF THE FEASIBILITY OF CONSOLIDATING THE CITY OF ROSEMEAD'S GENERAL MUNICIPAL ELECTIONS HELD IN MARCH OF ODD NUMBERED YEARS ONTO THE LOS ANGELES COUNTY ELECTIONS CALENDAR HELD IN NOVEMBER OF ODD NUMBERED YEARS Councilmember Tran has requested that this item be placed on the Agenda for discussion purposes. CC MIN: 1-24-06 Page 5 of 12 • C Councilmember Tran outlined the reasons he felt the council should discuss consolidation: it will save time, money and staff. Other cities such as South El Monte and West Covina have gone to this format. Councilmember Nunez discussed some of the pros and cons of consolidation; he indicated that inconsistencies existed on the list distributed by the City Manager. City Clerk Nina Castruita indicated a thorough analysis would have to be done; she reported some cities that have recently consolidated have decided to switch back, citing increased costs and delays in receiving final results. Election Consultant Linda Hudson reported the cities of Maywood and Industry recently switched back to city elections after consolidation. Councilmember Nunez requested the City Clerk compile a historical report of cities that have consolidated with the county and any that have switched back for the past 6 - 8 years to make a fair comparison. Mayor Pro Tern Taylor made a motion to defer the item for future discussion until further information is obtained. Councilmember Nunez requested a timeline for future action be put in place. Mayor Pro Tern amended his motion, with a second by Mayor Imperial to defer the consolidation discussion until after the next election. Vote resulted: Yes: Clark, Imperial, Taylor No: Nunez, Tran Abstain: None Absent: None Councilmember Clark stated for the record she voted to defer the item because she was unsure why Councilmember Tran and Councilmember Nunez wanted to extend the terms for people they were trying to recall. 6. STATUS REPORTS - None 7. MATTERS FROM OFFICIALS - None 8. ORAL COMMUNICATIONS FROM THE AUDIENCE Larry Bevington, residing at 8372 Rush, requested for the record, that the City Council or City Clerk ask for a rehearing of the Imperial vs. Castruita case. Mr. Bevington reported that many states in the gm Circuit have asked for reconsideration of Padilla vs. Lever, the basis for the current litigation. Mr. Bevington also indicated SOC's desire to CC MIN: 1-24-06 Page 6 of 12 be a defendant in the lawsuit and was disappointed when he was told this would not be possible. City Attorney Peter Wallin interjected that the judge did indicate in his decision that SOC can come in anytime as an intervener. Mr. Bevington responded he would review the decision and consult his lawyers to join the suit. Councilmember Clark asked if SOC also had the right to file an amicus brief with the 10- page court case (Padilla vs. Lever) given to the council. City Attorney Wallin responded yes and indicated that many parties have requested the case be reheard and some have already filed amicus briefs. Jean Hall, residing on Muscatel in Rosemead, commended the Mayor on his lawsuit against the recall election. Ms. Hall addressed Councilmember Tran and Councilmember Nunez and felt their support of the costly recall effort was irresponsible. Her comments were based a survey she referenced which indicates residents support the Wal-Mart at a 2 to 1 ratio. She advocated both sides put aside their differences and work together. Steven Ly, residing at 3040 Rosemead Place, disputed Ron Gay's account of how his Mom signed the recall petition. Mrs. Ly's account was submitted in writing for the court case. He reiterated the benefits Wal-Mart will bring to the City. David Perea, residing at xxxxx, gave his account of how Mrs. Ly's signature was obtained for the recall election. Mr. Perea, along with his wife and an interpreter approached Mrs. Ly regarding the recall petition. He indicated that the account given by Mr. Gay earlier in the evening was correct. John C. Davidson, residing at 7542 Melrose Avenue, spoke against the recall; in addition he advocated that speakers and Councilmembers refrain from personal attacks and respect each other. Todd Kunioka, residing at 8400 Wells Street, spoke in support of the recall. He addressed questions and comments made earlier in the evening. He discussed: the open letter he posted on the SOC website, child safety by the new Wal-Mart, the lawsuit filed by Mayor Imperial, the Voting Rights Act and the Department of Justice lawsuit. In addition, he mentioned that Mrs. Ly, the proponent of the lawsuit filled out a PRIDE postcard, asking to be removed from the recall petition. Viet Le, residing at 1615 Charlotte Avenue, spoke in support of the recall and against the construction of Wal-Mart. Mr. Le indicated him and his high school peers at Rosemead High School, also speak about the Wal-Mart. He encouraged parents to ask their children about views toward the issue. CC MIN' 1-24-06 Page 7 of 12 Jim Flournoy, residing at 8655 Landisview, discussed union support of SOC. Upon review of documents from the City Clerk's office, Mr. Flournoy reported that in the last 6 months, SOC and Polly Low did not receive any union funds, whereas PRIDE received $40,000 from Wal-Mart and $1,400 from Rosemead citizens. Mr. Flournoy also expressed support for the rehearing of Imperial vs. Castruita. In addition, he spoke about mitigation measures and CC & R's that were not being followed. Specifically he mentioned that certain equipment being used is not certified, truck traffic has been seen on residential streets, lack of dust control, and lack of on-site inspectors from the City. Councilmember Clark was outraged that dust-generating activities were allowed to happen on a windy day. She asked staff investigate why the violations were taking place and help monitor activities. City Attorney Peter Wallin then announced that the council was about to go into closed session to discuss the lawsuits referenced below. He announced Mr. Imperial would not be involved in the discussion regarding Imperial vs. Castruita. Juan Nunez, residing at 2702 Del Mar, asked why the current City Clerk was involved in the lawsuit, even though it was the previous City Clerk that certified the petitions. Mr. Wallin explained that Ms. Castruita was sued in her official capacity (not personally) as the person in charge of the election. Because the proponents of the lawsuit were seeking to enjoin the election they named her on the lawsuit. Mr. Nunez following up with his previous discussion topic, also referenced a state ordinance that identifies shopping carts as private property and makes removal from shopping centers against the law. City staff asked Mr. Nunez to call if he sees shopping carts out in the neighborhood and someone will be called out to remove it. Peggy Baumann, residing at 9305 Scenic Drive, South San Gabriel spoke against the Wal-Mart and stated that the Edison property sold to Wal-Mart was not sold to the highest bidder (a home developer). She indicated the sale was influenced by the City of Rosemead. The area around the Wal-Mart site is primarily residential and she would like to keep it that way. The council then went into closed session and returned at 10:35. 9. CLOSED SESSION CONFERENCE WITH LEGAL COUNSEL - EXISTING LITIGATION - GOVERNMENT CODE 54956.9(a) Name of Case: Jay Imperial, et al v. Nina Castruita, et al Name of Case: Garvey School District and Save our Community v. City of Rosemead CC MIN: 1-24-06 Page 8 of 12 • 0 City Attorney Wallin reiterated that SOC made a request to the City Council that the City make a motion for reconsideration of Imperial v. Castruita. He asked if there was a motion to take that action. A motion was made by Councilmember Tran with a second by Councilmember Nunez to reconsider Imperial v. Castruita. Councilmember Clark felt that the City should not spend additional funds for this effort, as it would delay the process. She recommended SOC file an amicus brief regarding the case. Councilmember Clark referenced a brief filed by the Attorney for the Clerk from Orange County involved in Padilla vs. Lever (a case with similar circumstances involving a recall that went before a three-judge panel of the 9th Circuit). Requests have been made to rehear Padilla vs. Lever to correct some of the allegations and to determine whether the ruling should be retroactive; in addition, a request has been made to hear that case en banc (before the entire 9th Circuit panel). The brief filed in December cites the City of Rosemead's decision to cancel the recall election in December and urges the 9th Circuit to clarify the ruling as to whether it is retroactive to prevent abusive use of the ruling. Councilmember Clark then summarized her point; some of the arguments made by SOC have already been presented to the 9th Circuit through the referenced brief. She felt joining the ranks of those seeking clarification on Padilla v. Lever from the 9th Circuit would be more effective for SOC than involving the City of Rosemead. Councilmember Clark indicated this was the main reason she would not support a motion to rehear Imperial v. Castruita. Councilmember Tran interjected that the City has a responsibility to protect the best interest of the residents; 4,200 people signed the recall petition. He reminded the council that the resolution adopted in December, directed the City Clerk to retain legal counsel to seek declaratory relief and clarification regarding Imperial v. Castruita. Councilmember Tran reminded the council that the ruling passed was a preliminary injunction, not a final ruling; as such the City Clerk in her capacity, can seek action on behalf of resident proponents. Councilmember Tran stated responsibility to the residents, the previous Resolution passed in December and his distrust of the City's legal counsel as reasons he would support a motion to rehear the case. Councilmember Nunez felt that the City Clerk in her official capacity, qualified the election and thus has an obligation to protect the process and the citizens. City Attorney Wallin indicated that the nature of the motion was to instruct the City Clerk to make a motion for reconsideration of the case on behalf of the voters. CC MIN: 1-24-06 Page 9 of 12 • 0 Mayor Pro Tern Taylor commented he was opposed to the rehearing motion because of the ruling in Padilla vs. Lever (with almost identical circumstances). He addition, he reasoned the judge ordered a preliminary injunction for a reason and he felt Councilmember Imperial and Mrs. Ly had a valid case. Mayor Pro Tern Taylor called for the question. Councilmember Tran clarified the motion to authorize the City Clerk to seek reconsideration of Imperial V. Castruita. Vote-resulted: Yes: Nunez, Tran No: Clark, Taylor Abstain: Imperial Absent: None City Attorney Wallin outlined another motion that was discussed to make a motion to instruct the City Clerk to appeal the decision that was made. Councilmember Nunez asked if the motion could be amended to specify the appeal is made in an expedited manner. City Attorney Wallin indicated this could be done. Councilmember Clark commented the appeal process would involve additional tax payer money to pay for litigation. Councilmember Nunez said he would vote to support democracy. Councilmember Tran made an amendment to his motion, with a second by Councilmember Nunez to instruct the City Clerk to appeal the decision in an expedited manner. Vote resulted: Yes: Nunez, Tran No: Clark, Taylor Abstain: Imperial Absent: None Councilmember Tran made a motion to instruct the City Clerk to pursue a cross complaint as authorized by a Resolution passed in December. Mayor Pro Tern Taylor asked what the disadvantages would be to pursuing cross complaint. CC MIN: 1-24-06 Page 10 or 12 0 • City Attorney Wallin responded this would result in additional expenditure of taxpayer money. Councilmember Tran argued that the final judgment on this matter has not been received and the City Clerk needs to protect resident interests and the process. Mayor Pro Tern Taylor reminded the Council that the court case is scheduled for March 13. Councilmember Tran made a motion, with a second by Councilmember Nunez to instruct the City Clerk to continue with her legal counsel and request a cross complainant on this lawsuit. Vote resulted: Yes: Nunez, Tran No: Clark, Taylor Abstain: Imperial Absent: None City Attorney Wallin brought forth a settlement proposed by Mr. Imperial's lawyer to accept the preliminary injunction as a permanent injunction and provide payment of $20,000 to Mr. Imperial's attorney for fees. Councilmember Clark asked for clarification on why the City would be liable for Attorney costs. City Attorney Wallin responded that the Voting Rights Act provides that a successful litigant in a Voting Rights Act case is entitled to recover their Attorney fees. If the matter is not settled, the City will continue to incur fees. Councilmember Clark asked Mr. Wallin to clarify what happens on March 13 and how what happens on that date is different from a rehearing. City Attorney Wallin responded that March 13 is a trial scheduling conference and at that time, the issues are presented to the judge and a trial date is set for approximately two months later. A rehearing would be an attack on the preliminary injunction, which maintains things as they are (status quo) until a final trial is had. At a final trial, all the evidence goes in and the judge then decides if a permanent injunction is warranted. Councilmember Nunez inquired if payment would be required now. City Attorney Wallin clarified that this is just a proposed settlement and the City is under no obligation to enter into a settlement; the offer can be accepted or rejected. CC MIN: 1-24-06 Page I I of 12 A M Councilmember Tran asked if there might be a chance that the judge might change his mind on the final judgment. City Attorney Wallin responded that yes, it might be possible, especially if a rehearing is granted for the Padilla v. Lever case. Councilmember Nunez clarified that if and when Padilla v. Lever is appealed or the decision is made to make the ruling retroactive, then that would be the time to determine whether or not to settle, not now. City Attorney Wallin clarified he was not making a recommendation one way or another; his legal obligation is to bring forward the settlement proposal and the Council has to make a decision. Councilmember Tran felt it would be premature to settle at this time City Attorney Wallin asked if there was a motion to approve the settlement request from Mr. Imperial's attorney. Mayor Pro Tern Taylor asked if the City would be liable for additional attorney costs if the City takes no action on the matter. Councilmember Nunez interjected the City might not be liable for any of Mr. Imperial's costs, if the case is not successful. City Attorney Wallin responded that yes, the City would continue to incur attorney fees, if action is not taken. Councilmember Clark stated that despite the additional attorney fees, the Council should let the case go forward, as the March court date is coming up. Mayor Pro Tem Taylor responded that sounded reasonable and indicated the appropriate course would be not to take any action at this time. 10. ADJOURNMENT Being no further action to be taken, Councilmember Tran moved to adjourn the meeting at 11:04 pm. The.next regular meeting will be held on February 14, 2006, at 8:00 p.m. Respectfully submitted: A 11 1~, _ City Clerk CC MIN: I-24-06 Page 12 of 12 STATE OF CALIFORNIA ) COUNTY OF LOS ANGELES ) SS. CITY OF ROSEMEAD ) I, Nina Castruita, City Clerk of the City of Rosemead, do hereby certify that the minutes from January 24, 2006 were duly and regularly approved and adopted by the Rosemead City Council on the 10th of October 2006, by the following vote to wit: Yes: CLARK, IMPERIAL, NUNEZ, TAYLOR, TRAN No: NONE Absent: NONE Abstain: NONE iYlrt C~ Nina Castruita City Clerk