CITY OF BRENTWOOD
CITY COUNCIL MEETING MINUTES

JANUARY 25, 2005
COUNCIL CHAMBER

CALL TO ORDER CITY COUNCIL (5:15 PM)
Roll Call
Present: Beckstrand; Gutierrez; Petrovich; Swisher; Taylor

ADJOURN TO CLOSED SESSION (5:16 PM) held at 150 City Park Way, City hall Conference Room

Closed Session pursuant to Government Code 54956.8:
CONFERENCE WITH REAL PROPERTY NEGOTIATORS
Property: Two properties generally located at the southeast corner of
Brentwood Boulevard and Sunset Road. Assessor’s parcel numbers 016-010-016
And 016-010-015.
City Negotiator: Howard Sword
Under negotiation: Price and Terms

RECONVENE IN OPEN SESSION AND RECESS TO WORKSHOP IN COUNCIL CHAMBER (5:50 PM)

WORKSHOP (6:00 PM)
Review and discuss the East Contra Costa County Habitat Conservation Plan/Natural Community Conservation Plan. (H. Sword/W. Rhodes)

RECONVENE (06:59 PM)
Roll Call
Present: Beckstrand; Gutierrez; Petrovich; Swisher; Taylor

REPORT ON CLOSED SESSION

Mayor Swisher announced that there was no report from Closed Session.

CITIZEN COMMENTS (07:10 PM)

Bill Putman announced that Delta Community Services would hold an Italian dinner fundraiser on January 29, 2005 from 4:30 to 8:00 and tickets were $7.50 per person and could be purchased at various locations.

PRESENTATION (07:03 PM)

A. Recognition of Mary Jane Barnes as Poet Laureate Emeritus. (B. Swisher)

Mayor Swisher informed that Poet Laureate, Mary Jane Barnes, had been in the City since 1950 and her poetry published many times in many countries and she was a Nobel Prize candidate. She had helped encourage poetry in the City and was stepping down to write another book and more poetry. Mayor Swisher thanked her for her work on behalf of the City and presented her a certificate of appreciation.

Poet Laureate Barnes read one of her poems.

Mayor Swisher announced that Bill Bristow was appointed alternate to the Local Agency Formation Commission, which would benefit the City and East County.

AGENDA REVIEW (07:10 PM)

Item 13 Phase I of Surface Water Treatment Facility and denial of bid protest submitted by All Bay Electric.

Item 17 Adds Exhibit A as listed in staff report and Resolution.

Motion: Approve Agenda Review.
Moved by Petrovich, seconded by Beckstrand.
Vote: Motion carried 5-0.
Yes: Beckstrand; Gutierrez; Petrovich; Swisher; Taylor

CONSENT CALENDAR (07:12 PM)

1. Approved Minutes of January 11, 2005. (K. Diaz)

2. Adopted Resolution No. 2005-15 approving the revised Joint Powers Agreement pertaining to insurance coverage as approved by the Contra Costa County Municipal Risk Management Insurance Authority’s Board of Directors. (K. Diaz)

3. Adopted Resolution No. 2005-16 approving and authorizing the execution of a Participation and Loan Agreement by and between the Redevelopment Agency of the City of Brentwood, City of Brentwood and Eden Housing, Inc., and approving a loan in the amount of $900,000 to assist in the construction of Brentwood Senior Commons, an 80-unit senior apartment project located on Oak Street. (H. Sword/E. Bonneville)

4. Adopted Resolution No. 2005-17 approving changes and modifications to CIFP 2000-1, approving a second amended boundary map and an amended Engineer’s Report, including an amended Assessment Diagram. (B. Grewal/D. Galey)

5. Adopted Resolution No. 2005-18 authorizing the purchase of a new John Deere backhoe from Nortrax West and authorizing the City Manager to execute a purchase order not to exceed $77,800. (P. Zolfarelli/C. Ehlers)

6. Adopted Resolution No. 2005-19 authorizing the purchase of a new Solid Waste automated collection truck from Golden Gate Truck Center and authorizing the City Manager to execute a purchase agreement not to exceed $219,768.40. (P. Zolfarelli/J. Carlson)

7. Adopted Resolution No. 2005-20 authorizing staff to move forward with the schematic design effort for the Solid Waste Transfer Station Project, CIP Project No. 542-5402 and authorize the City Manager to execute a contract with Carlton Engineering, Inc., not to exceed $61,457. (P. Zolfarelli/J. Carlson/M. Huber)

8. Adopted Resolution No. 2005-21 memorializing the granting of the appeal of Conditional Use Permit No. 04-14 for the John Muir/Mt. Diablo Health System campus master sign program. (H. Sword/E. Nolthenius)

9. Approved an Agreement with Brentwood Ready Mix and authorize the City Manager to execute said Agreement concerning Water Provision to Parcel No. 018-200-017 - 2170 Elkins Way. (H. Sword/G. Rozenski)

10. Approved Youth Commission recommendation to recognize a vacancy for the position of an Adult Advisor. (C. Bronzan/T. Burt)

11. PULLED FOR DISCUSSION - Approve the appointments of Chris Becnel, Arthur Londos and Russell Pitkin to the Planning Commission for two-year terms ending December 31, 2006. (B. Swisher)

12. Approved the appointment of Jeff Altman to the Brentwood Advisory Neighborhood Committee (BANC) to a three-year term commencing January 25, 2005 and ending January 31, 2008. (Mayor Swisher)

13. PULLED FOR DISCUSSION - Adopt a Resolution approving the contract documents and award the construction contract to Tidelands Construction Company for the Surface Water Treatment Facility – Phase I, CIP Project No. 562-5629 and authorize the City Manager to execute the agreement in the amount of $7,858,130, plus a 5% contingency. (B. Grewal/P. Eldredge)

14. Accepted report on status of purchase agreements at Sunset Industrial Complex and direct staff to extend the closing date for one escrow by 75. (G. Rozenski/H. Sword)

15. PULLED FOR DISCUSSION - Waive second reading and adopt Ordinance No. 794 approving the Rezone (RZ 04-03) of a 4.84-acre site from R-1-10 to PD-35 and establishing development standards for said site, located at the southeast corner of Apricot Way and Montclair Place. (H. Sword/E. Nolthenius)

16. PULLED FOR DISCUSSION - Waive second reading and adopt Ordinance No. 795 approving a Rezone (RZ 04-13) to amend Subarea “G” of PD-35 for a duet on Parcels A and B of Minor Subdivision No. 357-04, located at the northeast corner of Helena Way and Rampart Way. (H. Sword/E. Nolthenius)

16A. Adopted Resolution No. 2005-22 authorizing the City Manager to execute purchase orders with The Hon Company, in the amount of $77,160.02 and AllSteel, Inc. in the amount of $118,375.71 (c/o Corporate Interior Systems) for new furniture for the New Police Station (inclusive of the City Emergency Operations Center), CIP Project No. 337-3142, in the total amount of $195,535.73, plus a 10% contingency. (K. Chew/K. King/M. Huber)

CONSENT CALENDAR ACTIONS (07:13 PM)

Motion: Approve Consent Calendar Items 1 – 10, 12, 14 and 16A as recommended.
Moved by Petrovich, seconded by Beckstrand.
Vote: Motion carried 5-0.
Yes: Beckstrand; Gutierrez; Petrovich; Swisher; Taylor

11. Approve the appointments of Chris Becnel, Arthur Londos and Russell Pitkin to the Planning Commission for two-year terms ending December 31, 2006. (B. Swisher)

Motion: Approve the appointment of Arthur Landos to the Planning Commission for a two-year term ending December 31, 2006.
Moved by Beckstrand, seconded by Petrovich.
Vote: Motion carried 4-0.
Yes: Beckstrand; Petrovich; Swisher; Taylor
Abstain: Gutierrez

Motion: Approve the appointment of Russell Pitkin to the Planning Commission for a two-year term ending December 31, 2006.
Moved by Beckstrand, seconded by Petrovich.
Vote: Motion carried 4-0.
Yes: Beckstrand; Petrovich; Swisher; Taylor
Abstain: Gutierrez

Motion: Approve the appointment of Chris Becnel to the Planning Commission for a two-year term ending December 31, 2006.
Moved by Swisher, no second.
Motion failed for lack of second and Mayor Swisher withdrew his motion.

Motion: Approve the appointment of Don Sterling to the Planning Commission for a two-year term ending December 31, 2006.
Moved by Swisher seconded by Beckstrand.
Vote: Motion carried 4-0.
Yes: Beckstrand; Petrovich; Swisher; Taylor
Abstain: Gutierrez

Council Member Gutierrez said she believed that the full Council should be involved in the application process and that she did not feel comfortable voting for candidates that she did not know.

Council Member Petrovich said it was the Mayor's appointment and agreed that all members should come before the full Council. He asked that a new process be put into place and that the Code be amended to allow the full Council to interview the candidates.

Mayor Swisher noted that the application process was the same for the boards and commissions, where the Mayor appointed with Council approval.

13. Adopt a Resolution approving the contract documents and award the construction contract to Tidelands Construction Company for the Surface Water Treatment Facility – Phase I, CIP Project No. 562-5629 and authorize the City Manager to execute the agreement in the amount of $7,858,130, plus a 5% contingency. (B. Grewal/P. Eldredge) (07:20 PM)

Assistant City Engineer, Paul Eldredge, said that the Resolution was modified to accommodate the bid protest received late last week from All Bay Electrical Contractors.

John Valdez, All Bay Electric, explained he had written the protest and that in the specifications for switchgear, Cuttler Hammer was written in as the only provider, which All Bay did not protest. There were five pieces of electrical equipment that listed manufacturers and the way that the specification was written for the one piece of equipment, Cuttler Hammer did not break out their prices for the other pieces of equipment, which pushed the manufacturers to the wayside and time was wasted. He said he did not feel it was fair and it was supposed to be evaluated on a fair and honest price and the manufacturers had been listed in order to obtain competitive prices, which was received on one item and pushed all other major items away and was approximately $1 million of equipment.

Mayor Swisher asked if the City was obligated to use multiple vendors on every product listed and City Attorney, Dennis Beougher, responded that as stated in the Resolution, there was a public contract that the City could provide for a specific trade name for a product providing it was already related to existing equipment. As stated by the City Engineer, in the City's plans and specifications, the switchgear was only for one particular item and had to match the existing switchgear at the Contra Costa water plant and the City was matching one piece of equipment. Cuttler Hammer packaged all of it and said that if one wanted to purchase one piece, all six pieces would need to be purchased. That was not the City’s decision; it was a private decision. The City provided a lump sum for all electrical work and there was no costing out of various line items with the components of the electrical equipment.

Mayor Swisher added that there was no unfair bid practice.

City Attorney Beougher said that one of the provisions in the contract said that if there was an issue with the contract documents, it should be provided within 10 days to the City prior to the bid opening. If it was not protested at that point, the protest rights had been waived.

Mr. Valdez said he disagreed and referred to the specifications noting that any protest should be received before 5:00 p.m. of the fifth business day following the bid opening and he was within that time. He said that there was no way that he would be able to know ahead of time.

City Attorney Beougher said there was a difference between issues as to the contract documents, which Mr. Valdez had raised as part of the appeal and those that relate to a bid protest.
Mr. Valdez said he believed that the one piece of equipment should have had a special line item just for that piece of equipment and this would have been avoided since Cuttler Hammer would have had to break out their price on the one piece of equipment and the City would have received competitive prices on the other equipment.

In response to Council Member Taylor, Assistant City Engineer Eldredge stated said that the City went with the lowest responsible, responsive bidder. The line item in the bid compared to all of the electrical work was a small piece of the bid and was one piece of equipment that was sole sourced. He said that there was a competitive bid process and the City had received seven bids. He said he believed it was speculation that money would have been saved had the City gone with other suppliers, other than Cuttler Hammer. He had not heard anything from any other suppliers or contractors.

Mr. Valdez said that he had spoken to several other contractors, electrical and general, and they all had the same practice happen to them and not just All Bay.

Mayor Swisher said that this was speculation at this time and although the City understood what the complaint was and it was not City responsibility to know whether a vendor had come in for pricing 20 minutes before bid time and it went back to the contractors that were bidding.

Mr. Valdez said that there was not a true evaluation of the piece of equipment and asked if someone had the cost of the switchgear.

Assistant City Engineer Eldredge responded that he had an Engineer’s estimate and did not have the exact price from Cuttler Hammer and the Engineer’s estimate did not break down that particular piece of equipment and it was part of the lump sum for electrical contract work.

Mr. Valdez stated that he had no way of knowing this until 20 minutes prior to the bid and the City would have received a more competitive bid.

Motion: Approve closing the hearing on the protest.
Moved by Swisher seconded by Beckstrand.
Vote: Motion carried 5-0.
Yes: Beckstrand; Gutierrez; Petrovich; Swisher; Taylor

Motion: Approve waiving full reading and adopting Resolution No. 2005-23 as recommended.
Moved by Swisher, seconded by Gutierrez.
Vote: Motion carried 4-0.
Yes: Beckstrand; Gutierrez; Swisher; Taylor
Abstain: Petrovich

15. Waive second reading and adopt Ordinance No. 794 approving the Rezone (RZ 04-03) of a 4.84-acre site from R-1-10 to PD-35 and establishing development standards for said site, located at the southeast corner of Apricot Way and Montclair Place. (H. Sword/E. Nolthenius)

Motion: Approve waiving second reading and adopting Ordinance No. 794 as recommended.
Moved by Gutierrez, seconded by Taylor.
Vote: Motion carried 4-0.
Yes: Beckstrand; Gutierrez; Petrovich; Taylor
Abstain: Swisher

16. Waive second reading and adopt Ordinance No. 795 approving a Rezone (RZ 04-13) to amend Subarea “G” of PD-35 for a duet on Parcels A and B of Minor Subdivision No. 357-04, located at the northeast corner of Helena Way and Rampart Way. (H. Sword/E. Nolthenius) (07:37 PM)

Motion: Approve waiving second reading and adopting Ordinance No. 795 as recommended.
Moved by Gutierrez, seconded by Taylor.
Vote: Motion carried 4-0.
Yes: Beckstrand; Gutierrez; Petrovich; Taylor
Abstain: Swisher

PUBLIC HEARINGS (07:37 PM)

17. Consideration of a Resolution amending the 2004/05 Master Fee Schedule/Cost Allocation Plan adopted by Resolution No. 2004-222 by revising the In-lieu fees associated with the Affordable Housing Program. (E. Bonneville/ H. Sword)

Housing Manager, Ellen Bonneville, explained that as part of the economic analysis for the Housing Ordinance, staff and consultants had prepared a calculation for the ownership housing in-lieu fee. The analysis was based on Homebuilders Association data, including cost of land improvements, regulatory compliance, administrative costs and very low and low income affordability. The analysis was presented at meetings with developers and affordable housing advocates and was included as part of the public hearing conducted for the Ordinance on December 14, 2004. The new in-lieu fees would apply to only those developments where the developer requests to pay a fee in lieu of constructing the required affordable units. The proposed in lieu fee for a very low income unit, not constructed, was $235,000 per unit and the current fee for that unit was $106,044. The new fee proposed for a low income unit, not constructed, was $176,000 and the current fee was $75,179. The Council would receive a report within 180 days after the close of each fiscal year identifying the balance of fees in the Housing trust fund and the Council would have the ability to amend in lieu fees to reflect inflation and cost of construction in the region or area. If adopted, the new fees would take affect 60 days from the date of adoption of the Resolution.

Mayor Swisher opened the public hearing.

Motion: Approve closing the public hearing.
Moved by Swisher, seconded by Gutierrez.
Vote: Motion carried 5-0.
Yes: Beckstrand; Gutierrez; Petrovich; Swisher; Taylor

Motion: Approve waiving full reading and adopting Resolution No. 2005-24 as recommended.
Moved by Beckstrand, seconded by Gutierrez
Vote: Motion carried 5-0.
Yes: Beckstrand; Gutierrez; Petrovich; Swisher; Taylor

18. CONTINUED TO FEBRUARY 8, 2005 - Determine whether a material breach of Cable Television Franchise has occurred – assignment of franchise without City’s approval and consideration of a Resolution renewing the Franchise Agreement with Comcast Cable Communications, Inc., pursuant to 5.24.090 of the Municipal Code to provide cable television services.

OLD BUSINESS (07:40 PM)

19. CONTINUED TO FEBRUARY 8, 2005 - Consideration of a Resolution accepting a resignation and declaration of vacancy; procedures governing a vacancy on the City Council and taking any related action to fill the vacancy. (D. Beougher)

20. CONTINUED TO FEBRUARY 8, 2005 - Adopt a Resolution accepting the first annual RGMP allocation recommendation. (P. Ehler/H. Sword/B. Grewal)

NEW BUSINESS

21. City Council Member appointments to various Committees and Commissions. (B. Swisher)

Motion: Approve closing the public hearing.
Moved by Petrovich, seconded by Gutierrez.
Vote: Motion carried 5-0.
Yes: Beckstrand; Gutierrez; Petrovich; Swisher; Taylor

INFORMATIONAL REPORTS FROM STAFF - No action required (07:40 PM)

22. Informational Report on Subdivision No. 8894, Coppergate Townhomes by DR Horton Western Pacific, located at the southwest corner of Sand Creek Road and Business Center Drive. (K. Diaz)

REQUESTS FOR FUTURE AGENDA ITEMS (07:41 PM)

Council Member Taylor asked to look at the sign Ordinance.

Community Development Director, Howard Sword, commented that he agreed that the sign Ordinance needed to be revisited and clarified and addressed by Planning Commission and Council.

INFORMATIONAL REPORTS FROM COUNCIL MEMBERS (07:42 PM)

Council Member Beckstrand informed that the Bypass Authority and Trans Plan had been working on an accelerated program for design specifications and funding for Segments 1 and 3 of the Bypass to be open in 2007. In order place Segments 1 and 3 out to bid in the time frame to assure the completion date, the Bypass Authority may award a construction contract without all the funds available and they were checking on legalities. Some Authority Members were apprehensive about the funding and even though the very conservative projections for development fees showed the Authority would be fine since the payments were incremental during the construction process. The Authority wanted to be sure that they were timely and responsible and had been looking at different funding mechanisms. There had been developers that had come forward in helping the Bypass Authority bond their projects and properties in order to speed this up to the tune of an extra $10 million. Bypass Authority would consider at their meeting of February 10, 2005 whether or not to do commercial paper or more conventional bank loan for the project. She asked if Council would like to discuss this at the next Council meeting since it was a joint powers agreement.

INFORMATIONAL REPORTS FROM COUNCIL MEMBERS (07:44 PM)

Council Member Petrovich asked that a discussion for the Planning Commission appointment procedure be agendized in the future.

Council Member Gutierrez said that Mayor Swisher was correct and that the Council followed a certain procedure where the Mayor appointed and Council approved and she would like the process clarified.

City Manager Landeros said that the appointment procedure may be one of the items considered at the goal setting workshop.

ADJOURNMENT (07:46 PM)

Motion: Approve adjournment.
Moved by Swisher, seconded by Petrovich
Vote: Motion carried 5-0.
Yes: Beckstrand; Gutierrez; Petrovich; Swisher; Taylor

Respectfully Submitted,

Cynthia Garcia
Assistant City Clerk