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CSC Minutes July 11, 2005

PARKS AND RECREATION COMMISSION
MEETING MINUTES
City Council Chamber
Monday, July 11, 2005
6:30 p.m.

CALL TO ORDER:

Vice-Chair Han called the meeting to order at 6:31 p.m.

FLAG SALUTE:

Commissioner Miller led the flag salute.

ROLL CALL:

Present :

Kathleen Baier-Dalton, Virginia Han, Pamela Keller, George Miller, Craig Russell, Nancy Spencer

Absent :

Neil Swanson

Staff :

Parks and Recreation Director Ron Molendyk; Parks and Recreation Managers Grace Carroll-Miranda, Alice Loya, Judy Peterson, Pat Trotter, Dannielle Mauk; Acting Landscape Superintendent Dennis Quinlivan; Risk Manager Gretchen Beatty; Krista Gee, City Attorney's Office

Director Molendyk introduced Attorney Krista Gee from the City Attorney's Office who was present "as a resource" on a couple of agenda items.

Director Molendyk presented Manager Pat Trotter with the City's recognition for over 25 years of service, congratulated her on behalf of the Department and wished her well on her retirement effective July 15, 2005. Manager Trotter said she enjoyed every day of her work at the City, thanked her colleagues, the Commission and said she "loved the City" and the people she worked for, and would continue her work through a "Civic Engagement" volunteer project.

Vice-Chair Han thanked Manager Trotter for her many years of support, saying they enjoyed knowing her. Commissioner Keller said she wanted to "personally thank Pat," noting that she didn't just work in the Department, but worked throughout the City and in the community, especially with the Collaborative, and that she would still be working for the community. Director Molendyk invited the commissioners to the retirement party on Wednesday, July 13th at 3:00 for Manager Trotter and two other ladies who were also retiring.

PUBLIC COMMENTS

None.

ACTION ITEMS (Items 1 - 2)

*1. MINUTES OF THE JUNE 13, 2005 REGULAR MEETING

Commissioner Dalton MADE A MOTION to approve the minutes of the June 13, 2005 regular meeting as written. Commissioner Miller SECONDED THE MOTION.

Per Vice-Chair Han, the minutes were APPROVED AS WRITTEN.

*2. KIWANIS CLUB LEASE AT 410 S. RICHMAN AVENUE

Director Molendyk introduced the item, noting that the Commission has been reviewing leases that the City has had for a number of years. He said the Kiwanis Club Lease was coming up for renewal in August of this year, and was scheduled to be heard tonight. However, he said that Kevin McCarthy, who said he was the official spokesman for Kiwanis, Boy Scouts, and Boys and Girls Club - all organizations involved in the lease, called to say he would be on vacation this week, and was, thus, requesting that the Commission reconsider the item at a special meeting this month or a later Commission meeting. He provided alternatives of a special meeting this month prior to the agreement expiring, July 25th, 26th, or a regular meeting date in September or October, since the Commission would not be meeting in August.

Commissioner Russell said the e-mails from Commissioners indicate they don't want to take the items off the agenda, saying that it was difficult to put an item on the agenda, and even harder to take an item off, and that he couldn't remember a time when an item was voluntarily taken off the agenda. He said he thought the normal process was to discuss the change with the Commission chair, saying he didn't think this had happened. He asked why it was on the agenda and taken off less than 24 hours later. Director Molendyk said it was on the master list to be presented in July, but when Mr. McCarthy of Kiwanis received the agenda letter, he expressed concern about some of the recommendations in the staff report, and said he wanted to speak to the Commission. However, he said he couldn't be at the meeting, asked that it be moved, and said that only he could represent the group when told that another officer could speak on behalf of Kiwanis. Director Molendyk said he spoke with the City Manager, knowing that the Commissioners felt strongly about hearing the matter at tonight's meeting. He said the City Attorney's representative was here to explain that people have a right to be heard, and that since no official could be here to represent the groups, it wasn't fair to discuss this matter.

Attorney Gee said, from a general perspective, the City's normal stance is that continuances are granted if the particular party, a concerned individual, can't attend the meeting, and if a continuance hadn't been allowed previously. Commissioner Russell asked if the Commission could choose not to continue the item, and Attorney Gee said "yes", that she was only providing advice from the City Attorney's office, and that it was from a "legal fairness perspective". Commissioner Russell noted that this was the first time anyone from the City Attorney's Office had attended a Commission meeting, as if they are being told that the Commission must continue the item or the City will make them. He said that was an awkward situation where they "were being dictated to as opposed to being allowed to convene and discuss and figure out if this is in everyone's best interest to continue this." Attorney Gee said the City Attorney's Office only makes recommendations, but that they were free to disregard it or take it into consideration. She reiterated the "legal fairness perspective" of allowing a continuance. Commissioner Russell said in the past, during hearings, these were not continued even though 3 of 7 concerned individuals weren't able to attend, and asked why this issue was so different. He noted that he didn't know Mr. McCarthy and liked the Kiwanis Club so it was nothing personal; he just wanted to be consistent.

Attorney Gee said she didn't know about the past issues, and wondered if the circumstances were different, if those were individuals with City contracts, and if they objected to the hearing going forward without them or not. She also noted that there were larger numbers of participants then versus the current situation where there was only one representative. Commissioner Russell noted that the Kiwanis Club, the Boys and Girls Club and the Scouts "is not one person," and Commissioner Spencer said, "and yet there's only one man coming." Commissioner Russell again asked if the Commission could go forward with the item tonight, and Attorney Gee said again, that she was only making a recommendation from the City's past procedure when there has been a specific request for a continuance, and that they could make a different decision from that.

Commissioner Russell asked what the exact procedure was regarding a continuance, saying he thought it should involve going through the chair of the relevant commission, not a phone call to someone on City Council. He thought there should be a proper procedure, either going through the Chair or the Director, and said that the Commission probably would have said "yes" to the continuance if it had gone through the Chair. Instead, he said he received an e-mail including an e-mail from a Council Member saying they should continue the item.

Director Molendyk said Mr. McCarthy contacted the Department last Thursday, July 7th, saying he didn't agree with the staff report, and, therefore, asked for a continuance since he would be on vacation during the July 11th meeting. Director Molendyk said it was suggested that Mr. McCarthy send his Vice-President or another board member, but he said he was "the spokesman on all accounts." He said staff reviewed the staff report with Mr. McCarthy and tried to answer his questions, and told him they would have to contact the commissioners, which they did.

Director Molendyk said that, originally, Chair Swanson responded by saying he couldn't be at the regular July meeting to hear the matter. Then, Director Molendyk said he received a phone call that the commissioners weren't willing to continue the item. He also noted that continuances happen more often at the Council level where a developer might ask for one, and that, typically, they were granted. He said that he was technically in the same capacity as the attorney, that he could only recommend. However, he pointed out that since the recommendation in the staff report was counter to what the user group wanted, he asked how the Commission could be objective and take everything into consideration along with the staff report if the representative of the user group wasn't heard. He said his experience was that if the party isn't given an opportunity to be heard, there will be criticism that the party didn't have an opportunity. They would then possibly appeal to Council, and would want to be heard in front of them. Thus, he said, it would be in the Commission's interest to try to keep the item in front of the Commission.

Commissioner Dalton said that it seemed everyone knew the lease would be expiring or need to be renewed in August, and asked when the last time was that the Contracts Review Subcommittee met with Kiwanis to discuss it, saying she found it hard to believe that Mr. McCarthy was not told when the item would be heard, and that he didn't know what the recommendations would be. She also asked what the history was and when they started meeting with him.

Director Molendyk said they started meeting with Kiwanis representatives last September, and said the last meeting included Mr. McCarthy and Larry Bennett representing the Boy Scouts. Staff asked the Subcommittee if they wanted to meet once more before the July 11th Commission meeting, but the Subcommittee felt it had sufficient information to make a recommendation, and that until the agenda letters had been received last week, Kiwanis believed the recommendation would be to continue the lease as it had in the last 25 years.

Commissioner Dalton asked if Kiwanis knew when the item would be heard, and Director Molendyk said staff would say "yes", but that Mr. McCarthy indicated he didn't know the meeting was July 11th even though staff had referred to that meeting since the lease would technically run out in August. Commissioner Dalton then asked what would happen if the lease runs out and the Commission meets after the lease had technically expired. Director Molendyk said the terms would continue in its present form until it went before the Commission. Commissioner Dalton asked legal counsel its opinion, noting that it was a 25 year lease with an option to renew another 25 years. Attorney Gee confirmed that Kiwanis had exercised its option to renew.

Commissioner Miller, a member of the Contracts Review Subcommittee, said he met with Kevin McCarthy and another Kiwanis member in May at the park, and also had a meeting in April with Jim Sharp of Kiwanis, Larry Bennett from Boy Scouts, Commissioner Spencer, the other Contracts Review Subcommittee member, Dan Sereno of Maintenance, and a couple other Maintenance staff. Commissioner Spencer noted that they also met with the Boys Club a week ago. Commissioner Dalton said that showed that the matter had been recently discussed and investigated.

Attorney Gee said there was a lease of $1 per year. Then Senior Analyst Loya said there was a 25-year lease with an option to renew for another 25 years. She noted that staff had written Kiwanis and informed them that a Subcommittee had been formed to review the lease along with other leases, and should there be a disagreement over what should be done, the lease would be honored and extended, continuing month to month, until a decision was made. When Commissioner Dalton asked, it was confirmed that the City wasn't liable nor was Kiwanis if the item was continued past August. Attorney Gee said the assumption was that, even without a statement from the City, the contract would continue month-to-month, as long as the option had been exercised. Commissioner Miller was told that the contract could not just be renewed because a decision hadn't been made. Commissioner Miller also explained to Commissioner Dalton that he and Commissioner Spencer had spent a lot more time than just in those few meetings with several trips to the Boys and Girls Club, to the buildings and restrooms there, the latter which didn't work there, saying that homeless people probably had a better place to live than there. Commissioner Dalton said, sardonically, that it was "a lovely piece of property from the outside, so I'm assuming it has some problems inside as well."

Commissioner Keller said she would like to object formally to the process besides her e-mail and phone calls. She said she was surprised this was even being discussed since she was told on Friday that the item would be pulled. She asked if the others were assuming this also, and didn't understand why they were discussing this at all. She said she was a person "who does like everybody to have their day in the sun," and that the process seems a little skewed.

Director Molendyk said the formal procedure is to ask for a continuance, which was asked. He said his understanding from the City Attorney was that if the Commission didn't grant a continuance, it would be continued anyway. Commissioner Keller said her understanding was that the item was taken off the agenda last Friday, and Commissioner Miller concurred. Commissioner Russell said he was told what Director Molendyk just said, that if Commission proceeded, the City Attorney would say "no." Director Molendyk agreed that that was his understanding. When Commissioner Miller asked Attorney Gee if that was what she would say, she said, "That's my recommendation," and that she couldn't tell them what to do. However, she reiterated that in order to be fair to the lessee and honor the normal request for a continuance, she recommended that it be granted.

Commissioner Dalton asked about the lease termination and renewal, referring to Page 2 of the original lease, top paragraph, regarding the requirement that Kiwanis notify the City 6 months prior to the end of the lease if it wanted to renew, and that 30 days later, the City was supposed to respond. Analyst Loya said they responded with the letter saying that the Subcommittee was going to review the lease, but that they were not in a position to say "yes" or "no" within 30 days. Commissioner Miller asked who wrote the Kiwanis letter, and Commissioner Dalton said it should have been Mr. McCarthy; however, Analyst Loya said it wasn't Mr. McCarthy or Mr. Sharp.

Director Molendyk said he wasn't that prepared to discuss the item because his understanding from the City Attorney's office was that this item would be continued. Commissioner Dalton said that since the City Manager and City Council wanted a continuance, the Commission was expected to do so. Director Molendyk said it was pointed out to him that Commission was advisory to and working with the Council, so there was some benefit to hearing from the interested individuals in a public session.

Commissioner Russell said he didn't have a disagreement with that, that his only concern was "where do you draw the line?" He noted St. Jude coming with their "last-minute" project and being rushed through as something more inappropriate. He said the lease ending was 25 years in coming, and that he would assume that all parties involved were aware of the timeline. Director Molendyk said that was the intent of staff which is why they had it on the agenda; unfortunately, they were just told by Mr. McCarthy last week that he would be on vacation.

Vice-Chair Han said she understood the lease expires and goes month-to-month, but felt that Mr. McCarthy asking for a continuance just before the planned meeting date was not normal procedure, that this was not treating the City properly, and that Kiwanis should go through the normal procedure and with sufficient notice. Director Molendyk said that the City Attorney was here to answer some legal questions on this and another possible matter. Commissioner Dalton suggested that staff needs to play "mommy" and ensure that interested individuals are available, and that one can't take for granted that even mature people are going to follow through with their part of the obligation. She suggested that staff write a letter six weeks in advance to inform the party when it would be on the agenda.

Director Molendyk apologized to the Commission for the inconvenience, noting that it was inconvenient for staff as well, and said that, after dealing with Kiwanis for several months, staff didn't know until last Thursday that there was only one spokesperson in the whole city. Commissioner Spencer asked, and it was confirmed that Mr. McCarthy would be speaking on behalf of all three organizations, Boys Club, Scouts and Kiwanis, and that staff was told that the Scouts and Boys Club couldn't represent themselves. Commissioner Russell asked if they were to continue the item, only one person would be present. Director Molendyk said he wouldn't bet on it, but that there might only be one spokesperson.

Commissioner Russell received confirmation that if they were to proceed, the item would still go to Council with Commission's recommendation. Therefore, Mr. McCarthy and Kiwanis could still appeal to the Council, who could vote for a renewal, even if Commission recommended against a lease tonight. He said if Commission made a recommendation, then Kiwanis could go to Council prior to the lease expiration in August, so that extensions wouldn't be necessary. Director Molendyk said Commission could go ahead and vote tonight, but it would be nice if, when Council looks at the item, it knows Commission has had input from staff, the Subcommittee and the community.

Commissioner Russell said his problem is that the average citizen doesn't know he can request a continuance by contacting the Parks and Recreation Director. He said the Kiwanis makes phone calls to City Council so that the Commission gets e-mail from city councilmen, and are told that the City Attorney will be here to demand the continuance be allowed. He said if he did the continuance, it would appear he is caving in from pressure from City Council and the City Attorney. If a continuance is granted, he said, from now on, the Commission has to inform any members of the public that they can ask and receive a continuance because they aren't aware of this. He said even the commissioners would have a right to a continuance if they don't think something should come forward. Commissioner Miller said he remembered a lecture about the commissioners not thinking for themselves and Commissioner Dalton agreed.

Attorney Gee said her recommendation wasn't based on what anyone wanted her to say, but what's good for the City. She said if the Commission went ahead tonight, it would appear that important information wasn't provided since the dissenting party wasn't here to refute the staff report. If the issue was decided without important information, not only would the item be appealed, but the City Council would not and could not give much credence to Commission's decision.

Commissioner Spencer asked if the Commission could even discuss the issue, if it was not in violation of the Brown Act, for example, if no action was taken. Attorney Gee said it would be okay to discuss the item because it was on the agenda, saying it was not in violation, but was a matter of fairness and due process for the lessee. Commissioner Spencer said that since only two commissioners were involved in the Subcommittee and its interviews, she asked if it was proper to discuss it just to provide background to the other commissioners.

Commissioner Dalton said she would like to have a discussion to better understand the issue since the staff report was fairly brief and it was "a 180" from a long-term lease. She said she wasn't agreeing or disagreeing but she would like to hear the other pieces of the puzzle. She thought it was "very suspect" that only Kiwanis wanted to represent the sublessees; she requested that someone from the Boys and Girls Club and the Boy Scouts attend the meeting because they were the users of the property and Kiwanis was only the "middlemen" and not using it.

Commissioner Miller said he wondered if it really mattered what the Commission did since, other than the council member to whom he was appointed, he had never received a communication from any council member.

Attorney Gee said it might be better to have any substantive discussion when Kiwanis is present so they can get Kiwanis' input. Commissioner Dalton said she just wants some history on the current status of the lease and Subcommittee's recommendation as it was rare to summarily deny a lease; therefore, there had to be some good reason for it. She asked if the Commission wanted to discuss the item so that they are more informed when they come back to revisit the item.

Commissioner Russell said that was if they come back, and said he still wanted an answer to the question to what the City Attorney will say if they want to go ahead with the item. Commissioner Dalton said they were told to "go ahead". Attorney Gee said her recommendation was to grant the continuance. Commissioner Russell asked what the Attorney would do if Commission disagreed, and she said they were free to do so and that she had no power to control them. He asked if the rumor that the City Attorney would pull the item was false, and she said that wasn't her role and that she did not have the power to do so.

Dalton MADE A MOTION to continue the item to a meeting yet to be determined, but that she would like to discuss it. Commissioner Russell said she didn't have to do that since it was on the agenda and it could be discussed first before continuing the motion, so she WITHDREW HER MOTION. Director Molendyk said Analyst Loya was getting photos downstairs as they thought it was continued and weren't prepared with a Power Point presentation.

Commissioner Dalton MADE A MOTION to discuss the item and Commissioner Keller SECONDED THE MOTION. Commissioner Dalton said she was concerned that Commission was told that "only Kiwanis would be here when we decide on this", and that wasn't okay with her. She said she wanted to hear from the Boy Scouts and the Boys and Girls Club. Director Molendyk said they have spoken with Mr. Bennett who represents the Scouts, Mr. McCarthy of Kiwanis and the other organizations, the supervisor, Alvin, on-site at the Boys and Girls Club, and met with the Executive Director of the Boys and Girls Club. However, they were then corrected by Mr. McCarthy who said he was the only official spokesperson for all three groups, not the Executive Director, and not Larry Bennett.

Commissioner Dalton asked how that happened, and Commissioner Miller said they were speaking to the Larry Bennett, a coordinator from Scouts, but not the Scout Master. He said Kiwanis is the Scouts' charter sponsor which advises and helps the scouts. He said they also spoke with the Executive Director of the Boys and Girls Club and the on-site supervisor, and said they were both amenable to whatever the Subcommittee wanted to do. Commissioner Miller said the Kiwanis, of which Kevin McCarthy is President, has had the lease for 25 or 30 years. However, he didn't know how Mr. McCarthy became the only spokesperson other than him saying so to Director Molendyk, and that they have now "wiped out" the Executive Director of the Boys and Girls Club and "the main spark plug for the Boy Scouts."

Commissioner Dalton said she found that very irregular, asking how they will get any "honest information" from the Scouts or Boys and Girls Club on the facilities and usage of the property if they aren't allowed to speak. Commissioner Miller said Mr. McCarthy is also on the board of the Boys and Girls Club. Commissioner Dalton said it "sounded like a real conflict of interest." Commissioner Spencer agreed with Commissioner Miller's summary, saying she didn't know how much attention Kiwanis had paid to the property, and that there was a Jim Sharp taking care of the building whom they also met with originally. She said she didn't know how much the director of Kiwanis knew about the day-to-day happenings at the park.

Director Molendyk said if they were in discussion, he wanted to note that when he came on board in September, a lot of leases were coming up including St. Mary's Church, YMCA and now Kiwanis. He said that part of the problem with this lease was that there were council members, commissioners and staff members who were unaware that the property on Richman and Truslow was owned by the City. When the item came up, the Commission discussed it briefly and this was how the Contracts Review Subcommittee was formed.

Director Molendyk said they have had several meetings regarding the Kiwanis Lease, visited the site, and walked through the buildings, noting their condition as well as maintenance and storage issues. The Subcommittee's conclusion was that the Kiwanis had not really honored the agreement. He said that if Kiwanis were here, they might say they never knew there was a problem. However, he said, if one spoke with the former landscape superintendent, Dan Sereno, Analyst Loya, or Maintenance Department Director Bob Savage, they would say that they've been dealing with Jim Sharp of Kiwanis for a number of years. He said Mr. Sharp's apparently been a very difficult person to deal with, and that if he hadn't communicated with his board of directors, he couldn't say. However, City staff, if asked, would say that Mr. Sharp was in charge, was the contact person with Kiwanis, and was supposed to ensure that the agreement was properly administered and the property maintained.

Director Molendyk continued, saying that about four years ago, Kiwanis wanted to raise funds to improve the grass area between the buildings and eliminate the inoperable restroom structure noted in the staff report. He said Kiwanis requested that Dan Sereno kill off the grass so they could replant the grass. However, that was four years ago and nothing has been done yet. The Subcommittee heard from Kiwanis that they could raise funds and make the improvements much cheaper than the City. He said Kiwanis and the City also signed a $70,000 joint grant request with the Metropolitan Water District to upgrade irrigation and install sensor devices; however, that grant was not approved. Instead, the Arboretum received the funding. Director Molendyk said that Mr. McCarthy says his word is good, and that if he says he'll get it done, he will. However, between the Scouts and Kiwanis there is $20,000 pledged for the project, and that is "not even close" to what it will take to clean up the drainage issues, and to install irrigation. Also, while the Kiwanis and Scouts would be willing to assist to a certain extent as volunteers, they were also requesting that the City to take a more active role in maintenance in the new lease, as the City does in its other parks.

Director Molendyk noted that most service organizations have dwindled in membership, and said that that was another of the Subcommittee's concerns. He acknowledged the many things the Kiwanis have done for the City and the park over the years, but said Commissioner Miller checked on the Kiwanis membership and found only 16 to 34 members, depending on who provided the information. He said the Subcommittee wondered how a small membership could support a park.

Commissioner Dalton asked how long Mr. McCarthy been the president, and Director Molendyk said he has probably been involved in numerous capacities for quite some time. Commissioner Dalton asked if he was around for at least the last four years during the maintenance issues, and Director Molendyk said he probably was, however, he said he was trying to point out that Mr. Sharp was the contact person who was initially involved with the City staff. In fairness to Mr. McCarthy, he said that Mr. McCarthy indicated to the Subcommittee that Mr. Sharp would no longer be the contact person in the new lease. Commissioner Miller said that was due to the Subcommittee's insistence.

Commissioner Dalton asked why Kiwanis wants the role of landlord and what they get out of it since they have clearly not done a very good job. Director Molendyk said the Boy Scouts would rather have Kiwanis as a "buffer". Commissioner Miller said the Scouts said they want to be protected from the ACLU and that it would be easier if the Kiwanis stood between the Scouts and the City, although he questioned the effectiveness of that strategy. Commissioner Miller said the site plans are not from Kiwanis, but from the Scouts and Larry Bennett, but they are "gonna" plans, and not solid plans. Commissioner Miller said they proposed a one-year lease with specific timetables that would need to be met in six months or nine months, but Kiwanis has refused to accept any time frames.

Commissioner Dalton said 25-year leases may be too long if this property is an example of what 25-year leases are like, and that perhaps a three-year check should be built in or some other kind of control. She said the property was a detriment to the neighborhood and that she was "frankly embarrassed that the City owns this piece of property and it looks this way." Commissioner Miller said currently, it was a private park with a fence around it, and they had proposed making it a public park if the City upgrades and maintains it, but Kiwanis didn't like that idea. Commissioner Spencer said the Executive Director of the Boys and Girls Club thought it was a good idea but Kiwanis didn't like it. Commissioners Dalton and Spencer agreed that it was not currently being used to the maximum, that it was for the exclusive use of the Boys and Girls Club most of the time, and it wasn't even being used on the weekends. Commissioner Dalton said it wasn't in a condition to be used, with a horse trailer and a junk pile.

Attorney Gee said if they were going to continue the matter, the lessee would probably like to provide information on this matter as well. Director Molendyk said the Subcommittee found that for the investment of time City Maintenance is spending there, the facility is underutilized. Besides the 100 - 120 kids that the Boys and Girls Club says are there daily, the Boy Scout House is only used Thursday evenings, and Mr. Sharp said the Girl Scout House is used three times a year for Kiwanis functions; otherwise they meet at Arbor Manor. Commissioner Dalton referred to the aerial photo, saying that Building #2 is essentially not used. They noted the restroom that isn't working and for which there is no key.

Director Molendyk said there are also other leases that haven't been appropriately administered because of two reasons: People didn't realize the City owned the property, and this lease was treated differently. Commissioner Dalton asked if 25 years was too long for a lease, and the other commissioners agreed.

Director Molendyk continued, saying that the Subcommittee found in discussion with the representatives for the property, that the representatives were willing to go forward with the capital improvements, but only if they were given an executed 25-year lease. Commissioner Miller said this was true but that Kiwanis doesn't have any money with which to go forward.

Attorney Gee said the lease agreement provides for an option to renew for 25 years, so she didn't think the Commission could reduce that. She said Commission could recommend that a provision for review be added in the contract, but that the term of the lease could not be changed. Commissioner Dalton asked if the City could get out of the lease with Kiwanis, and Commissioner Spencer said they would have to "show violation," and Commissioner Miller said that that was what was happening.

Attorney Gee then said if that were the direction Commission was taking, the lessee should be there. Commissioner Dalton asked if it wasn't getting into legal issues, and the attorney agreed. Commissioner Dalton asked who determines if someone is legally in violation of the agreement which would allow the City to not renew or change the agreement. Attorney Gee said the Commission could decide that, but they would always take the risk they were wrong. Commissioner Dalton said that was where they needed legal counsel.

Director Molendyk suggested the commissioners view the photos before ending the discussion. Analyst Loya provided doc cam photos which were taken by Commissioner Miller in February. He first pointed out a pile of dirt from the plans to renew the grass three or four years ago, then a storage shed with bags of soil and refuse scattered around. He showed the Boys and Girls Club storage shed which had old chairs scattered around which he said has since been cleaned up. He then showed a restroom that hasn't worked for years, standing water because of poorly maintained drainage with a tire in the middle where a playground should be. Commissioner Keller noted that there is a school district infant program on this property. Director Molendyk said the standing water was known as Lake Truslow, and that there is more than $30,000 worth of grading needed and drainage pipes as well. A photo near the Girl Scout House showed dust was being kicked up in the playground. There was non ADA-accessible playground equipment, but Commissioner Miller said Kiwanis told them they didn't have to comply because the equipment was "grandfathered in." Commissioner Dalton said the Scout House looked halfway decent. Commissioner Miller pointed out the bags of top soil "rotting" from three or four years ago, and said the commissioners probably got the idea of the condition of the property.

In answer to Commissioner Dalton's question about what the Kiwanis gets from this, Director Molendyk went over the agenda letter Subcommittee recommendations, including entering into a lease agreement with the Boys and Girls Club for the building they currently occupy as well as the vacant Girl Scout House building with the requirement that the building be made available for other community groups to use. He added that in discussion with the site supervisor and director of the Boys and Girls Club, they indicated a need for more space for a computer lab, and that they would be willing to allow others to use the space.

Another recommendation was to enter into an agreement with Boy Scout Troop #93 for the locker room structure and the Boy Scout House currently occupied. Director Molendyk said Commissioner Miller also suggested fencing to separate scout usage from the public park. He said that the City could do all the maintenance rather than just part of the maintenance if the City cleans it up and it's opened up to the public. However, the Subcommittee couldn't justify using public money to clean up the property if only one or two groups were using the property. He said when the Subcommittee asked Kiwanis why the City couldn't be the landlord and why Kiwanis had to be the landlord, Kiwanis's answer was because "that's the way it's been." Commissioner Miller added that part of the plan was to open up one end of the Girl Scout building so that the restroom could be utilized there; thus, a restroom wouldn't have to be built. Director Molendyk said the current unused restroom building could be taken out of the middle of the only open play area.

Commissioner Dalton asked about any direct City leases with the Boys and Girls Club, and Analyst Loya said there were two such leases, one at Valencia Park and one next to the Senior Center. Commissioner Dalton asked again what useful purpose Kiwanis serves, and what their role was. Subcommittee members Spencer and Miller and Director Molendyk said they never got an answer to that question. Commissioner Dalton said she wants ask those questions and that is why she wants to require the Scouts and Boys and Girls Club to attend, and that she doesn't want to eliminate Kiwanis if they are, in fact, "an important piece of the puzzle." Director Molendyk said they would be happy to invite the appropriate representatives, just as they sent them the agenda packets, but whether they would be encouraged to attend was another issue. Commissioner Dalton asked if the City could say the Commission has requested their attendance, and Attorney Gee said "Sure, I don't see any reason why you can't," and that if someone couldn't make it and wanted another continuance, there would be a greater justification for not granting the second continuance. She said if someone couldn't attend, they could send something in writing about the use of the property, or, as Commissioner Miller suggested, send a substitute. Commissioner Dalton said they definitely want to hear from Kiwanis their side of the story; however, she wants to hear from the users about their relationship, and it isn't clear to anyone what it is. Commissioner Miller said he'd been told Kiwanis provides the Scouts with $20,000 yearly, and would like to know more about that. Commissioner Dalton asked if either Scouts or Boys and Girls pay Kiwanis anything to lease the buildings, and was told if it were so, it would only be $1 per year.

Commissioner Russell MADE A MOTION to continue the Kiwanis Lease to August 1 and make it a special meeting; he said didn't want to continue to October. Commissioner Dalton said she couldn't be there due to a vacation, Commissioner Keller said she can't be there in July either. Commissioner Russell said he wanted the item to go to Council the first meeting in August so that it will either be renewed or not renewed on time. After much discussion about commissioners' meeting and vacation schedules, and the need to address the issue in a timely fashion, Commissioner Russell MADE A MOTION to continue the item to a special meeting on July 20th at 6:30 p.m. in Council Chambers. Commissioner Miller SECONDED THE MOTION.

Commissioner Russell commented that they hope members of the public go through the proper process, go to the Director who will contact the Chair, have a private discussion, and make a decision. If a decision has to be made by all the commissioners, they could all be e-mailed or contacted, but members of the community should not be calling Council to ensure Commission is doing things they want them to do. He said he felt uncomfortable with the Council getting involved and apparently mandating a continuance. Because of Commissioner Dalton's and all the other commissioners' questions, they would probably have agreed to continue the item. But with the e-mails mandating a continuance, it appeared that someone was getting preferential treatment because they knew who to call. He again remarked how he himself couldn't ever get items on or off the agenda.

Director Molendyk said when Mr. McCarthy came last Thursday, that was the first time they had seen him, and he said he already had three votes on the Council after soliciting the council members, so staff really didn't have a choice. Commissioner Miller said with all they have heard about the lack of park space in that area of the city, and an opportunity to create a new park there, he couldn't see how Council could turn it down.

Commissioner Dalton said she was planning on asking a lot of "hard questions" so staff needed to be very candid about what they know. She said she wanted to see any written documentation on when Maintenance had discussions with Kiwanis about the property, and she wanted to see it ahead of time. Director Molendyk said they would be happy to provide any information available, noted it was difficult getting good information from old documents, and asked that the commissioners make their requests early so staff can have the answers available at the meeting. Commissioner Dalton said she wanted documentation on any meetings with Kiwanis over the past 25 years about the condition of the property or their intentions. She asked if they will allow the property to continue looking as it has for 25 more years, or is there some reason to believe it won't if the City doesn't take it over.

Vice-Chair Han called for the vote.

AYES: Dalton, Han, Keller, Miller, Russell, Spencer
NOES: None
ABSENT: Swanson

The MOTION CARRIED unanimously.

INFORMATION ITEMS (Items 3 - 8)

3. PLAYGROUND SAFETY MEASURES

Director Molendyk apologized to City Risk Manager Gretchen Beatty for the delay in allowing her to speak on the agenda item. He said the City does not have a recommendation for Commission on what the best way is to minimize liability at the playground at the Sports Complex due to foul balls. However, he said Ms. Beatty wanted to provide the Commission with information on how Risk Management operates; and that her job was not to eliminate risk, but to manage risk. He further said that Ms. Beatty will help a department with a problem, or more likely, identify an outside expert to come and evaluate the problem. If the Department can solve the problem with a $10,000 or $50,000 cover, they would prefer that to spending $120,000, and that, in the future, when overseeing projects, the Department might want to have its Request-For-Proposals require that the contractor be responsible for risk expertise. He also noted that the next time the Commission has a workshop, both Manager Beatty and the City Attorney could be available to speak about potential litigation.

Manager Beatty said she was asked to explain what she does, and said she knows a little about a lot of things, and that Risk Management was a common-sense job. She said she doesn't have the knowledge to consult on sports, engineering, etc. but can get the appropriate experts. She was able to find an expert at trial in the sports and recreation field. She said the easy solutions for the foul balls at the playground were run by the City Attorney who said those weren't the appropriate solutions.

Commissioner Russell said the Commission's concerns were 1.) At what point in time does someone make a decision to close a playground; 2.) Who makes the decision to reopen the playground; 3.) Regarding a solution, how does the Commission determine the level of risk that the City is willing to accept.

He asked why the City closed the playground when no one got hurt, and it was just from a few complaints. Manager Beatty said she was recently notified of a continuing problem, despite measures that had been taken, which she was also told about during the first season the Complex was open. This second time, they met with the City Attorney and were put on notice to close the playground.

Commissioner Russell asked what the paper trail was in order to analyze complaints and how they determine whether the complaints are valid. Manager Beatty said Parks and Recreation Department Manager Grace Miranda received those complaints so she couldn't answer that question. Commissioner Russell asked about the process when a complaint is made so that there is a paper trail about who, when and what the complaints were. Manager Beatty said complaints are frequently logged through a Maintenance Department software system that records and manages complaints. She said these complaints become public record and become "discoverable" in courts of litigation. She said Risk Management doesn't maintain those records in its office, plus it would be more appropriate for other departments to respond to the complaints.

Commissioner Russell asked how many complaints were made - one or a hundred, and Manager Beatty said she was aware of one complaint this year, but that, upon questioning, staff said they had witnessed repeated occurrences. Commissioner Miller also questioned how many calls were received. Manager Miranda said the Department received two calls from the public about foul balls in the tot lot, and that Park Projects Manager Randy McDaniel spoke with full-time Maintenance staff Bill McIlonie, Rob Schulte and two part-time staff who all confirmed that they had "often" seen foul balls in the area. Commissioner Russell asked if any complaints had been made this year, and Manager Miranda said "yes" and that two had been received.

Commissioner Russell said he's also receiving complaints about the tot lot being closed so he's trying to find out why it was closed and if there is something they can do since they are going to "lose an entire summer of using that playground when we do not have at this point in time any organized leagues playing games there." Manager Miranda said she has noticed the gate to the tot lot is sometimes open, so clearly, people are wanting to use it.

She then described the process the Department went through to address the foul ball problem, saying the two complaints were received in early March of this year. She said they spoke with staff and the leagues, confirming that there was still a foul ball problem. Manager Miranda said she and Manager McDaniel contacted Risk Manager Beatty who immediately contacted the City Attorney. After discussion, they all decided that the tot lot should be closed temporarily until a solution was found to minimize the risk from foul balls.

Manager Miranda said Manager McDaniel then took the issue to Commission June 13, 2005, and provided options for various shade structures that would minimize foul balls in the tot lot. The Commission then recommended that Risk Management provide a real evaluation of the risk of foul balls in the playground and what would be needed to minimize the risk.

Manager McDaniel e-mailed Manager Beatty the next day, and she provided contact information for a playground expert on this issue. Manager Miranda then took photos of the Sports Complex, and sent a packet of information including the photos, site plans and information on the recent fence extension, to the playground risk expert the previous Friday. She said the expert will provide an audit, perhaps in a couple of weeks or a month.

Commissioner Russell said it appeared the City had jumped the first step, and made the assumption that something needs to be done. He said he wanted to go back to that first step, and ask the City Attorney why they decided to close the playground when it's a playground in a sports complex, just like other cities. He said everyone expects foul balls to go into the playground, just as they expect foul balls in a parking lot. Commissioner Russell asked if the Commission could have a hearing on the playground closure if the Attorney's Office closed the playground. Attorney Gee said she wasn't directly involved, but thought the City Attorney, in consultation with staff, looked at the City's liability and exposure, and made a recommendation. Commissioner Russell said he had concerns about the timeline, that the temporary closure would end up being more than a year long, due to a Commission decision in October or November about what to do, and with construction taking five or six months. He said that as a Commissioner, he's receiving complaints about the closure, and asked if the Commission should have a discussion on the September agenda on whether the tot lot should be opened since soccer will be using the field until baseball season begins after February.

Commissioner Dalton asked whether signage would be possible, saying the tot lot was off-limits during ball play. Manager Beatty said signage was the first issue looked at, but because tots can't read, they decided it wasn't a viable solution. Commissioner Dalton said tots should be with their parents, and if not, the parents would have a bigger liability issue than the City. Manager Beatty said two-year olds make very sympathetic plaintiffs and that, in any case, the City was on notice for two years about a problem which was a test under the government code. Commissioner Dalton asked if they could investigate the issue of signage or other solutions for a tot lot in a sports complex. Director Molendyk agreed, saying they could provide more specifics at an upcoming meeting, and that there should probably be a discussion about assumable risk, and how much risk the City or a sports league should take. He also noted that if we overreact, we have to ask what happens at other playgrounds.

Attorney Gee said they could also send an attorney-client privileged memo to explain the basis for any decisions to the Commission, and if there were further questions, those could be dealt with at a future Commission meeting. Commissioner Dalton asked if the staff could work with the Attorney's Office to find out what a reasonable risk was, and that all risk could not be eliminated. Director Molendyk noted that City government has really changed because of the high rate of lawsuits, and that if something comes to staff's attention, the City sides with the conservative option.

Commissioner Russell asked if the tot lot could be open during the Summer Concerts since hundreds of people would be coming to listen and there would be a fence around the playground without organized baseball, and if the City Attorney's Office and Risk Management could look into that. Director Molendyk said they could look into that issue since Little League has concluded, and that perhaps it could be eliminated for the remainder of the summer, and that, if not, they would notify the commissioners.

Commissioner Russell said that if it's still closed in September, he wanted it on the September agenda as an action item. Director Molendyk agreed, saying they could also open the playground and close the fields.

Commissioner Miller said he has difficulty understanding the issue, saying that when one attends a baseball game, one assumes the risk of getting hit, and gave the example of ball games he went to recently where the fans had to keep watching out for foul balls and his daughter's windshield got broken. He also asked about Bastanchury Park, asking why they are building a playground right next to the ball field. Director Molendyk said that is where they typically build play grounds. Manager Beatty said they will ask the playground expert about the location of home plate in relation to the tot lot and if that may have a lot to do with where the tot lot is located. Director Molendyk said they talked with Risk Management about the Yorba Linda fields with a tot lot nearby, but that they should also not be surprised if tot lot is removed. Attorney Gee said that there is an inherent risk when one is in the audience of a sports event, but that someone playing on playground equipment is not part of an audience.

Director Molendyk thanked the attorney and Manager Beatty for their attendance, and Commissioner Russell asked again that the playground issue be placed on the September Commission agenda.

4. SUMMER CONCERTS AT THE SPORTS COMPLEX

Manager Mauk greeted Vice-Chair Han and the commissioners and said she was there to update them on the Summer Concerts which begin every Wednesday starting July 20th until August 24th. She provided a Power Point presentation of the various bands: Soundbytes, Derek Bordeaux Group, Sol de Alegria, Super Lark, a new Rod Stewart tribute band starring Gregory Wolf, and world musician David Lindley who has worked with Jackson Browne. She also noted children's activities provided including funky jewelry and ultra cool sun glasses. A new addition is a food vendor serving hot dogs, Mexican food, caramel apples, funnel cakes and drinks.

She said the RSVP senior volunteers will be used to control traffic which has been a problem in the past. She said there is one resident who is unhappy with the noise but they continue to work with her. When asked, Manager Mauk said the resident has been invited to the concert but doesn't attend, and that the Summer Concert hours are 6:30 to 8:00 p.m. She passed out concert flyers to the commissioners.

Director Molendyk acknowledged Manager Mauk and her staff for a great 4th of July, and said the Police Department estimated there were about 40,000 people watching the fireworks inside the stadium as well as locations outside including the Court House and Hillcrest Park. He also noted they should have more aerial fireworks next year. Manager Mauk also recognized Events Coordinator Stacy Michalak for her work on the 4th of July and Summer Concerts.

*5. LANDSCAPE DIVISION MONTHLY REPORT FOR JUNE 2005

The Landscape Division Monthly Report for June was received and filed. Landscape Superintendent Dennis Quinlivan provided a response to Chair Swanson's question from the previous Commission Meeting regarding the lack of landscaping on the median at Yorba Linda Boulevard near the 57 Freeway. He said he inspected the area and agreed there was "a lot of asphalt out there - there isn't a whole lot of planting," but that a project of this size would require designing by an architect, and funding added to a five-year capital improvement program. He said the project could be put on a list for consideration in January 2006, and if approved, the funding would not be allocated until 2011. He said he could make a recommendation and hoped he would have more staff to maintain the area at that time. Superintendent Quinlivan also noted current projects including weed abatement, trail reconstruction at Ashburn Terrace near Brea Boulevard and the Sports Complex, planned tree trimming in the basin between Fairway Village and Loma Vista Cemetery. He said he would be happy to answer any questions.

Commissioner Spencer expressed her thanks for responding to Green Acres' request to plant trees. Superintendent Quinlivan said she was welcome and that there would be about six people planting trees. Commissioner Spencer said the median on Bastanchury between Euclid and Highland had nothing there, only dirt, and that even pavers would be better. Superintendent Quinlivan said the plants were removed due to a "site clearance issue" but that they would address the issue.

6. DIRECTOR'S UPDATE

Director Molendyk said Commissioner Keller was kind enough, at the last minute, to accept a City Council proclamation on behalf of the Commission and staff, of July as Parks and Recreation Month.

He also reported on unanimous Council approval of the proposed Tennis Center renovation concept plans, and approval of an additional $250,000 on the Laguna Lake Restoration Project which is moving forward more quickly due to the drier weather. He also noted another turtle found at the Lake weighing 30 pounds.
Director Molendyk said the Sports Field Users Meeting of June 29th went well and acknowledged both Manager Miranda and Field Coordinator Carol Whitaker. He said the users all seemed happy about the outcome of the meeting, and that the Department is also working on a date for the dedication of Bastanchury Park, probably in October. Director Molendyk said the September Commission meeting date would remain on the regular September 12th date, and would include an item on playground equipment.

7. REPORT ON CITY COUNCIL AGENDA ITEMS

Director Molendyk reported briefly on recent Council items including renewal of the City's agreements with Major League Softball, Inc., Izaak Walton League of America for the Cabin in Hillcrest Park, and the license agreement for vehicle parking in Amerige Park with the Roman Catholic Bishop of Orange County. He said Council also authorized the Director of Parks and Recreation to execute an agreement with purkiss rose-rsi for consultant services for the Valencia Park, Byerrum Park and Adlena Park Rehabilitation Project.

8. COMMISSIONER COMMENTS

Dalton asked if the September 12th Commission meeting was the regular meeting date and Director Molendyk said "yes", but that Commissioner Swanson said he would not be able to attend, and that he himself could not attend either. Commissioner Keller asked if they were being asked to change the date, and Director Molendyk said he would check with the Chair and get back to the Commission. He also reminded the Commissioners that they had voted to "go dark" in August.

Commissioner Miller asked about a follow-up from Fullerton Aquatics Sports Team (FAST), and Director Molendyk said they could put them on the September agenda.

When Vice-Chair Han asked if there were further comments, Commissioner Keller said her comment for the evening was that she was sorry she was going to miss the first Summer Concert due to her obligations as Commissioner.

Commissioner Miller MADE A MOTION to adjourn the meeting, and Commissioner Russell SECONDED THE MOTION.

The meeting adjourned at 8:50 p.m.

Respectfully submitted,

Ron Molendyk, Secretary

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