MAYOR AND COUNCIL
ROCKVILLE, MARYLAND

Meeting No. 09-07
March 12, 2007

The Mayor and Council met on Monday, March 12, 2007 at 7:17 p.m. in the Mayor and Council Chambers, Rockville City Hall, 111 Maryland Avenue, Rockville, Maryland.  Prior to the meeting, at 6:10 p.m., upon motion by Councilmember Hoffmann, duly seconded by Councilmember Dorsey, and unanimously passed, the Mayor and Council convened in Executive Session pursuant to 10-508 (a) (7), Section 10-508 (a) (7) and Section 10-508 (a) (8) of the State Government Article, Annotated Code of Maryland. 

Present at the meeting were the Mayor and Council, City Manager Scott Ullery, City Attorney Paul Glasgow, Deputy City Manager Catherine Tuck Parrish, Director of Community Planning and Development Services Art Chambers, Chief of Town Center redevelopment David Levy Director of Recreation and Parks Burt Hall, Director of Public Works Craig Simoneau and City Clerk Claire Funkhouser. 

In the Executive Session, the Mayor and Council discussed obtaining legal advice and consulting with staff regarding potential litigation involving 1) construction in Town Center and 2) COPT development (15 and 45 W. Gude Drive); and 3) to consult with counsel to obtain legal advice regarding the VisArts lease..

PRESENT

In attendance: City Manager Scott Ullery, City Attorney Paul T. Glasgow, and City Clerk Claire Funkhouser.

City Clerk Claire Funkhouser reported that there were no changes to this evening’s agenda..

Re: City Manager’s Report

City Manager Scott Ullery reported that Toy Kingdom and Cosi are now open in the Rockville Town Square and that two-thirds of the spaces in the parking spaces in the second garage are also open. 

Re: Presentation of Girl Scout Cookies to the Mayor and Council

Cookies were served to the Mayor and Council by Olivia Maust and Addison Poole of Daisy Troop 3924, Annabelle Heister, Brownie Troop 6581, Stephanie Washington of Jr. Troop 611, and Alana Hulse of Troop 5721.  Ms. Hulse said that today was the 95th Birthday of the Girl Scouts and mentioned the wonderful experiences she has had as a Girl Scout. 

Re: Appointments 

Human Rights Commission
Upon motion by Councilmember Dorsey, duly seconded by Councilmember Robbins and unanimously passed, Yvonna Love was reappointed as a member of the Human Rights Commission until March 1, 2011.

Rockville Economic Development Inc. (REDI)
Upon motion by Councilmember Hoffmann, duly seconded by Councilmember Dorsey and unanimously passed, Pradeep Ganguly was appointed as a member of REDI to fill an unexpired term until September 1, 2009.  Mayor Giammo said that Mr. Ganguly is the new Director of the Office of Economic Development for Montgomery County and was representing that office of the REDI Board of Directors.

Re: Consent Agenda

Upon motion by Councilmember Marcuccio, duly seconded by Councilmember Hoffmann, items A and B on the Consent Agenda were approved, as follows: 

(A) Approval of the Minutes for Meeting  39-06 (December 11, 2006), Meeting 40-06 (December 13, 2006), Meeting 41-06 (December 18, 2006).

(B) Award of Phase II, Implementation, of the Stormwater Management Utility to AMEC Earth and Environment in the amount of $192,600.00.

Re: Presentation regarding Speed Cameras

Chief Terry Treschuk introduced Lt. Jim Main who has been the main staff person leading the speed camera imitative.  Lt. Main gave some background on where and how the speed cameras can be used, which is primarily in residential and school zones where the speed limit is 35 miles per hour or less.  He said that no points could be assessed when someone is fined through using the cameras.  Lt. Main said that the fine would be applied to the owner of the car, regardless of the driver, and that there is reporting mechanism back to the legislature so that consistency in applying the fines is important. 

Chief Treschuk said that every three days someone is hurt in a speeding incident in Rockville.  Chief Treschuk cited the role of ACS, the consultants who worked with the City, on this important project, adding that the new speed camera analyst started work at the end of February.  The van that will be used by the analyst was delivered on March 5th.  There will be a warning period beginning today.  The cameras are expected to go “live” in April.  There is a dedicated phone line in the Police Department if people have questions about the cameras they can call 240-314-8935. 

Chief Treschuk also described how the streets were determined.  The locations were based on the fifty worst locations for speeding in the City.  Another criteria was whether or not roads met the requirement as stated in the legislation.  A citizens’ advisory committee met with the Police Department and they approved the locations according to the proscribed criteria.  Chief Treschuk thanked the citizens’ group, saying that final approval of the sites was made by the Police Department.  ACS will provide the technology and the van will provide the setting for the mobile deployment of the cameras.  The City’s website lists where the sites are located.  There will also be news releases, signs on gateways, and streets involved will be marked as, “photo enforced.” 

Councilmember Dorsey asked if the cameras would work at night and Chief Treschuk responded that they would.  Lt. Main explained that the cameras probably would not require a flash.  Councilmember Marcuccio asked about the direction in which the speeder can be caught.  Lt. Main responded that the cameras could only shoot from the rear of the van.  Councilmember Marcuccio asked about the rotation of the van and was told that there are twelve movable sites and three fixed sites. 

The Mayor and Council will receive an update approximately three months after implementation regarding all aspects of the program.  Mayor Giammo thanked the Police Department for their leadership on this issue and asked to be kept updated as the program becomes fully implemented. 

Re: Proposed Lease of Space for the Metropolitan Center for the Visual Arts, Inc. at Rockville (VisArts at Rockville) in the Rockville Arts and Innovations Center Building

Director of Recreation and Parks Burt Hall said that there were several VisArts Board members present.  He said that the Metropolitan Center for Visual Arts, Inc. at Rockville, formerly Rockville Arts Place or RAP, was previously located in downtown Rockville in the lower level of the Magruder’s Shopping Center.  Along with the rest of the original buildings in this block, the RAP facility was demolished to make way for the development of the block that is now Rockville Town Square.  The City was committed to working with all the Magruder’s Center business owners, RAP included, to offer the opportunity to return to Rockville Town Square as part of the new development.  In the earliest concept plans for Town Square, the Rockville Arts and Innovation Building was included with the intent of providing a new home for VisArts.  Discussion of specific plans to construct a Cultural Arts Center with VisArts as the primary tenant began in early 2004.  A binding Memorandum of Understanding (MOU) that defined the agreements between the City and VisArts for the financing and use by VisArts of two full floors, plus a ground level for retail space was approved by the Mayor and Council at their meeting of December 6, 2004 and executed on December 10, 2004.  The MOU addresses agreements between RAP and the City on the following key subjects and action plan: 

• Description of RAP’s dedicated space
• Ownership and management of the building
• Lease terms commencement date and lease rates
• Responsibilities of the City and RAP for design
• Construction and contracting; responsibilities of the City and RAP for operating expenses
• RAP’s responsibilities for fundraising to cover costs for interior build out
• Required schedule for RAP’s fundraising
• RAP’s responsibility to operate continuously in the new facility at a level acceptable to the City
• Design and use of RAP’s retail level space
• The City’s rights to use event spaces in RAP’s area
• The City’s right to approve any proposed changes to RAP’s name.

Mr. Hall said that a copy of the MOU was included among the Mayor and Council’s briefing materials.  Mr. Hall stated that VisArts has documented that their required fundraising goals have been met both in terms of the schedule and the total amounts raised.  They have provided the City with documentation as required by the MOU and have proved that they are in a financial position to cover the full cost of the build out of their lease spaces and to begin operations once the space is ready.  VisArts is responsible for all build out costs and will engage a construction contractor for that work. 
Councilmember Dorsey asked a question about the sublease and whether or not if the amount were larger that what VisArts was paying, there be a split between the City and VisArts.  Councilmember Marcuccio asked a question about where to find provisions for basing the expenses, saying that it says 50%, but not really identified sufficiently. 

Mr. Hall said that, in terms of what had been the information that had been required of VisArts, they seem to be a good business risk; they have a business plan; they have pledges and a letter from Wachovia Bank in terms of covering pledges that might not materialize. Mr. Hall said that he had even seen the balance sheet of the organization and had the attorney look at financial liability. 

In response, Councilmember Robbins directed her remarks to Mr. Hall and the VisArts Board.  She said that they had a bad economic record and that, if one looked at the group’s business background, it would show this history.  Councilmember Robbins said she was concerned that the group might expect the City to be its personal banker.  In response, Mr. Hall said that, if the City saw changes in their business operation, the City could withdraw its support. 

Mayor Giammo asked that the $2.8 million dollar donation as of January be confirmed and he asked for a description of the programs that were designed to specifically raise revenue.   Executive Director of VisArts, Debbie Moser, said that the plan would be to make the facility revenue generated.  She cited the retail space, the event area, the children’s hands-on gallery, and the monthly program for people from twenty-five to forty years old, in addition to classes offered on wood, glass, animation and film.  Ms. Moser emphasized that it is the desire of VisArts to attract audiences and participants of all ages.  An example of this would be the art of the comic book with many comic book collections.  Mayor Giammo asked when the expected opening date for VisArts would be and Ms. Moser replied that she was hopeful that the opening would occur by July 2007. 

Councilmember Marcuccio asked if there was a partnership document and Mr. Hall responded that he only knew of the MOU.  Councilmember Marcuccio asked that when the idea was conceived if the process was opened up to other non- profits and if the Cultural Arts Commission involved.  Mr. Hall said that there had been briefings with John Moser. 
Councilmember Dorsey asked if VisArts was a 501 (c) (3) and Mr. Hall said they were.  Councilmember Dorsey said that they would not necessarily be expected to make a profit under that.  Councilmember Hoffmann cited the possibility of the roof garden rental fees and if that money would go to VisArts. 

Councilmember Robbins said that for too long the communication has been one way and that the City Council needs to represent everyone not just an elite group.  The government has a distinct obligation to support the arts but the difference in rent constitutes more than a sweetheart deal, citing cost overruns of two million dollars, which could have been used for other things.  However, she wished them well and hopes that Ms. Moser would have better communication with the Mayor and Council than her predecessors. 

Councilmember Hoffmann said that she has always supported the notion of VisArts coming back to Town Center.  She said that, for every dollar spent on the arts, nine dollars is spent on commercial retail, restaurants, etc., and that a 9 to 1 ratio is well worth the expenditure. 

Councilmember Dorsey said that whenever this topic comes up, the discussion always leads to the need to support the arts.   This is what separates us from the animals.  When the lease was put together, they produced a board that has put together a fund raising program.  When he went to Annapolis to advocate for funding for the City, there, too, was VisArts asking for funding.  Councilmember Dorsey said that he is not looking to VisArts to make a big profit.  He is, however, for an organization that will “be there” and he thinks the Mayor and Council should do what they can to help them be there.  Councilmember Marcuccio said that, according to City law, the City could act when the best interest of the City is at stake.  She said she had added up the multiple costs related to construction costs, costs overruns, and lost revenue in the future and that, if the Mayor and Council vote for this, they are not acting in the best interest of the City. 

Mayor Giammo said he sees this through a different lens and has no doubt that VisArts will be wildly successful due to programmatic elements not available in other parts of the Metropolitan D.C. area.  The focus on the visual arts of the organization is unique in the Washington D.C. area and he is pleased to support it.  In terms of what government supports, Mayor Giammo said that some things don’t generate a penny, citing Montgomery County spending $27 million dollars to build a library plus hundreds of thousands of dollars in operating costs.  He said he sees this as not at all unlike the library.  The Mayor added that a good board is in place, fundraising is in place, and the Mayor and Council embarked on this journey four years ago and that VisArts is an important piece of a successful Town Center project. 

At this point, Councilmember Marcuccio asked for point of order stating that Councilmember Hoffmann should recuse herself as a former member of the RAP board.   Councilmember Hoffmann made a motion to approve and said that because VisArts will be a valuable member to Town Center and provide a great destination for young and old alike, and because VisArts has met the requirements as laid out in the MOU, she moved approval.  Councilmember Dorsey seconded the motion.   In discussion of the motion, he said that they have been marching along this path for a long time toward the revitalization of Town Center.  Councilmember Marcuccio said that it is so unbelievably irresponsible of the City to give away the ownership when the building was divided the way that it is.  

At that point, the vote was taken and the Agreement with was approved with Mayor Giammo, Councilmembers Dorsey and Hoffmann voting, “aye,” and Councilmembers Marcuccio and Robbins voting, “nay.”

Re:   Worksession regarding the Refuse and Recycling Program

Mayor Giammo said that staff will review the most recent data and asked what additional information the Mayor and Council might require to be able to take a position and the process to get that decision; that he was more interested in facilitating getting to a decision rather than promoting a position that may or may not be important in getting to the decision.  Mr. Ullery cited the closing of the record and said that the Mayor and Council received a full record of written and oral testimony and that a total of 113 people submitted testimony on the program.  Mr. Ullery said that the comments represented a full range of views on the proposed options.

Mayor Giammo asked the members of the Mayor and Council if they had questions about the decisions before them.  Councilmember Marcuccio said the Mayor and Council had been presented with a list of options.   In terms of where the Mayor and Council wanted to spend their energies, Mayor Giammo suggested doing a “straw” poll, item by item, of the refuse and recycling program if all were amendable.  He said this way the Mayor and Council could determine where they and staff needed to spend their time and their energy.  The Mayor and Council agreed to this approach. 

Single stream recycling – Councilmember Marcuccio wondered if everyone could agree on the concept of single-stream even if they did not agree on the methods to be used to implement single stream, such as the size of the containers.  Councilmember Dorsey agreed that something like the size of the carts could be decided later. 

Mayor Giammo commented that it is not as simple as it looks depending on how specific the Mayor and Council want to be.  There are a number of multiple decisions related to what would be “single stream,” including the containers already mentioned, frequency, etc. 

Director of Public Works Craig Simoneau said that there are costs associated with single stream recycling, that is, the cost of taking it to Elkridge for processing.  Councilmember Marcuccio said she would like to operate on the premise that refuse rates would stay essentially the same.  Mayor Giammo and Councilmember Hoffmann said that they could not support subsididizing the refuse fund with the general fund, but Councilmember Dorsey asked that the Mayor and Council express a preference for what they want to pay for and then discuss options for calculating how to pay for it.  In a “straw poll vote,” the Mayor and Council voted to support single stream, once per week, semi automated, with a choice of four carts.  The vote was 5-0.

Hazardous Waste.  The results of the straw poll were 5-0 for the current system of call on demand. 

Leaf Yard Waste – Councilmember Marcuccio mentioned bringing chippers back.  Councilmember Marcuccio said that citizens need to go through lots of preparation now to be able to put out clippings and cuttings from bushes and trees.  Mr. Simoneau said that they are trying to look at the use of the knuckleboom trucks to facilitate relaxing the current rules.  The straw vote on the seasonal leaf pick up was 5-0.  The vote on yard waste was 5-0 to keep the current system plus implementation of the knuckleboom trucks. 

Metal goods / White Goods/ Bulk Collection.  Staff will to sort out the materials, not residents.  Councilmember Marcuccio thinks it should be call on demand.  Councilmember Hoffmann said she thought that citizens should be asked to make a phone call, with the provision that the City help to educate the citizens about the types of materials allowed and the method and timing of pick-up.   In terms of calling limits, Mr. Simoneau said that Montgomery County allows five calls per year.  Councilmember Marcuccio said she does not favor creating bookkeeping burdens for call-in service.  There was discussion of limiting the call for service to six per year with the understanding that staff would evaluate the number of calls per resident received. 

Councilmember Marcuccio said she is concerned the people may feel that something has been taken away if they are limited in the number of calls.  Councilmember Hoffmann spoke of the possibility of the contractor who disposes his stuff regularly, using the City as a personal trash service for his business, but tended to agree with Councilmember Marcuccio that there should be a very generous limit. 

Mayor Giammo suggested that a system of making an appointment with a limit of six per year, while directing staff to present data in six months after implementation, while giving the Director of Public Works the authority to make exceptions on a case by case basis during that time.  Mr. Simoneau said that twelve months might be a better review period than six months.  There was some discussion about the amount that could be put out and Mr. Dorsey mentioned the example of an eviction.  Councilmember Marcuccio asked if bulk means anything that does not fit into a cart. 

By a vote of 5-0, the Mayor and Council voted to direct staff to institute a system of appointments for bulk collection with a limitation of six per year.  Staff are to report back in twelve months after implementation of call-in limit, with the Director of Public Works having the authority to make exceptions in the interim.  Staff were also directed to report back on per load quantity limit, when the timing is appropriate.

Curbside Pick-up –Mr. Simoneau said that, as envisioned, curbside would be the norm except when people with disabilities request backdoor.  A form would need to be filled out and this could occur on a case-by-case basis.  Councilmember Hoffmann said she wants to make sure that everyone’s needs are addressed with semi-automated and curbside, stressing its importance.  Mr. Simoneau said they would report back to the Mayor and Council in twelve months on how the exceptions were doing   Mr. Ullery said that they also have the comments from the first survey.  Mayor Giammo crafted a the basis for a straw vote on moving to a semi-automated method with four cart sizes to choose from, curbside, with exceptions for people with disabilities and, for those areas where curbside would not be practical, alternate locations for pick up on a case-by-case basis.    The straw vote on this issue was 5-0.

Twice per Week Pick Up – Councilmember Marcuccio stated that she wants two times per week, saying that people can opt out of putting out trash twice per week out if they do not need to do so.  Councilmembers Robbins and Dorsey also expressed their support for twice per week.  Councilmember Hoffmann wondered how the City would deal with people who might prefer once per week because they are on a limited budget.  Councilmember Marcuccio, wondered if there was a way to do this like we have for other things, like scholarships, without getting into variable pricing.  She used the example of people contributing to a special fund for this purpose on their bill. 

There was discussion about the issue of fairness of paying the same rate regardless of how much a person uses the system.  Councilmember Marcuccio said she thought it was fair, using the analogy of public schools that are paid for with tax revenue from everyone.  Mayor Giammo said that logic would suggest that twice per week would be sufficiently more expensive adding that the experiences from the once per week pilot participants showed that it worked well.  He also cited the example of Tacoma, Washington, which has implemented a very successful program. 

Councilmember Hoffmann said that she agreed that the experience with once per week was very positive, but that she was not sure that the City is ready for it so, at this time, she was inclined to support two times per week. 

Mayor Giammo said that, if the decision was made to go with two times per week with the semi-automated method, it would be costly to go back to once per week.  Mr. Simoneau said there would be some costs associated with new trucks and carts.  Councilmember Hoffmann said that the associated costs were part of the factors affecting her perspective.  City Manager Ullery said that the refuse fund was in a bad state now, given that there were no reserves.   Councilmember Hoffmann asked if costs were liable to go up significantly if the City were to make all of these changes but stayed at two times per week.  Mr. Ullery replied that the data suggests this but that staff does not have the actual figures.  

Councilmember Robbins said that she felt that one of the problems was the obsession with the pilot program and that making a change like that so quickly was serving to pit neighbor against neighbor.  She also said that there had been a tendency to label people as for or against, with the issues of the financial integrity of the program not measuring up as a reason to change things so dramatically.  Councilmember Robbins added that she thought that tonight’s discussion has been very valuable, adding that one of the aspects that had been made clear was that a “one size fits all” approach does not work for the whole City.  

Councilmember Dorsey wondered if, perhaps some of the things discussed tonight might make two times per week more palatable.  Councilmember Hoffmann said she would not be willing to vote on frequency until she sees the costs that would ensue.  In a straw vote, Councilmembers Marcuccio, Robbins and Dorsey voted to maintain two times per week.  Mayor Giammo voted for one time per week.  Councilmember Hoffmann abstained, saying that she would like to wait for some more information on the costs of twice per week collection before expressing an opinion. 

There was some discussion about the funding that might be necessary to maintain twice per week and the use of the General Fund for this when not everyone uses the City’s refuse system.

Volume based pricing – Moving on to the issue of volume-based pricing, the straw vote was 5-0 against this concept, maintaining a single rate. 

Trash Holidays – Mr. Simoneau said he thinks that this issue is kind of a moot point, based on some of the other discussion, unless the Mayor and Council want recycling to be picked up after a holiday.  There was consensus, with a straw vote of 5-0, for keeping the current system and reporting back to the Mayor and Council on both refuse and recycling.

Number of Carts for Trash – There was discussion regarding a two-cart limit for refuse and a two-cart limit for recycling per household, with exceptions pending the approval of Mr. Simoneau.  The vote on this was 5-0.

Mr. Ullery mentioned that the pilot would continue to operate until a final decision about the future is made.  Mr. Ullery said that staff would take what was heard tonight, and prepare a budget, an implementation plan, and rates based on the results of the various straw votes taken this evening.  He asked the Mayor and Council to give staff a few weeks to compile the information.  Mr. Simoneau said that any changes would result in a need for an overall implementation plan, stressing that the citizen education process is critical and would continue.  Councilmember Marcuccio asked if tonight’s information would be posted on the City’s website and the process with the workers.   Mr. Simoneau said that he would continue to address the issue of communication with the workers to get them reengaged in the process. 

Re: Future Agendas

Councilmember Dorsey reiterated his desire to see more opportunities for Citizens’ Forum. 

Re: Adjournment