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HomeMy WebLinkAbout02-05-2001 Minutes MINUTES MAYOR AND COMMON COUNCIL AND COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO JOINT REGULAR MEETING FEBRUARY 5, 2001 COUNCIL CHAMBERS The joint regular meeting of the Mayor and Common Council and Community Development Commission of the City of San Bernardino was called to order by Mayor Pro Tem Lien at 8:14 a.m., Monday, February 5, 2001, in the Council Chambers of City Hall, 300 North "D" Street, San Bernardino, California. ROLL CALL Roll call was taken by City Clerk Clark with the following being present: Mayor Pro Tern Lien; Council Members Estrada, Lien, McGinnis, Schuetz, Suarez, Anderson, McCammack; City Attorney Penman, City Clerk Clark, City Administrator Wilson. Absent: None. RECESS MEETING - CLOSED SESSION (Discussed later in the meeting. pages 28 & 36) (1) At 8:14 a.m., the Mayor and Common Council and Community Development Commission recessed to closed session for the following: Pursuant to Government Code Sections: A. Conference with legal counsel - existing litigation - pursuant to Government Code Section 54956.9(a): Highland Hills Homeowner Association v. City of San Bernardino, et al. - San Bernardino Superior Court Case No. 241464; Soliman v. City of San Bernardino - United States District Court Case No. EDCV 00-00301 V AP; William W. McDonald v. City of San Bernardino - Workers' Compensation Appeals Board Case Nos. RlV 0028929 and RIV 0030364; San Bernardino Economic Development Agency v. Johu Borba dba Court Street Bar & Grill - San Bernardino Superior Court Case No. SCVSS 67468. 1 2/5/2001 B. Conference with legal counsel - anticipated litigation - significant exposure to litigation - pursuant to subdivision (b) (1), (2), (3) (A-F) of Government Code Section 54956.9: Evacuees - Cypress Inn Mobile Home Park 2057 North Mt. Vernon Avenue C. Conference with legal counsel - anticipated litigation - initiation of litigation - pursuant to subdivision (c) of Government Code Section 54956.9. D. Conference with legal counsel - personnel - pursuant to Government Code Section 54957. E. Closed session with Chief of Police on matters posing a threat to the security of public buildings or threat to the public's right of access to public services or public facilities - pursuant to Government Code Section 54957. F. Conference with labor negotiator - pursuant to Government Code Section 54957.6. G. Conference with real property negotiator - pursuant to Government Code Section 54956.8. CLOSED SESSION At 8:14 a.m., Mayor Pro Tern Lien called the closed session to order in the conference room of the Council Chambers of City Hall. ROLL CALL Roll call was taken by City Clerk Clark with the following being present: Mayor Pro Tem Lien; Council Members Estrada, Lien, McGinnis, Schuetz, Suarez, Anderson, McCammack; City Attorney Penman, City Clerk Clark, City Administrator Wilson. Absent: None. Also present: Senior Assistant City Attorneys Carlyle and Simmons, Deputy City Attorney Barnes, and Administrative Operations Supervisor Anderson, City Attorney's Office. 2 2/512001 READING OF RESOLUTIONS & ORDINANCES Deputy City Clerk Hartzel read the titles of all the resolutions and ordinances on the regular agenda of the Mayor and Common Council and Community Development Commission while the Mayor and Council and Community Development Commission were in closed session. DIRECTOR OF HUMAN RESOURCES RAY A, WORKERS' COMPENSATION SUPERVISOR HAYNES & SPECIAL COUNSEL KUNTZ ARRIVED At 8:23 a.m., Director of Human Resources Raya, Workers' Compensation Supervisor Haynes, and Special Counsel Kuntz arrived at the closed session. DIRECTOR OF HUMAN RESOURCES RAYA, WORKERS' COMPENSA TION SUPERVISOR HAYNES & SPECIAL COUNSEL KUNTZ EXCUSED At 8:29 a.m., Director of Human Resources Raya, Workers' Compensation Supervisor Haynes, and Special Counsel Kuntz left the closed session. ADJOURN CLOSED SESSION At 8:37 a.m., the closed session adjourned to 9 a.m. in the Council Chambers of City Hall. RECONVENE MEETING At 9:02 a.m., Mayor Pro Tem Lien reconvened the joint regular meeting of the Mayor and Common Council and Community Development Commission. ROLL CALL Roll call was taken by City Clerk Clark with the following being present: Mayor Pro Tem Lien; Council Members Estrada, Lien, McGinnis, Schuetz, Suarez, Anderson, McCammack; City Attorney Penman, City Clerk Clark, City Administrator Wilson. Absent: None. INVOCATION: The invocation was given by Father Barnabas Laubach of St. Bernardine's Medical Center. PLEDGE OF ALLEGIANCE The pledge of allegiance was led by Saul Ramirez, a fifth-grade student at Bradley Elementary School. 3 2/5/2001 APPOINTMENT - CLAUDE DIGGS - BOARD OF POLICE COMMISSIONERS - COUNCIL MEMBER ANDERSON (2) Mayor Valles submitted a staff report dated January 30, 2001, recommending the appointment of Claude Diggs to the Board of Police Commissioners as requested by Council Member Anderson. Council Member Estrada made a motion, seconded by Council Member Suarez, and unanimously carried, that the Mayor and Common Council approve the appointment of Claude Diggs to the Board of Police Commissioners as requested by Council Member Anderson. Mr. Diggs accepted his certificate of appointment from Council Member Anderson. PRESENT A nONS (3) No presentations were made during this meeting. ANNOUNCEMENTS-GEORGESCHNARRE (4) George Schuarre, newly-elected President of the San Bernardino Area Chamber of Commerce, spoke to the Council regarding his goals for the Chamber, including increasing the membership by 15 percent, fixing the parking lot at the Sixth Street Chamber office and getting their computer "up to snuff" and on line, and sponsoring a couple of fundraisers. He noted that each year the Chamber honors our law enforcement officers and this year they will begin a program to honor our firefighters as well. ANNOUNCEMENTS - LARRY QUIEL (4) Larry Quiel, Vice President in Charge of Business Support for the San Bernardino Area Chamber of Commerce, announced several upcoming events including a program on Tuesday, February 15 at 7:30 a.m. at the Chamber regarding activities at the San Bernardino International Airport; another meeting on Tuesday, February 20 at 7:30 a.m. pertaining to Workers' Compensation; the State of the City address by Mayor Valles on Tuesday, February 27, at 7:30 a.m. at the Radisson Hotel and Convention Center; the Chamber's first annual "Casino Night" to be held on Thursday, March 8, from 5-9 p.m. at the San Bernardino International Airport; the Miss San Bernardino Scholarship Pageant to be held Saturday, March 24, at the California Theater; and the 40" Annual Headdress Ball scheduled for Saturday, March 31. 4 2/5/2001 MOMENT OF SILENCE Mayor Pro Tem Lien announced that over the weekend the father of Debra Daniel, Assistant to the Mayor, had passed away and asked for a moment of silence. ANNOUNCEMENTS - COUNCIL MEMBER McCAMMACK (4) Council Member McCarnmack congratulated the five scholarship recipients of the Black Cultural Foundation and commended the Foundation on the Black History Parade held in the city. She also thanked those volunteers who have been working to gather signatures for the referendum drive which challenges the action recently taken by the Council to repeal a section of the Municipal Code which requires City Attorney approval for the Council to seek and obtain outside legal counsel, stating that if anyone wanted to sign the petitions they should come to Express Printing/Apple Tax Service at 372 West Highland Avenue or to the Manpower office, 988 North "D" Street, or they may call 883-0766 or 886-8677 for more information. ANNOUNCEMENTS - COUNCIL MEMBER ANDERSON (4) Council Member Anderson stated that the recent San Bernardino Police Department Reserve Unit A wards Banquet was very well done; and noted that she had recently attended a Zydeco dance where there was very enjoyable music performed by the Swampgaters and tasty traditional Louisiana foods. Mrs. Anderson stated that many of the people she has been talking with are questioning what is going on in the City of San Bernardino and indicating that they want representatives who will promote the people's interests and not their own agendas. ANNOUNCEMENTS - COUNCIL MEMBER SUAREZ (4) Council Member Suarez wished Assistant Police Chief Harp a happy retirement, and commented that he was honored to have been chosen as one of the Rotary International Members to attend an event over the past weekend in Mexicali, Mexico, where he met Mr. Frank Devlyn, the International President of Rotary International. ANNOUNCEMENTS - COUNCIL MEMBER LIEN (4) Council Member Lien stated that she had attended the grand opening of the Success Center at St. John's Episcopal Church, one of the neighborhood homework centers being established in the city to partner in a program that will provide after- school care in the neighborhoods for those children who choose not to stay and receive after-school care at their schools. She also advised that the L.A. Marathon is only a month away, and the City team is coming along very well in training for this event. 5 2/5/2001 Ms. Lien stated that she, too, has had many conversations with her constituents and has assured them that she heard their vote on Measure M, and she respects that they want our City Charter as is and that they want their elected City Attorney. She has assured them that she shares that feeling--that these issues that the City is having are minor and should not be interpreted as the Council not having heard what their constituents have told them through their vote on Measure M. ANNOUNCEMENTS - COUNCIL MEMBER McGINNIS (4) Council Member McGinnis stated that he had a lot of fun at the Black History Parade and commended the management of Crabby Bob's on their new restaurant. ANNOUNCEMENTS - COUNCIL MEMBER ESTRADA (4) Council Member Estrada thanked all of the people involved in coordinating the briefmg at Mitla's Restaurant regarding the expansion of Interstate 215. She advised that the state has assured that the funds are in place for the work that is currently being done as well as work that will continue to be done on Interstate 215. Last week representatives were told that the state is in the process of getting the design work done for the expansion between Mill Street and Baseline, which is very important, in that for the fust time since the construction of 1-215, the city will have off-ramps going to the west side of San Bernardino--especially on Fifth Street. She advised that work on the Mt. Vernon bridge is coming along in terms of the design, as is the work on the depot. She stated that these are very important projects that are moving along and hopefully will come to completion in a couple of years. ANNOUNCEMENTS - MAYOR PRO TEM LIEN (4) Mayor Pro Tem Lien made the following announcements on behalf of Mayor Valles: . She (Council Member Lien) attended a meeting of the State Department of Housing and Community Development's Loan and Grant Committee where they voted to select San Bernardino as one of six cities to receive a grant through its Community Code Enforcement Pilot Program. Of the 36 cities and counties that applied for this grant, San Bernardino's application ranked number one. The $357,000 grant will be used to add two new code officers that will work in the NIP areas on a proactive basis. She thanked Glenn Baude, Director of Code Compliance, and Lori Sassoon and Teri Baker of the City Administrator's Office for their efforts in securing this grant. 6 2/5/2001 . In celebration of Black History Month, the Feldheym Central Library invites all children to a free performance of Timeless Tales of Wonder to be held on Saturday, February 10 at 2 p.m. in the Children's Room. Leslie Perry, a well-known and respected storyteller, will perform a selection of African and African-American folktales. . She extended the City's congratulations to Frank Keller and the crew at KCSB's Channel 3 for winning an award for "Court Community Outreach and Education through Countywide Public Service Announcements. " Ms. Lien made the following announcements regarding this month's public works forecast: . The Mt. Vernon Master Planned Storm Drain, between Baseline and 16th Streets, should be completed in a few weeks; construction has begun on the State Street Project, Phase I between Baseline Street and the new high school. Also, the City's funding request for the construction of State Street between the new high school and Fifth Street has been supported by SANBAG's Policies and Program Committee and is scheduled for consideration by the SANBAG Board on February 7. . Projects just starting include the second phase of the Downtown Infrastructure Improvement Program, including sidewalk repairs and access ramp improvements; and the Otto Gericke/Art Townsend Drive Street Improvement Project. . Also, the removal of hazardous material and debris at the Santa Fe Depot is well underway. The Citywide Miscellaneous Guardrail Repair Project is scheduled to begin late this month contingent upon Council approval; the associated work in the Arden/Guthrie area should be completed next week; and in the Fifth Ward the contractor is currently removing and replacing deteriorated asphalt areas in Phase 10 of the Slurry Seal Project. ANNOUNCEMENTS - CITY ATTORNEY PENMAN (4) City Attorney Penman stated that it had been suggested to him that when the Council took the action they did last month, they may not have been aware that for nine years the City Attorney's Office has made the decisions on the relocation of people evacuated from unsafe housing. He reviewed the procedure used by his office for the first seven years and provided the Mayor and Council with copies of four randomly selected inter-office memorandums (which his office began using in 1999 to make the relocation requests), which he read into the record. He stated that he realized that this was the first time the Council had been given any documentary evidence of a long- 7 2/5/2001 standing practice in this City. He stated that he did not know whether it would have made any difference in the action they recently took if they had known this information; however, he thought it would be appropriate to share some of these documents with the Council. ANNOUNCEMENTS - CITY ADMINISTRATOR WILSON (4) City Administrator Wilson formally introduced James Funk, newly-appointed Director of Development Services, to the Council. Mr. Funk stated he was very happy to have been appointed, that he was very impressed with the quality of the City's staff, and he looked forward to speeding up the development review process. ANNOUNCEMENTS - CITY CLERK CLARK (4) City Clerk Clark stated she and Council Member Suarez were part of a delegation of the Rotary Breakfast Club who went to Mexicali, Mexico, to attend a Rotary dinner where the International President of Rotary was the main speaker. She stated she was extremely impressed by his ability to deliver his speech bilingually and flawlessly, as he spoke of the importance of Rotary worldwide and what Rotary does to bring communities together to work for projects that will benefit the communities, and how we have so much in common with our border cities. He stressed the importance of working together regardless of race, creed, gender, etc. WAIVE FULL READING OF RESOLUTIONS & ORDINANCES (5) Council Member Estrada made a motion, seconded by Council Member Suarez, and unanimously carried, that full reading of the resolutions and ordinances on the regular agenda of the Mayor and Common Council/Community Development Commission be waived. CLAIMS & PAYROLL (7) Council Member Estrada made a motion, seconded by Council Member Suarez, and unanimously carried, that the claims and payroll and the authorization to issue warrants as listed on the memorandum dated January 25,2001, from Barbara Pachon, Director of Finance, be approved. 8 2/5/2001 2 PERSONNEL ACTIONS (8) Council Member Estrada made a motion, seconded by Council Member Suarez, and unanimously carried, that the personnel actions submitted by the Chief Examiner dated January 30, 2001, in accordance with Civil Service rules and Personnel policies adopted by the Mayor and Common Council of the City of San Bernardino, be approved and ratified. RATIFY ACTION TAKEN AT MAYOR & COUNCIL MEETING OF JANUARY 29, 2001 - ADOPTION OF RESOLUTION NO. 2001-27 - AUTHORIZING EXECUTION OF AGREEMENT BETWEEN AMERICAN MEDICAL RESPONSE (AMR) & CITY OF SAN BERNARDINO FIRE DEPARTMENT PRE-HOSPITAL PARAMEDIC SERVICE (9) City Clerk Rachel Clark submitted an interoffice memorandum dated February 1, 2001, addressed to the Mayor and Common Council regarding ratification of the action taken relative to the adoption of Resolution No. 2001-27. Council Member Estrada made a motion, seconded by Council Member Suarez, and unanimously carried, that the Mayor and Common Council ratify action taken by the Mayor and Common Council on January 29,2001, approving Resolution No. 2001- 27, which authorized the Mayor to execute an agreement between American Medical Response and the City of San Bernardino Fire Department for Pre-Hospital Paramedic Service. RES. 2001-28 - RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE MAYOR OR HER DESIGNEE TO EXECUTE PROGRAM SUPPLEMENT AGREEMENT WITH THE STATE OF CALIFORNIA FOR SAN BERNARDINO SANTA FE DEPOT REHABILITATION, MT. VERNON AVENUE BRIDGE REPLACEMENT; AND FUND TRANSFER AGREEMENT FOR SEISMIC RETROFIT OF THE CITY OF SAN BERNARDINO'S FIVE-LEVEL PARKING STRUCTURE. (11) RES. 2001-29 - RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AWARDING A CONTRACT TO ALLAN FENCE COMPANY, A DIVISION OF HUBBS & FERRANTE FOR GUARDRAIL IMPROVEMENTS AT VARIOUS LOCATIONS, PER PLAN NO. 10179. (12) 9 2/5/2001 Council Member Estrada made a motion, seconded by Council Member Suarez, that said resolutions be adopted. Resolution Nos. 2001-28 and 2001-29 were adopted by the following vote: Ayes: Council Members Estrada, Lien, McGinnis, Schuetz, Suarez, Anderson, McCarnmack. Nays: None. Absent: None. AUTHORIZE PROPOSED VACATION PORTION OF NORTHWESTERLY SIDE OF UNIVERSITY PARKWAY, NORTHEASTERLY OF KENDALL DRIVE - APPROVE PLAN NO. 10210 (13) William Woolard, Interim Director of Development Services, submitted a staff report dated January 23, 2001, regarding authorization to proceed with the proposed vacation of a portion of the northwesterly side of University Parkway, northeasterly of Kendall Drive, and approval of Plan No. 10210. Council Member Estrada made a motion, seconded by Council Member Suarez, and unanimously carried, that the Director of Development Services and the City Clerk be authorized to proceed with the vacation of a portion of the northwesterly side of University Parkway, northeasterly of Kendall Drive; and that Plan No. 10210 showing the proposed vacation be approved. SET LUNCHEON WORKSHOP - MARCH 5, 2001 - 12 NOON - ECONOMIC DEVELOPMENT AGENCY BOARD ROOM PROPOSED PROPOSITION 12 - STATE BOND INITIATIVE SPENDING PLAN (14) Annie F. Ramos, Director of Parks, Recreation and Community Services, submitted a staff report dated January 16, 2001, recommending that a workshop be scheduled for March 5, 2001, to receive information regarding the proposed Proposition 12 State Bond Initiative Spending Plan. Council Member Estrada made a motion, seconded by Council Member Suarez, and unanimously carried, that a luncheon workshop be set for 12 noon, March 5, 2001, at the Economic Development Agency Boardroom to receive information regarding the proposed Proposition 12 State Bond Initiative Spending Plan. RES. 2001-30 - RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF A PURCHASE ORDER BETWEEN THE CITY OF SAN BERNARDINO AND HOLLAND-LOWE CONSTRUCTION, INC. FOR PAVEMENT REPAIRS ON HOSPITALITY LANE BETWEEN WATERMAN AVENUE AND HARRIMAN PLACE. (15) 10 2/5/2001 Council Member Estrada made a motion, seconded by Council Member Suarez, that the Mayor and Common Council authorize the Director of Finance to amend the FY 2000/2001 budget and transfer $80,000 from Account No. 001-402-5111 to Account No. 001-402-5502, Contractual Services; and that said resolution be adopted. The motion carried and Resolution No. 2001-30 was adopted by the following vote: Ayes: Council Members Estrada, Lien, McGinnis, Schuetz, Suarez, Anderson, McCarnmack. Nays: None. Absent: None. RES. 2001-31 - A RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO ADOPTING THE CITY OF SAN BERNARDINO MUNICIPAL WATER DEPARTMENT RECORDS RETENTION SCHEDULE. (16) Council Member Estrada made a motion, seconded by Council Member Suarez, that said resolution be adopted. Resolution No. 2001-31 was adopted by the following vote: Ayes: Council Members Estrada, Lien, McGinnis, Schuetz, Suarez. Anderson, McCarnmack. Nays: None. Absent: None. COUNCIL MINUTES (6) City Clerk Clark advised that although it had been anticipated that the minutes of December 4, 2000 would be finalized and ready for adoption, this was not the case, and she requested that said minutes be continued to the Mayor and Council meeting of February 20, 2001. Council Member Anderson made a motion, seconded by Council Member Suarez, and unanimously carried, that the minutes of the following meetings of the Mayor and Common Council/Community Development Commission of the City of San Bernardino be approved as submitted in typewritten form; and that the minutes of December 4, 2000, be continued to the Mayor and Council meeting of February 20, 2001: December 1, 2000; January 16, 2001. RES. 2001-32 - RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING SUBMITTAL OF AN APPLICATION FOR GRANT FUNDING UNDER THE COMMUNITY CODE ENFORCEMENT PILOT PROGRAM. (10) 11 2/5/2001 Council Member Estrada noted that there was an error made on page 2 of the application relative to the amounts for matching funds; and City Administrator Wilson stated that he would see that it was corrected. Council Member Estrada made a motion, seconded by Council Member Anderson, that said resolution be adopted. Resolution No. 2001-32 was adopted by the following vote: Ayes: Council Members Estrada, Lien, McGinnis, Schuetz, Suarez, Anderson, McCarnmack. Nays: None. Absent: None. INCREASE SALARIES - ASSOCIATE PLANNER, ASSISTANT PLANNER, CONSTRUCTION ENGINEER - DEVELOPMENT SERVICES DEPARTMENT (17) Edward S. Raya, Director of Human Resources, submitted a staff report dated January 9, 2001, regarding an increase to the salaries for the positions of Associate Planner, Assistant Planner, and Construction Engineer in the Development Services Department. Council Member McCammack made a motion, seconded by Council Member Anderson, and unanimously carried, that the Mayor and Common Council approve salary increases for the Associate Planner to Range 1435, $3,886-$4,724/month; for the Assistant Planner to Range 1416, $3,535-$4,297/month; for the Construction Engineer to Range 2469, $4,604-$5,597/month; and that the Human Resources Department be directed to update Resolution No. 6413, Section Eleven, to reflect these particular actions. REORGANIZE - PUBLIC SERVICES DEPARTMENT - DELETE ONE ADMINISTRATIVE OPERATIONS SUPERVISOR II & ONE ADMINISTRATIVE ANALYST II POSITIONS - ESTABLISH ONE TYPIST CLERK II & ONE SENIOR ADMINISTRA TIVE ANALYST POSITIONS (18) Edward S. Raya, Director of Human Resources, submitted a staff report dated January 8, 2001, regarding reorganization of the Public Services Department. Council Member Anderson made a motion, seconded by Council Member McCarnmack, and unanimously carried, that the Mayor and Common Council delete one Administrative Operations Supervisor II position, Range 4426, $3,716- $4,516/month (General Fund), delete one Administrative Analyst II position, Range 4406, $3,363-$4,088/month (50/50 Refuse and Sewer Funds); establish one Typist Clerk II position, Range 1267, $1,681-2,044/month (General Fund); establish one Senior Administrative Analyst position, Range 4446, $4,105-$4,990 (50/50 Refuse and 12 2/5/2001 Sewer Funds); and that the Human Resources Department be directed to amend Resolution No. 89-129 and Resolution No. 6413, Section Ten, to reflect these particular actions. RES. 2001-33 - RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE MAYOR TO EXECUTE A SERVICE AGREEMENT WITH BIG RED APPLE, REGARDING THE MARKETING AND MANAGEMENT OF THE SAN BERNARDINO STADIUM. (19) City Administrator Wilson advised that this would be the third year of the contract with Big Red Apple. He stated that the contract does require minimum revenue guarantees, that it has been a good relationship for the last two years, and staff was recommending a one-year extension to the agreement. Council Member McGinnis stated he did not know how Big Red Apple would reach the goals set for this year in light of the fact that the City no longer allows leasing the stadium parking lot. He stated he hoped that at least enough money would be generated to cover the salary the City will be paying to the promoter. Council Member McCarnmack stated that during the discussion at the committee level they went over with a fme-tooth comb the proposed plans for collecting revenues and promoting the stadium, and the committee also offered other revenue generating ideas, so that the stadium's revenue creation will surpass this past year, even without the parking lot revenue. City Administrator Wilson stated that Mr. Lewis had provided the committee with some projections of activities planned at the stadium including some concerts, community events, filming options, high school football, some religious concerts, and a couple of car sales. He also advised that the Ways and Means Committee had requested that staff provide them with information regarding the impact of the stadium's lease on the City's ability to generate additional revenue at the stadium, and this would be explored further at a future Ways and Means Committee meeting. Council Member Anderson made a motion, seconded by Council Member Suarez, that said resolution be adopted. Resolution No. 2001-33 was adopted by the following vote: Ayes: Council Members Estrada, Lien, McGinnis, Schuetz, Suarez, Anderson, McCarnmack. Nays: None. Absent: None. 13 2/5/2001 RES. 2001-34 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN AGREEMENT WITH BURRTEC WASTE INDUSTRIES, INC., FOR THE PROVISION OF COMMINGLED RECYCLABLES PROCESSING. (Continued from January 22,2001) (20) Lynn Merrill, Director of Public Services, submitted a memorandum dated February 5, 2001, addressed to the Mayor and Common Council, regarding Agenda Item #20 - Commingled Recyclable Processing Update. He reviewed the changes made to the agreement, noting that paragraph 26 had been modified. He stated that the contractor had guaranteed the floor pricing as presented in their proposal and a 75 percent minimum recovery rate of the residential commingled recyclables. He added that their guarantee would be secured by a financial assurance of $150,000 in the form of a performance bond, letter of credit or interest bearing account in the name of the City, to be forfeited in the event that the contractor defaults on these specific guarantees. City Clerk Clark administered the oath to Mr. Tom Vogt, President of Taormina Industries, LLC, that he would provide truthful testimony. Mr. Vogt stated that two weeks ago he had indicated his concerns regarding the revised bid by Burrtec, and at that time his concerns were twofold. He was concerned that the recovery rate, if it were to drop below the current level of 75 percent, could cost the City a tremendous amount of money; and secondly, if the characterization should change, that would also cost the City money. He stated that from what he had just heard, it sounded like a portion of the issues had been resolved--that a guaranteed recovery rate of 75 percent was a step in the right direction. He advised the Council to keep in mind that the characterization or make-up of the material that comprises that 75 percent is very important; that over 60 percent of the make-up of the material is based on two commodities--newspaper No. 6 and mixed paper--and if those commodities change in characterization significantly, the revenue 10 the City will drop. Mr. Vogt recommended that if the City was going to move forward with the Burrtec proposal that part of the performance guarantee also include that the characterization not change, in addition to the recovery rate of 75 percent, because if it does change the City will lose revenue and be below the guarantees that Taormina made in their proposal. It was noted, however, that the current contract that the City has with Taormina does not include a guarantee of the characterization. Discussion ensued regarding various aspects of the proposed contract, and Mr. Merrill answered questions regarding the current characterization of the recyclables, the overall recovery rate, how the payment to the City would be computed, etc. Concern was expressed as to whether the $150,000 bond was sufficient enough to cover the City 14 2/5/2001 if there should be a 10-15 percent fluctuation in the recovery rate, and Mr. Merrill explained the steps staff would take if the City encountered such a situation. Council Member McCarnmack made a motion, seconded by Council Member Anderson, that said resolution be adopted. Resolution No. 2001-34 was adopted by the following vote: Ayes: Council Members Estrada, Lien, McGinnis, Schuetz, Suarez, Anderson, McCammack. Nays: None. Absent: None. AUTHORIZE - CITY CLERK TO OBTAIN OUTSIDE SPECIAL COUNSEL SERVICES - PREPARE BALLOT TITLE & SUMMARY- STATUTORY INITIATIVE MEASURE - ESTABLISH CHAPTER 2.20 IN SAN BERNARDINO MUNICIPAL CODE - REGARDING CITY ATTORNEY APPROVAL TO RETAIN OUTSIDE SPECIAL COUNSEL SERVICES (21) James F. Penman, City Attorney, submitted a staff report dated February 1, 2001, regarding authorization for the City Clerk, subject to the recommendation of the City Attorney, to retain outside special counsel services for the purpose of preparing a ballot title and summary of a statutory initiative measure establishing Chapter 2.20 in the San Bernardino Municipal Code relating to City Attorney approval to retain outside special counsel services. Mr. Penman also submitted an inter-office memorandum dated February 2, 2001, addressed to the Mayor and Common Council regarding Ballot Title and Sununary for Initiative-Agenda Item #21. City Attorney Penman reviewed the contents of the staff report with the Council. He advised that regardless of the results of the referendum signature gathering effort currently taking place in the city, it is expected that an initiative drive would soon commence to place before the voters a measure to establish by a vote of the people the equivalent of what is now in Chapter 2.20 of the San Bernardino Municipal Code. Mr. Penman advised that when an initiative is filed, per Section 9203 of the California Elections Code, the elections official (City Clerk) must immediately forward a copy of the proposed measure to the City Attorney; and the City Attorney then has 15 days to provide and return to the elections official a ballot title and sununary of the proposed measure. In this case, since the wording of Chapter 2.20 deals exclusively with the City Attorney's Office, there could be the appearance of a conflict if the City Attorney were to prepare the ballot title and summary of the proposed measure. Therefore, the City Attorney's Office was recommending that the City Clerk be authorized to retain special counsel for this purpose. Mr. Penman also advised that in 15 2/5/2001 an effort to remove any appearance of a conflict of interest, he had asked Attorney Timothy Sabo to be present to answer any questions the Council might have. Discussion ensued regarding the definition of referendum versus initiative, and the fact that, although in this case they are dealing with the same subject, they serve two different purposes. According to Mr. Penman, the referendum freezes the action taken by the Council to repeal Municipal Code Section 2.20. He stated that if the referendum process is successful and the Council repeals the ordinance which repealed Section 2.20, that would be the end of it. If, however, the Council does not repeal the ordinance, they are then required to place on the ballot at the next general election (or call a special election) the question of whether or not the referendum should be granted, thus allowing the voters to make the decision on whether the Council's action should be overturned. An initiative, however, is the process by which voters may write an ordinance for the City and present it to the Council for consideration. The Council then has the choice of enacting the proposed ordinance, or they can choose not to enact the ordinance and put it to a vote of the people. If the people vote to retain Section 2.20, the Mayor and Council could not amend or repeal that ordinance without a vote of the people. Mr. Penman pointed out that if an initiative is filed, there would be only 15 days for the selected attorney to provide a ballot title and sununary of the proposed measure. If the initiative were to be filed this week, the clock would start ticking, yet there would not be another Council meeting until February 20. This would necessitate calling a special meeting of the Mayor and Council to authorize the City Clerk to hire outside counsel for this purpose, unless the Council waited until February 20 to take action, and this would mean that the selected attorney would have only a couple of days to provide the title and write the sununary. The Council questioned why this action should be taken now, as it seemed premature since nothing regarding an initiative had been brought forward. Council Member Suarez asked the City Clerk whether this would be her recommendation as well. City Clerk Clark distributed a document titled, "General Outline for Initiative Process" to the Council and verbally reviewed the process. She indicated that if the facts were as Mr. Penman stated, she would need to be prepared to send the notice of intention and request for ballot title and summary to legal counsel, and she would need the authorization of the Council to seek outside special counsel for that purpose. 16 2/5/2001 Council Member McCarnmack alleged that she had asked for information on the initiative process from the City Clerk at least three times, and she was very disappointed that it was now coming forward when she had requested the information as early as the 17th of January. Council Member Suarez stated that given the special circumstances, and the fact that something clearly needs to be done to prevent the appearance of a conflict by the City Attorney inasmuch as Section 2.20 concerns the powers of his office, he believed the Council should approve the authorization for the City Clerk to retain outside legal counsel. However, he also believed that the provision, "subject to the recommendation of the City Attorney" should be removed from the form motion to avoid any other appearance of a conflict. Council Member Suarez made a motion, seconded by Council Member Estrada, that the City Clerk be authorized to retain outside special counsel services for the purpose of preparing the ballot title and summary of a statutory initiative measure establishing Chapter 2.20 in the San Bernardino Municipal Code relating to City Attorney approval to retain outside special counsel services. City Attorney Penman noted that Section 2.20 of the Municipal Code requires inclusion of the language "subject to the recommendation of the City Attorney"; however, in this case, the recommendation of the City Attorney would be that the City Clerk find and retain outside special counsel for this purpose. He stated he is not recommending which outside counsel--that would be up to the City Clerk. Council Member McGinnis indicated that he did not want to take any action on this matter until somebody actually brought forth the notice of intention relative to the initiative; and if they did file their notice of intention, he did not see anything wrong with the City Attorney writing the summary statement. Council Member Schuetz stated that he saw no need for outside legal counsel unless it was an attorney of the City Clerk's choice, and he wanted to make sure that this was the intent of this action. City Attorney Penman reaffumed that although the language, "subject to the recommendation of the City Attorney" is required to be included in the motion pursuant to Municipal Code Section 2.20, the recommendation of the City Attorney would be that the Council permit the City Clerk to chose and hire outside legal counsel, thus relieving his office of the appearance of a conflict. He stated that he would also like the Council to hear briefly from Mr. Sabo. ]7 2/5/200 1 Council Member Estrada stated that since nothing had been served on the City thus far, this action did seem premature in nature, and she asked the City Clerk whether in her opinion the Council should approve this action at this time. She stated that if Mr. Penman did not know anything about the issue and someone came in and served the City Clerk notice that they were initiating an initiative petition, what action would the City Clerk take. City Clerk Clark stated that in normal circumstances, whether it be an initiative, a referendum, or a recall, her office would confer with the City Attorney's Office and would give them a heads up. In the case of an initiative, this would especially hold true, since in the initiative process the City Clerk is required to immediately send the proposed measure to the City Attorney upon receipt. City Attorney Penman pointed out that case law provides that the duties of the City Clerk are not discretionary, but rather ministerial, so as the City Clerk indicated, she would have to forward the initiative directly to his office. He would then declare the appearance of a conflict and send it back to her. He stated that the difference between a referendum and an initiative in terms of the appearance of a conflict, is that in the referendum process his office is giving legal advice on referendums in general; however, with an initiative, his office would have to prepare the title and the summary of the ordinance. He advised that the reason he believes his office should declare the appearance of a conflict is because his office would be involved so much more on the initiative versus the referendum. Council Member Schuetz stated that he did not want to spend money to hire outside legal counsel if it was not necessary, and questioned Mr. Sabo as to the 500- word summary and whether the City Attorney's Office is required to write something subjective, or whether they merely write something which states the title and what the ordinance says. He rephrased his question by asking, "what does the City Attorney have to do that could be subjective and tainted, so to speak, by the appearance of a conflict? " Special Counsel Sabo stated that reference to the 500-word summary is contained in Elections Code Section 9203, and that although the proponents can submit up to a 500-word summary of the measure (this is optional), it would be up to the City Attorney to actually take their prepared summary or write an independent one, which would be the official City Attorney analysis of the initiative measure. He pointed out that under Section 9203 it is mandatory that the City Attorney prepare both the ballot title and a not-to-exceed 500-word summary. Mr. Sabo read from Elections Code Section 9203 wherein it states, "In providing the ballot title, the city attorney shall give a true and impartial statement of the purpose of the proposed measure in such language that the ballot title shall neither 18 2/5/2001 be an argument, nor be likely to create prejudice, for or against the proposed measure." He stated that this is where you would get into the subjective test, such as which adjectives do you use and how strongly is it worded one way or the other. He advised that what Mr. Penman is saying is that this alone could create the conflict because it does involve his office; therefore, it should be someone independent who would use this same objective test. Council Member Estrada noted that if an initiative were to be filed, there would be two processes going on simultaneously, both dealing with the same issue, and she asked for an explanation as to how these two actions interface; or if they don't interface, what exactly would be going on. She pointed out that the referendum process has not yet been completed, and yet it appears that a second process (the initiative) would soon begin. She questioned the City Clerk as to whether both processes could be taking place simultaneously. City Clerk Clark noted that at the point the referendum is filed, her office has ten days in which to verify the signatures and then present a certificate of sufficiency or insufficiency, as the case may be. The City Charter has a provision that states that if the petition is insufficient, then the proponents have an additional ten days to amend the petition--and the City Clerk's Office would have another 10-day window in which to verify the amended petition. At that time, if the petition is sufficient, the Council would have to decide whether or not to repeal the ordinance that was enacted which repealed Section 2.20, or submit it to the voters at the next general election, or call a special election for that specific purpose. Mrs. Clark stated that if a Notice of Intention relative to an initiative were filed the next day (February 6, 2001) on the same issue, again, the 15-day clock would start with the preparation of the ballot title and summary. The ballot title and sununary would be returned to the City Clerk and the proponents would then go ahead and prepare the petition; however, they would have to publish a Notice of Intention before they start to circulate the petition. Once circulation of the petition begins, they would have 180 days (six months) to gather signatures. Ms. Estrada inquired what would happen if following the referendum, the Council decides to have a special election and put the matter on the ballot, but the initiative has already been started and is moving right along--how does that work? City Clerk Clark advised that you cannot have the same measure on the ballot within a 12-month period. She stated that it would seem to her that the appropriate time to commence the initiative would be if the referendum itself fails--that she had never heard of a situation like this and she would have to defer to legal counsel to find out if there was anything that would preclude a referendum and initiative being handled simultaneously. She stated that she knew there was a provision in the Code that states you can't have the same ordinance on the ballot more than once in a 12-month period. 19 2/5/2001 City Attorney Penman declared a point of order stating that this would not be true--that in the case of a referendum, the ordinance that would be on the ballot would be the ordinance that the Council adopted repealing Municipal Code Section 2.20. However, the initiative would be the exact wording of Section 2.20. He stated that the referendum and initiative are two different things--the purpose of one being to repeal the ordinance passed by the Council which repealed Section 2.20--to stop the action the Council took. The purpose of the initiative would be to establish an ordinance that the Mayor and Council cannot amend or repeal without the voters approval. He ascertained that these are two entirely separate legal issues. Mr. Penman pointed out that the Council would have an "out" in both cases if a sufficient number of signatures are obtained--that they could avoid the cost of a special election due to the referendum by simply repealing the ordinance that was passed repealing Section 2.20. In the case of the initiative, if sufficient signatures are gathered, the cost of a special election could be avoided by the Council enacting that ordinance themselves, in response to the voters' initiative. Council Member Suarez asked the City Clerk whether the motion he made needed to be amended to include the language which states, "as recommended by the City Attorney." Mrs. Clark stated that if she understood Mr. Penman to say that she would be able to select her own legal counsel, she would have no problem with reinserting that language into the motion. City Attorney Penman inquired whether Mr. Sabo had had an opportunity to read his memo to the Mayor and Common Council dated February 2, 2001, regarding Ballot Title and Sununary for Initiative-Agenda Item #21; and Mr. Sabo indicated he had read said memo. Mr. Penman asked Mr. Sabo to comment on the accuracy or inaccuracy of the last paragraph on page 1, where it states that, "Should the City Council decline to approve the action recommended on agenda item number 21, during the Council meeting scheduled for February 5, 2001, the Mayor and Council will be deemed to have waived any conflict, or the appearance thereof. The Office of the City Attorney will then proceed to prepare the ballot title and summary for the initiative petition that will be presented to the City Clerk next week. We do not recommend this waiver, however. " Mr. Sabo stated that he certainly believed that there was at least the appearance of a conflict--that there is some subjectivity as to how the ballot summary would be written. He stated that insofar as the "deeming to waive the conflict" is concerned, if there is no other Council meeting between now and the 20th of February, and if an 20 2/5/200 I initiative is submitted this week there simply would be no opportunity to retain an attorney, bring him up to speed, and expect him to have sufficient time remaining of the 15-day period to react and draft the necessary documents. He stated he certainly did not disagree with this, unless it was the choice of the Council to have a special meeting for this purpose; however, that would have to be done in time to allow the City Clerk to actually retain an attorney, and if there was no other meeting between today and February 20, any petition filed this week or early next week would not give another outside attorney time to review the matter and draft the necessary documents. Gil Navarro, Chairman of the local Mexican-American Political Association, spoke in opposition to this matter and urged a "no" vote by the Council. It was his opinion that Mr. Penman was trying to bully the Council into approving something where the clock had not even started ticking. Council Member Suarez amended his motion, seconded by Council Member Estrada, that the City Clerk be authorized, subject to the recommendation of the City Attorney, to retain outside special counsel services for the purpose of preparing the ballot title and summary of a statutory initiative measure establishing Chapter 2.20 in the San Bernardino Municipal Code relating to City Attorney approval to retain outside special counsel services. The motion carried by the following vote: Ayes: Council Members Estrada, Lien, Schuetz, Suarez, Anderson, McCarnmack. Nays: Council Member McGinnis. Absent: None. For clarification purposes, Council Member Estrada asked Special Counsel Sabo whether it was his opinion that this Council, by rescinding Municipal Code Section 2.20, had taken Charter authority or state statute authority from Mr. Penman as City Attorney. She rephrased her question, asking, "Isn't the only party that can take Charter authority away from Mr. Penman, the people?" Mr. Sabo stated that this was correct--if it was an amendment to the Charter, it would take the people to modify the Charter. Ms. Estrada continued, stating, "So by the Council rescinding Section 2.20, we did not take (away) any authority given to Mr. Penman's Office through the Charter." Mr. Sabo stated that this also was true--the ordinance was an ordinance which could be adopted, or did not need to be adopted, and it was not part of the Charter. Ms. Estrada then asked, "Is Section 2.20 part of the Charter?", and Mr. Sabo answered, "No, it is an ordinance." 21 2/5/2001 Ms. Estrada continued, stating, "And the only ones that can change the City Attorney's authority are the people, the voters of the city of San Bernardino, under the Charter; and his authority through state law, as City Attorney, was not affected by this either? " Mr. Sabo replied that "his (City Attorney's) other powers that remain in the Charter, were what is required by state law, and would not be affected--it only dealt with the one situation with retaining outside counsel." City Attorney Penman thanked the Council for taking this action, and gave each one a pin with a small replica of the City Attorney's badge on it, stating it was his hope they would be able to work together, isolating their differences, agreeing to differ on what they cannot agree on, and working ahead on everything else. ORD. MC-I092 - AN ORDINANCE OF THE CITY OF SAN BERNARDINO AMENDING SECTION 6.24.130 OF THE SAN BERNARDINO MUNICIPAL CODE, REGARDING DESIGNATED OFF-LEASH AREAS FOR DOGS IN PUBLIC PARKS. Final (22) Council Member Schuetz made a motion, seconded by Council Member McGinnis, that said ordinance be adopted. Ordinance No. MC-1092 was adopted by the following vote: Ayes: Council Members Estrada, Lien, McGinnis, Schuetz, Suarez, Anderson, McCammack. Nays: None. Absent: None. RECESS MEETING At 10:55 a.m., the meeting was recessed to 12 noon in the Economic Development Agency Boardroom. RECONVENE MEETING At 12: 15 p.m., Mayor Pro Tem Lien reconvened the joint regular meeting of the Mayor and Common Council and Community Development Commission. ROLL CALL Roll call was taken by City Clerk Clark with the following being present: Mayor Pro Tem Lien; Council Members Lien, McGinnis, Schuetz, Suarez, Anderson; Senior Assistant City Attorney Carlyle, City Clerk Clark, City Administrator Wilson. Absent: Council Members Estrada, McCammack. LUNCHEON WORKSHOP - 12 NOON - SOUTHERN CALIFORNIA EDISON ELECTRICITY CRISIS ISSUES ECONOMIC DEVELOPMENT AGENCY BOARDROOM (23) 22 2/5/2001 Ray R. Gonzalez, Area Manager for Southern California Edison, gave a presentation on electricity crisis issues. Mr. Gonzalez summarized the Federal Energy Regulatory Commission's fmdings and proposals, stating that the commission found that prices charged by generators and marketers are unjust and unreasonable. The Commission has proposed the following: . That IOUs (Independent Owner Utilities) no longer be required to buy from or sell into the California Power Exchange . Implementation of a temporary two year "soft-cap" on generation sales; . Deferred consideration of retroactive refund issues . Market participants must schedule 95 % of all transactions into the day-ahead markets . Restructure the CaI-ISO (Independent System Operator) Board of Directors According to Mr. Gonzalez, the California Public Utilities Commission Decision 01-01-018 allows PG&E and SCE to immediately increase rates for each customer by one cent/kwh and increases the range from 7-15% depending on customer rate group. The increase will provide $65 million per month in additional revenue, which will be applied toward energy procurement costs. The rate increase is the first in six years. He explained that when rolling blackouts occur they occur for one hour at a time and blackouts would be evenly dispersed. Mr. Gonzalez commented that Governor Davis had declared a state of emergency and is promoting energy conservation. He also stated that the Governor is currently negotiating with generators for long-term contracts and that the Governor signed three energy-related bills over a two-day period. Mr. Gonzalez stated that decisive action is needed to protect customers and insure system reliability. Mr. Gonzalez went on to explain actions that can be taken under California authority: . Order utilities to provide cost based rates . Eliminate mandatory buy/sell through PX . Implement rate stabilization plan that will insure steady, reliable rates going forward . Secure low cost, long term contracts . Take steps to accelerate development of new generation . Promote energy efficiency and conservation On the other hand, the Federal government can take action to do the following: . Rein in extreme wholesale power costs . Institute "hard" price caps 23 2/5/2001 . Federal Energy Regulatory Commission (or Federal Courts) can require power marketers and generators to issue refunds for excessive profits from unjust and unreasonable rates. Mr. Gonzalez suggested the following ways in which the City could assist in addressing the energy crisis: a) Contact Governor Davis and ask him to do the following: . Take action to insure there is a reliable source of electricity . Insure that electricity rates are stable and affordable b) Participate in energy conservation and load management programs c) Network with assigned SCE account team. He offered the following websites as possible sources for additional information on this topic: SCE: www.sce.com; California ISO: www.caiso.com; California Power Exchange: www.calpx.com; California Public Utilities Commission: wWW.cpuC.ca.gov; and the California Energy Commission: www.energy.ca.gov. No action was taken on this item. RECESS MEETING At 1:13 p.m., Mayor Pro Tem Lien recessed the meeting to 2 p.m. in the Council Chambers of City Hall. RECONVENE MEETING At 2:05 p.m., Mayor Pro Tem Lien reconvened the joint regular meeting of the Mayor and Common Council and Community Development Commission. ROLL CALL Roll call was taken by City Clerk Clark with the following being present: Mayor Pro Tem Lien; Council Members Lien, McGinnis, Schuetz, Suarez, Anderson, McCammack; Senior Assistant City Attorney Carlyle, Economic Development Agency Special Counsel Sabo, City Clerk Clark, Economic Development Agency Executive Director Van Osdel. Absent: Council Member Estrada. COMMUNITY DEVELOPMENT COMMISSION/SAN BERNARDINO JOINT POWERS FINANCING AUTHORITY/SAN BERNARDINO PARK ACQUISITION JOINT POWERS FINANCING AUTHORITY/SAN BERNARDINO ASSOCIATED COMMUNITIES FINANCING AUTHORITY - JOINT REGULAR MEETING At 2:05 p.m., Chairwoman Pro Tern Lien called to order the joint regular meeting of the Community Development Commission/San Bernardino Joint Powers Financing Authority/San Bernardino Park Acquisition Joint Powers Financing Authority/San Bernardino Associated Communities Financing Authority and Mayor and Common Council. 24 2/5/2001 RES. CDC/2001-7 - RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO APPROVING AND AUTHORIZING THE EXECUTIVE DIRECTOR TO EXECUTE AMENDMENT NO.1 TO DISPOSITION AND DEVELOPMENT AGREEMENT BY AND BETWEEN REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO AND HI-WAY AUTO RECYCLERS, LLC. (R24) Agency Executive Director Van Osdel advised that staff is recommending that the Community Development Commission grant a six-month extension of the due diligence period of the Disposition and Development Agreement between the Agency and Hi-Way Auto Recyclers, LLC. Council Member Schuetz made a motion, seconded by Council Member McGinnis, that said resolution be adopted. Resolution No. CDC/2001-7 was adopted by the following vote: Ayes: Council Members Lien, McGinnis, Schuetz, Suarez, Anderson, McCammack. Nays: None. Absent: Council Member Estrada. COUNCIL MEMBER ESTRADA RETURNED At 2:07 p.m., Council Member Estrada returned to the Council meeting and took her place at the Council table. A RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO, AS THE GOVERNING BODY OF THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, APPROVING THAT CERTAIN 2001 LEASE AGREEMENT (EAST VALLEY WATER DISTRICT) BY AND BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO AND EAST VALLEY WATER DISTRICT ON THE TERMS SET FORTH IN SUCH AGREEMENT. (R25) Note: The resolution was not distributed with the backup material and, therefore, will not be available for reference. Agency Executive Director Van Osdel advised that East Valley Water District attorneys had not finished their review of the agreement and requested that the matter be continued to the next meeting. 25 2/5/2001 Council Member Suarez made a motion, seconded by Council Member Anderson, and unanimously carried, that the matter be continued to the Mayor and Common Council/Community Development Commission meeting of February 20, 2001. APPROVE PLAN & FUND DOWNTOWN IMPROVEMENTS - DOLLAR HOUSING FUNDS (R26) Ann Harris, Agency Director of Business Retention, Recruitment and Revitalization, submitted a staff report dated January 29, 2001, regarding improvements to the downtown area. Ms. Harris reviewed the staff report with the Council and answered questions regarding same. Council Member Estrada advised that at the committee meeting she had raised a concern about using money from the Dollar Housing Funds, suggesting instead the possibility of using Community Development Block Grant (CDBG) funds over a three- year period to absorb the costs involved with the revitalization of Court Street Square. Council Member Lien questioned how much money staff expected to be in the Dollar Housing Fund this next year, and whether using these funds for the downtown improvements would leave an adequate amount for housing. She also questioned whether using CDBG funds for this kind of project would entail a myriad of federal guidelines since it is federal money. Maggie Pacheco, Agency Director of Housing and Community Development, advised that the Agency purchased approximately 52 one-dollar houses from the federal government and generated approximately $900,000 from that program. Approximately $500,000 of that money had been budgeted for Economic Development type of activities, which includes the downtown improvements. She stated that the future of the Dollar Funding Program is unknown because there really haven't been anyone-dollar homes available since the Agency purchased the 52 homes, which was over six months ago. Ms. Pacheco advised that CDBG funding was discussed at the Redevelopment Committee meeting and it is possible to utilize CDBG monies for some of the improvements listed in the staff report; however, certain guidelines would apply. She noted that CDBG funds must be used principally for capital improvements that are new- type projects--they can't be used for maintenance-type improvements. Also, anything over $2,000 would require appropriate bidding and a Davis-Bacon type of contract; unlike the One-Dollar proceeds which are unrestricted funds and have no requirement to comply with Davis-Bacon. 26 2/5/2001 Council Member Schuetz inquired as to the process and the timeline which would need to be followed if CDBG funds were going to be used, and whether the funds would have to come from next year's allotment. Ms. Pacheco answered in the affirmative, stating that staff is now working on next year's CDBG cycle, and if staff was planning to appropriate CDBG funds for this purpose, now would be the time to do it. She stated that it is anticipated that the recommendations and appropriations for next year's funding will be presented to the Redevelopment Committee in March, and at that time the Committee will review and determine if they should re-appropriate or recommend different activities to the Commission. Discussion ensued regarding the items listed in the staff report that would need to be done for revitalization of Court Street Square. The Council had questions as to whether certain items would be considered capital improvement-type activities or maintenance-type activities and what the possible cost of each item would be. Council Member Anderson stated that it would really clarify matters for the Council if they had a breakdown of the $200,000 as to the amount of money needed for each item listed. This might also help them to determine whether it is a new item or a maintenance item. Ms. Harris stated that she did have cost estimates on the items, and she had already had plans drawn up for the trellis; therefore, staff should be able to put together a budget with some pretty solid numbers. Council Member Schuetz suggested that once the estimate was put together and the various items had been earmarked as to which items are considered maintenance and which are considered new capital improvement, that the matter should then go back to the Redevelopment Committee for a decision. Discussion ensued regarding whether there was any urgency on this, and Ms. Harris advised that staff wanted to get this done before the season reopens in April. It was noted that the urgency part of the proposal is not maintenance, but the new trellis; therefore, it would be alright to go ahead and begin that part of the project, but the Council did want a breakdown for the remainder of the money. Council Member Estrada made a motion. seconded by Council Member Anderson, and unanimously carried, that the Community Development Commission approve the plan and the expenditure of $200,000 from Dollar Housing Funds for downtown improvements as listed in the staff report from Ann Harris dated January 29, 2001, with the caveat that the Council be given a budget which delineates the cost of each item. 27 2/5/2001 SENIOR ASSISTANT CITY A TTORNEY CARLYLE EXCUSED At 2:23 p.m., Senior Assistant City Attorney Carlyle left the Council meeting and was replaced by City Attorney Penman. APPROVE FORGIVENESS - COMMUNITY DEVELOPMENT BLOCK GRANT (CDBG) CAPITAL IMPROVEMENT LOAN - HOME OF NEIGHBORLY SERVICE (R27) Maggie Pacheco, Agency Director of Housing and Community Development, submitted a staff report dated January 29, 2001, regarding the forgiveness of a CDBG Capital Improvement Loan made to the Home of Neighborly Service. Agency Executive Director Van Osdel advised that the balance of the loan is approximately $11,652. City Attorney Penman stated that he was the director of the Home of Neighborly Service when this money was borrowed, and they have paid approximately $72,542.49 on the $65,000 loan. Council Member Anderson advised that she would abstain from voting on this matter since her husband was president of Home of Neighborly Service and served on the Board for 26 years. Council Member Suarez made a motion, seconded by Council Member Anderson, that the Community Development Commission approve the forgiveness of the Community Development Block Grant (CDBG) Capital Improvement Loan made to the Home of Neighborly Service in October 1980. The motion carried by the following vote: Ayes: Council Members Estrada, Lien, McGinnis, Schnetz, Suarez, McCarnmack. Nays: None. Abstain: Council Member Anderson. Absent: None. RECESS MEETING - CLOSED SESSION (Discussed earlier & later in the meeting - pages 1 & 36) (1) At 2:30 p.m., the Mayor and Council and Community Development Commission recessed to closed session under Agenda Item No. l.G., Conference with real property negotiator pursuant to Government Code Section 54956.8. CLOSED SESSION At 2:30 p.m., Mayor Pro Tem Lien called the closed session to order in the conference room of the Council Chambers of City Hall. 28 2/5/2001 ROLL CALL Roll call was taken by City Clerk Clark with the following being present: Mayor Pro Tem Lien; Council Members Estrada, Lien, McGinnis, Schuetz, Suarez, Anderson, McCarnmack; City Attorney Penman, City Clerk Clark, City Administrator Wilson. Absent: None. Also present: Senior Assistant City Attorney Carlyle and Administrative Operations Supervisor Anderson, City Attorney's Office; Executive Director Van Osdel, Special Counsel Sabo, Special Counsel Williams, Director of Business Retention, Recruitment and Revitalization Harris. and Project Manager Hoeger, Economic Development Agency. ADJOURN CLOSED SESSION At 3:14 p.m., the closed session adjourned to the Council Chambers of City Hall. RECONVENE MEETING At 3:14 p.m., Mayor Pro Tem Lien reconvened the joint regular meeting of the Mayor and Common Council and Community Development Commission. ROLL CALL Roll call was taken by City Clerk Clark with the following being present: Mayor Pro Tem Lien; Council Members Estrada, Lien, McGinnis, Schuetz, Suarez, Anderson, McCarnmack; City Attorney Penman, Economic Development Agency Special Counsel Sabo, City Clerk Clark, Economic Development Agency Executive Director Van Osdel. Absent: None. APPEAL - FILED BY LEONARD PAUL LOPEZ, ESQ., INLAND EMPIRE LATINO LAWYERS ASSOCIATION, INC. - REQUEST FOR STAY - CERTAIN ACTIONS AND DETERMINATIONS OF ECONOMIC DEVELOPMENT AGENCY & OFFICE OF THE CITY ATTORNEY - CYPRESS INN MOBILE HOME PARK (R30) Mr. Lopez submitted an Appeal to the Common Council and Request for Stay, which was filed in the City Clerk's Office on January 29, 2001. City Attorney Penman stated that since the City Attorney's Office was named in the appeal, he had asked Mr. Sabo to advise the Council and the City Attorney's Office would advise the Economic Development Agency staff. Attorney Lopez thanked the City for extending temporary housing for his clients beyond January 31 and commended Maggie Pacheco, Agency Director of Housing and Community Development, for her efforts in working with him on this matter. He 29 2/5/2001 stated that the actions and determinations on appeal all relate to the same subject--the circumstances under which his clients signed over to the City their rights to their homes. Mr. Lopez stated that since the issue of who now owns these homes is going to be taken up at the abatement hearing scheduled for Thursday, February 8, and considering that temporary housing has been extended, he requested that the Council continue the hearing on this appeal until February 20, at which time, if any issues remain, the Council would hear the appeal filed by his office along with the appeal filed by Inland Counties Legal Services. Lita Pezant, 577 North "D" Street, Suite 106-B, San Bernardino, CA, stated that she wanted to trace the money--money already issued to housing code compliance, money already issued out of Northwest Redevelopment Project funds--and what seems to her as an inadequate canvassing of the affected area. She noted that this area has received a significant number of the HUD funds every year since the City bought into the CDBG program, and she questioned why some of these monies had not been used for this mobile home park. Council Member Anderson made a motion, seconded by Council Member Suarez, and unanimously carried, that the matter be continued to the Mayor and Council/Community Development Commission meeting of February 20, 2001. RES. CDC/2oo1-8 - A RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO APPROVING AND ACCEPTING THE PURCHASE BY REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO FROM MDA-SAN BERNARDINO ASSOCIATES, L.L.C., OF THE CINEMASTAR THEATER PARCEL AND AUTHORIZING THE EXECUTIVE DIRECTOR TO EXECUTE THE PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS ON BEHALF OF THE REDEVELOPMENT AGENCY. (Continued from January 29,2001) (R28) Executive Director Van Osdel noted that this was a somewhat controversial item; therefore, he would read the entire staff report dated January 25, 2001, into the record. Mr. Van Osdel stated that in order to protect the Agency's investment in the downtown cineplex, staff was recommending that the Commission approve the Purchase and Sale Agreement. He stated that he would like to be able to tell the Commission that staff had successfully negotiated a lease with CinemaStar Luxury Theaters for operation of the theater; however, certain last minute changes had been made by CinemaStar to the lease papers and staff would not be recommending approval of a lease agreement today. 30 2/5/2001 Lita Pezant stated that she had a problem with the fact that a 108 Loan, which is a loan taken on HUD funds against future HUD funds, supposedly for the benefit of low- to moderate-income families and/or target areas, was used to secure the theater. She stated that when 108 dollars are committed to other things, we are taking future funds that are supposed to enhance the life and environment of low and moderate- income people and target areas. Council Member McGinnis stated that it has been his constant plea that the City not get into business or put itself in the position that if anything goes wrong, the City winds up being the owner of something such as the theater. He stated that when constituents see him in the future voting against projects, it's not because he does not like things happening in San Bernardino--but he does not like it when the City is placed in a distinct position of disadvantage. Mr. McGinnis advised that he was going to vote to put up the money to buy the theater because the City cannot throwaway the $8 million it has put up. He stated that we have to put up the money so we can save it; however, it should then be immediately marketed to somebody who wants to own a theater--we should not be in the theater business. City Attorney Penman stated that the City ran out of options on this particular project a number of years ago, and as each Council meeting has transpired the options have become worse and worse. He stated that the last chance to get out of the deal was in December 1998, and at that time his office recommended in writing not to go ahead with this agreement. He stated that one thing Mr. Van Osdel commented on was that MDA's departure resulted in foreclosure by Golden Mountain Financial Institution, and that is not necessarily accurate. He stated that if MDA files bankruptcy, that will halt any foreclosure by Golden Mountain. Mr. Penman advised that in order to make the decision on this agenda item, the Council really needed to make a decision on Agenda Item R29, which is the lease agreement, for without the lease with CinemaStar the City does not have the income stream to service the loan from MDA that the Council is talking about buying out for $10,000 and taking over. The Council discussed at length the past history of the theater. It was noted that most of the present Council members were not serving on the Council at the time of its inception. Council Member Schnetz stated that by the time the fmal decision was made in December 1998, the Council was told if they pulled out then, that they were going to be sued because the previous Mayor and the previous Council had obligated them to it-- that there was a contractual agreement and they were going to get sued if they walked, and the City would end up paying MDA their profit margin without even having them build the facility. That was the reason the Council voted for it. Teri Rubi, Executive Assistant to the Mayor, informed the Council that one of the directives Mayor Valles gave her when she came over from Congressman Brown's Office was to contact the Deputy Secretary of HUD, as she was acquainted with the Deputy Secretary of HUD at that time, and his assistant, and see if there was any way 31 2/5/2001 the City could get out of this contract. She stated that they could not find a way, so the Mayor decided at that point to take lemons and try to make lemonade--the City was stuck with it, so let's move forward and make the best of it; and that is what occurred. City Attorney Penman stated that the City Attorney's Office opposed this project consistently from day one. They advised on several occasions that it was the wrong place even to build the theater. According to Mr. Penman, his office never bought into the red herring about the lawsuit, and had said as much to the Mayor and Council. It was the opinion of the City Attorney's Office that had the City been sued, and had the City lost, it would have been a fraction of the cost that we are now in obligation for; and his office said this at the time. Council Member Anderson stated that it is very difficult to stand up and be counted when you have done something wrong; however, she was one of the last standing columns who was on the Council when this theater came up and when the stadium came up. She noted that hindsight has 20/20 vision, that it would probably not be the last mistake she's going to make as a Council Member; however, it was from the heart and not intentional, and she can see now that it was a bad mistake. Council Member Estrada stated she applauded Mrs. Anderson's willingness to admit an error; however, she believed it was unfair to attempt to put blame on anyone given that the entire industry is upside down. She noted that there are theaters folding up all over, including Riverside, the County, other neighboring communities, and across the country. She stated that she also has made a number of mistakes while sitting on this dais, and she also has voted on things that have come back to haunt her. She stated that she would be remiss in her duty if she did not point out that we can blame all the council members that were here before and the mayors that were here before; however, the fact is that the theater industry has gone down the tubes and the situation in which the City now finds itself is very common in many other communities. She noted that it is unfortunate we cannot see into the future, for maybe then we would be able to keep mistakes from happening. Council Member Anderson made a motion, seconded by Council Member Schuetz, that said resolution be adopted. Resolution No. CDC/2001-8 was adopted by the following vote: Council Members Estrada, Lien, McGinnis, Schnetz, Suarez, Anderson. Council Member McCarnmack. Absent: None. Ayes: Nays: 32 2/5/2001 RES. CDC/2001-9 - A RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO APPROVING AND AUTHORIZING THE EXECUTIVE DIRECTOR OF THE REDEVELOPMENT AGENCY TO EXECUTE SECOND AMENDMENT TO MULTI-PLEX THEATER LEASE BY AND BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO AND CINEMASTAR LUXURY THEATERS, INC. (Continued from January 29, 2001) (R29) Executive Director Van Osdel advised that when the final copy of the lease came back from CinemaStar they had lined out two critical provisions; therefore, he was not able to recommend approval of the lease. Special Counsel Sabo stated that those portions of the lease which had been lined out by CinemaStar were not only what his office would have recommended, but it was also the recommendation of their bankruptcy partner down in Los Angeles, who has reviewed the document. Mr. Sabo advised that the only other option would be to either continue the matter, approve the version with the two bankruptcy provisions that were recommended, or simply not schedule it and see if staff/special counsel can go back and renegotiate with CinemaStar. Council Member Anderson suggested that the Council adopt the resolution as submitted to CinemaStar, with the lined out portions still intact. Council Member Estrada stated she would second the motion for discussion purposes and asked Mr. Sabo to explain what this would mean. Special Counsel Sabo advised that the one item was dealing with the authorization of the individuals who signed on behalf of CinemaStar to show some evidence that they were authorized representatives for CinemaStar. The request was made approximately a week ago, and when there was no document forthcoming, it was suggested by a bankruptcy attorney to add a provision whereby they would represent in warrant that they are authorized individuals to sign. That has been lined out. Mr. Sabo continued, stating that the other section deals with the situation in the event they renegotiate this lease with us, it's approved by the bankruptcy court, which is a condition of it being effective, but then they subsequently dismiss the bankruptcy. It leaves it open, where it is not 100 percent sure, if we have a valid binding lease, or if we go back to the original lease. So what we had asked is that if the bankruptcy is dismissed, even after this lease was effective, that then this lease would become null and void so that we would be approving this only if they conclude the bankruptcy, 33 2/512001 which would then preclude them from filing another bankruptcy sometime in the near future. City Attorney Penman stated that as general counsel to EDA, in looking at this agreement, his office has a lot of the same problems with this agreement that they had with the agreements in 1998--a legal document that does not contain what is needed to protect the people of San Bernardino or the City's interests and the Agency's interests. He advised that the greater problem, however, is that the backup to the HUD loan (the collateral in effect) was the City's CDBG grants for the future; and this Council made a decision to purchase a great deal of fire equipment for the City of San Bernardino with that CDBG money, knowing that those CDBG grants would be needed each year to make the payments on that fire equipment. Mr. Penman acknowledged that the City needs a lease with CinemaStar for the people who are going to operate the theater itself. He stated that Mr. Sabo is absolutely correct about the problem that he has indicated. He stated that these people are the same people who, when they left Riverside, tore out the seats, tore up the screens, took the sound equipment out--this is the same company that we are trying to deal with and we are counting on these folks to enter into a lease with us and pay us money so we can pay Golden Mountain, pay HUD, etc. Mr. Penman stated that we know that the bankruptcy lawyer with Mr. Sabo's firm made two recommendations, put that language into this lease, and the people that we are dealing with just lined it out. So, in terms of options, the Council can approve the lease as Mr. Sabo's office originally recommended (and he thought this was Mrs. Anderson's motion), or it can be approved in that manner, and give Mr. Sabo's office the alternative of taking the lease as is through the bankruptcy coUrt, and if the bankruptcy coUrt approves the lease, and the bankruptcy attorney in Mr. Sabo's office is satisfied with the guarantees and allowing the lease to go forward in that manner, that could cure the problems Mr. Sabo has identified. Council Member Lien stated that the new lease obligates the CinemaStar to really market the theater. She noted that under the terms of the first lease they had no obligation to market it, and from the day it opened she believed it could have been doing better if further marketing had been done. In addition, no matter who operates the theater, she plans to bring before the Legislative Review Committee a request to once again look at the vendor cart ordinance, as she would like to fill that whole common space in front of the theater with vendor carts, so people will be more inclined to come down and hang out in the downtown. She stated that every time she goes to the movies downtown she is encouraged because she sees a wider array of people and more people at night, which are gradual signs of hope. Council Member Anderson made a motion, seconded by Council Member Estrada that said resolution be adopted, with the original lease document as prepared by 34 2/512001 Special Counsel Sabo's office; and in the alternative to authorize Special Counsel to obtain necessary approvals from the Bankruptcy Court in lieu of the recommended provisions deleted by CinemaStar. The motion carried and Resolution No. CDC/2001-9 was adopted by the following vote: Ayes: Council Members Estrada, Lien, McGinnis, Schnetz, Suarez, Anderson, McCarnmack. Nays: None. Absent: None. ECONOMIC DEVELOPMENT AGENCY EXECUTIVE DIRECTOR V AN OSDEL & SPECIAL COUNSEL SABO EXCUSED At 4 p.m., Economic Development Agency Executive Director Van Osdel and Special Counsel Sabo left the Council meeting. CITY ADMINISTRATOR WILSON RETURNED At 4 p.m., City Administrator Wilson returned to the Council meeting. PUBLIC COMMENTS (31) Lisa Wolf, 634 Madison Street, San Bernardino, CA, spoke regarding the fumes from the fueling station at the OmniTrans facility, stating that they are causing headaches, nausea, and nosebleeds; and that it is particularly bad at the Ramona Alessandro Elementary School. Council Members Estrada and Anderson stated that they were under the impression that OmniTrans had a plan in place to eliminate this problem, most likely by relocating the filling station. Ms. Estrada stated that she would be sitting in for Mayor Valles at the OmniTrans Board Meeting this week and she would bring this issue forward. The following individuals also spoke regarding the problem with OmniTrans and urged the City to step forward and help them resolve this matter: Lita Pezant, 577 North "D" Street, Suite 106-B, San Bernardino, CA. Marilyn Alcantar, 1495 Kingman Street, San Bernardino, CA, who asked for a written status report as to what the residents can expect from the City. GiI Navarro, Mexican-American Political Association, P.O. Box 1396, San Bernardino, CA. Nick Gonzalez, Assistant to the Mayor, staled that when this problem came to the attention of the Mayor approximately three months ago, she had asked him to attend the OmniTrans Board meetings to listen to the citizens and address the issues of the health problems mentioned by the speakers. He thanked Marilyn Alcantar, who has been corresponding with OmniTrans since November 1999; and since 1999 they have been trying to resolve this problem. He noted that in addition to the school, the 35 2/5/2001 problem has been affecting the surrounding community as well. He stated that the first night he attended a meeting he parked in the parking lot for about a half hour and was soon smelling something in the air, and the OmniTrans officials verified that is what the residents are smelling on a daily basis. He confirmed that the condition that exists is totally unacceptable. He advised that it is time to accelerate the process and get some relief for the school and the residents. The Mayor is in agreement that we need to resolve this as quickly as possible. Roger Henderson, 2516 Valencia, San Bernardino, CA, spoke regarding Measure M, the censure of City Attorney Penman, the repeal of Municipal Code Section 2.20, and the fact that the Mayor and Council are not listening to the voters. Teresa Parra, 5877 Arden Avenue, Highland, CA, San Bernardino Council PTA President, stated that on Saturday, February 10, from 9 a.m. to 1 p.m., there would be a celebration of the Third Annual PT A Founders Day in conjunction with City of Readers at Belvedere Elementary School. She invited the Council to attend the event which includes a walkathon, a barbecue, and various other activities. Also, the annual PTA Gala, a black-tie affair, will be held on March 10, and funds raised from this event will be used to clothe children in San Bernardino. Dan Walker, a local resident, stated that the first jobs of government are the following: to secure the borders, to make safe the streets, and to maintain infrastructure. He stated that relative to the theater--it is not the government's job to entertain its people. In his opinion, if we don't take care of the OmniTrans situation, then we are not governing. He admonished the Council to get down to business and attend to the needs of the people and make San Bernardino a safe place for all. Jay Lindberg, 6340 Orange Knoll, San Bernardino, CA, spoke regarding the nuclear waste disposal issue that exists in San Bernardino. RECESS MEETING - CLOSED SESSION (Discussed earlier in the meeting - pages 1 & 28) (1) At 4:31 p.m., City Attorney Penman announced that the Mayor and Council and Community Development Commission would recess to closed session under Agenda Item No. 1.A., Conference with legal counsel - existing litigation - pursuant to Government Code Section 54956.9(a) to discuss the following case: La France Hamilton v. City of San Bernardino, et aI. - United States District Court Case No. EDCV 00-107 RT (RNBx). 36 2/5/2001 CLOSED SESSION At 4:31 p.m., Mayor Pro Tern Lieu called the closed session to order in the conference room of the Council Chambers of City Hall. ROLL CALL Roll call was taken by City Clerk Clark with the following being present: Mayor Pro Tem Lien; Council Members Estrada, Lien, McGinnis, Schuetz, Suarez, Anderson, McCammack; City Attorney Penman, City Clerk Clark, City Administrator Wilson. Absent: None. Also present: Senior Assistant City Attorney Carlyle, Deputy City Attorney Bryant, and Administrative Operations Supervisor Anderson, City Attorney's Office. ADJOURN CLOSED SESSION/MEETING (32) At 4:53 p.m., the closed session/meeting was adjourned. The next joint regular meeting of the Mayor and Common Council and Community Development Commission will be held at 8:00 a.m., Tuesday, February 20, 2001, in the Council Chambers of City Hall, 300 North "D" Street, San Bernardino, California. RACHEL G. CLARK City Clerk By /;'~ E ~ Linda E. Hartzel Deputy City Clerk No. of Items: 32 No. of Hours: 6.75 37 2/512001