HomeMy WebLinkAbout07-05-2005 MinutesSan
Mayor Judith Valles
Council Members:
CITY OF SAN BERNARDINO Esther Estrada
300 N. "D "Street Susan Longville
Gordon McGinnis
San Bernardino, CA 92418 Neil Derry
Website: www.sbcity.org Chas Kelley
Rikke Van Johnson
Wendy McCammack
MINUTES
MAYOR AND COMMON COUNCIL AND
COMMUNITY DEVELOPMENT COMMISSION
OF THE CITY OF SAN BERNARDINO
JOINT REGULAR MEETING
JULY 5, 2005
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/Chairman Valles at 1:33 p.m., Tuesday, July 5, 2005, 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/
Chairman Valles; Council Members/Commissioners Estrada, McGinnis, Derry, Kelley,
Johnson, McCammack; City Attorney Penman, City Clerk Clark, City Administrator
Wilson. Absent: Council Member/Commissioner Longville.
Council Member/Commissioner Longville Arrived
At 3:06 p.m., Council Member/Commissioner Longville arrived at the Council/
Commission meeting.
1. Closed Session
Pursuant to Government Code Section(s):
A. Conference with legal counsel - existing litigation - pursuant to
Government Code Section 54956.9(a):
Mohammed Fawzi Hassan, et al. v. City of San Bernardino, et al. -
United States District Court Case No. EDCV 05-328 (VAP) SGLx;
07/05/2005
Abdullah, et al. v. City of San Bernardino and San Bernardino Valley
Municipal Water District - San Bernardino Superior Court Case No.
SCVSS 126706;
Adams v. City of San Bernardino and San Bernardino Valley Municipal
Water District - San Bernardino Superior Court Case No. SCVSS
126708.
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.
C. Conference with legal counsel - anticipated litigation - initiation of
litigation - pursuant to subdivision (c) of Government Code Section
54956.9:
City of San Bernardino v. Joe Ivan Espinoza
City of San Bernardino v. Gregory Alan Goodwin, Jr.
D. Closed Session - 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
h
Conference with labor negotiator - pursuant to Government Code
Section 54957.6:
Negotiator:
Fred Wilson, City Administrator
Employee Organization:
San Bernardino Confidential
Unclassified Employees
Management Association and
Negotiator:
Linn Livingston, Director of Human Resources
Employee Organization:
San Bernardino City Professional Firefighters
Conference with real property negotiator - pursuant to Government Code
Section 54956.8:
1. Proper : 247 West Third Street
2 07/05/2005
2.
Negotiating Parties: Judith Valles, Mayor, on behalf of the
Redevelopment Agency, property owners, and
Gerry Newcombe, Deputy Administrative
Officer, on behalf of the County of San
Bernardino
Under Negotiation: Purchase price, terms and conditions
Proper That parcel consisting of approximately 67.75
acres identified as Parcel 1-2 at the San
Bernardino International Airport, and generally
bounded by Harry Sheppard Boulevard, Del
Rosa Drive, Paul Villasenor Boulevard, and
Memorial Drive
Negotiating Parties: Don Rogers on behalf of the Inland Valley
Development Agency. David Newsom on
behalf of Hillwood/San Bernardino LLC.
Bruce Varner on behalf of Stater Bros.
Markets. James F. Penman on behalf of the
City of San Bernardino
Under Negotiation: Terms and conditions
Central City North Redevelopment Project Area
t
L
5.
Property: 745 W. 5`h Street
APN 0134-093-05 and APN 0134-093-06
Negotiating Parties: Gary Van Osdel, Executive Director, on behalf
of the Redevelopment Agency and Patrick A.
Abitante Trust, property owner(s)
Under Negotiation: Purchase price, terms, and conditions
Property: Vacant Land
APN 0134-054-24
Negotiating Parties: Gary Van Osdel, Executive Director, on behalf
of the Redevelopment Agency and Fook Sung
Investment Co. Ltd, property owner(s)
Under Negotiation: Purchase price, terms, and conditions
Proper 740 W. 4' Street
APN 0134-093-43
Negotiating Parties: Gary Van Osdel, Executive Director, on behalf
of the Redevelopment Agency and Penhun
Ltd./Expo Ltd., property owner(s)
3 07/05/2005
Under Negotiation: Purchase price, terms, and conditions
City Attorney Penman announced that the following additional items would be
discussed in closed session:
Agenda Item Nos. 25, 26, 29, 30, and S2;
Under Agenda Item No. 1G, Conference with real property negotiator:
Property: Missionary Baptist Church
631 West G Street
Negotiating Parties: Gary Van Osdel, Executive Director, on behalf of
the Redevelopment Agency, and Bill Lemann on
behalf of Missionary Baptist Church
Under Negotiation: Purchase price, terms, and conditions
Reading of Resolutions & Ordinances
Deputy City Clerk Hartzel read into the record the titles of all the resolutions and
ordinances on the regular and supplemental agendas of the Mayor and Common
Council and Community Development Commission.
Invocation/Pledge of Allegiance
The invocation was given by Father Patricio Guillen of Libreria del Pueblo, followed
by the pledge of allegiance, led by Council Member/Commissioner Estrada.
2. Appointment — Margaret Hill — Board of Library Trustees — Mayor Valles
Council Member/Commissioner McCammack made a motion, seconded by
Council Member/Commissioner McGinnis, that the appointment of Margaret
Hill to the Board of Library Trustees, as requested by Mayor Valles, be
approved.
The motion carried by the following vote: Ayes: Council Members/
Commissioners Estrada, McGinnis, Derry, Kelley, Johnson, McCammack.
Nays: None. Absent: Council Member/Commissioner Longville.
3. Presentations & Proclamations
On behalf of Rotary International, Mr. Chehab El-Awar, Assistant Governor for
Rotary District 5330, presented Mayor Valles with a plaque honoring her for
her professional excellence.
4 07/05/2005
Millicent Price, Scholarship Committee Chair for the San Bernardino
Confidential/Management Association presented $1,000 scholarships to the
following children of City employees:
• Kathleen M. Beaumont, daughter of William Beaumont, who works for the
City's Fire Department, and his wife Melinda; and
• Kenneth Neil Thomsen, son of Neil Thomsen, who works in the City's
Water Department, and his wife Irene, who works in the City's Library.
June Durr, Public Information Officer, Mayor's Office, announced the winners
of the first annual Part-time Incentive Awards sponsored by the San Bernardino
Confidential/Management Association, which were awarded as a way of
recognizing the contributions made by the City's part-time employees and to
give them an incentive to continue their education.
4. Announcements
Announcements were made by the Mayor, members of the Common Council,
elected officials, and a representative of the Chamber of Commerce regarding
various civic and community events and activities.
5. Waive Full Reading of Resolutions and Ordinances
Council Member/Commissioner Longville made a motion, seconded by Council
Member/Commissioner McGinnis, that full reading of the resolutions and
ordinances on the regular and supplemental agendas of the Mayor and Common
Council/Community Development Commission, be waived.
The motion carried by the following vote: Ayes: Council Members/
Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson,
McCammack. Nays: None. Absent: None.
6. Council Minutes
Council Member/Commissioner Longville made a motion, seconded by Council
Member/Commissioner McGinnis, that the minutes of the following meeting of
the Mayor and Common Council/Community Development Commission of the
City of San Bernardino be approved as submitted in typewritten form: June 6,
2005.
The motion carried by the following vote: Ayes: Council Members/
Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson,
McCammack. Nays: None. Absent: None.
5 07/05/2005
7. Claims and Payroll
Council Member/Commissioner Longville made a motion, seconded by Council
Member/Commissioner McGinnis, that the claims and payroll and the
authorization to issue warrants as listed on the memorandum dated June 28,
2005, from Barbara Pachon, Director of Finance, be approved.
The motion carried by the following vote: Ayes: Council Members/
Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson,
McCammack. Nays: None. Absent: None.
8. Personnel Actions
Council Member/Commissioner Longville made a motion, seconded by Council
Member/Commissioner McGinnis, that the personnel actions, as submitted by
the Chief Examiner, dated June 29, 2005 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.
The motion carried by the following vote: Ayes: Council Members/
Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson,
McCammack. Nays: None. Absent: None.
9. RES. 2005-227 - Resolution of the Mayor and Common Council of the City
of San Bernardino authorizing the Mayor to execute a Master Services
Memorandum of Understanding with the Water Department for provision
of City services for Fiscal Year 2005/2006.
Council Member/Commissioner Longville made a motion, seconded by Council
Member/Commissioner McGinnis, that said resolution be adopted.
Resolution No. 2005-227 was adopted by the following vote: Ayes: Council
Members/Commissioners Estrada, Longville, McGinnis, Derry, Kelley,
Johnson, McCammack. Nays: None. Absent: None.
10. RES. 2005-228 - Resolution of the Mayor and Common Council of the City
of San Bernardino approving the destruction of certain records no longer
required to be maintained by the San Bernardino City Attorney's Office.
Council Member/Commissioner Longville made a motion, seconded by Council
Member/Commissioner McGinnis, that said resolution be adopted.
Resolution No. 2005-228 was adopted by the following vote: Ayes: Council
Members/Commissioners Estrada, Longville, McGinnis, Derry, Kelley,
Johnson, McCammack. Nays: None. Absent: None.
6 07/05/2005
11. Review and take action regarding the need for continuing in effect the local
emergency caused by the Old Waterman Canyon Fire pursuant to
Government Code Section 8630 (c)(1)
Note: No backup materials were distributed.
Council Member/Commissioner Longville made a motion, seconded by Council
Member/Commissioner McGinnis, that the Mayor and Common Council
confirm the need for continuing in effect the local emergency caused by the Old
Waterman Canyon Fire.
The motion carried by the following vote: Ayes: Council Members/
Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson,
McCammack. Nays: None. Absent: None.
12. Item Deleted
13. ORD. MC-1210 - An Ordinance of the City of San Bernardino modifying
Chapter 19.06 (Commercial Districts), Section 19.06.030(2)(G)(4) of the San
Bernardino Municipal Code (Development Code) related to locational
requirements for service stations with ancillary convenience stores. FINAL
READING
Council Member/Commissioner Longville made a motion, seconded by Council
Member/Commissioner McGinnis, that said ordinance be adopted.
Ordinance No. MC-1210 was adopted by the following vote: Ayes: Council
Members/Commissioners Estrada, Longville, McGinnis, Derry, Kelley,
Johnson, McCammack. Nays: None. Absent: None.
14. ORD. MC-1211 - An Ordinance of the City of San Bernardino amending
Chapter 19.22 (Sign Regulations) to add Section 19.22.080(7) related to off -
site electronic message center signs. FINAL READING
Council Member/Commissioner Longville made a motion, seconded by Council
Member/Commissioner McGinnis, that said ordinance be adopted.
Ordinance No. MC-1211 was adopted by the following vote: Ayes: Council
Members/Commissioners Estrada, Longville, McGinnis, Derry, Kelley,
Johnson, McCammack. Nays: None. Absent: None.
15. RES. 2005-234 - Resolution of the City of San Bernardino amending
Resolution No. 655 entitled, in part, "A Resolution... designating certain
streets, or portions thereof as through highways..." and establishing a four-
way stop at the intersection of Little League Drive and Belmont Avenue.
7 07/05/2005
Council Member/Commissioner Kelley made a motion, seconded by Council
Member/Commissioner Johnson, that said resolution be adopted.
Resolution No. 2005-234 was adopted by the following vote: Ayes: Council
Members/Commissioners Estrada, Longville, McGinnis, Derry, Kelley,
Johnson, McCammack. Nays: None. Absent: None.
16. RES. 2005-229 - Resolution of the Mayor and Common Council of the City
of San Bernardino authorizing execution of a Reimbursement Agreement
with the City of Riverside for street improvements to Waterman Avenue.
Council Member/Commissioner Longville made a motion, seconded by Council
Member/Commissioner McGinnis, that said resolution be adopted.
Resolution No. 2005-229 was adopted by the following vote: Ayes: Council
Members/Commissioners Estrada, Longville, McGinnis, Derry, Kelley,
Johnson, McCammack. Nays: None. Absent: None.
17. RES. 2005-230 - Resolution of the City of San Bernardino approving a Side
Letter to Resolution No. 2001-94, establishing a compensation and benefits
plan for the Management, Confidential and Unclassified Employees,
amending Section 2, I - PERS and adding a new section to Section 2, X -
Holidays, for Police Safety Management employees.
Council Member/Commissioner Longville made a motion, seconded by Council
Member/Commissioner McGinnis, that said resolution be adopted; and that the
Director of Finance be authorized to amend the FY 2005-06 budget and transfer
funds from Account No. 001-092-5011 to various Police Division salary benefit
accounts.
The motion carried and Resolution No. 2005-230 was adopted by the following
vote: Ayes: Council Members/Commissioners Estrada, Longville, McGinnis,
Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None.
18. RES. 2005-231 - Resolution of the Mayor and Common Council of the City
of San Bernardino authorizing the Mayor to execute a Grant Agreement
with the County of San Bernardino concerning the use of Indian Gaming
Special Distribution Funds for the San Bernardino Police Department.
Council Member/Commissioner Longville made a motion, seconded by Council
Member/Commissioner McGinnis, that said resolution be adopted; and that the
Director of Finance be authorized to amend the FY 2005-06 budget for the
Police Department by increasing the revenue budget in Account No. 001-213-
5011/5029 by $698,800 and in Account No. 001-213-5111 by $1,200 and
increasing the expenditure budget in Account No. 001-213-5011/5029 by
8 07/05/2005
$698,800 for six (6) police officers (P-l's), one (1) police sergeant (P-3), and
increasing the expenditure budget in Account No. 001-213-5111 by $1,200 for
grant required signs.
The motion carried and Resolution No. 2005-231 was adopted by the following
vote: Ayes: Council Members/Commissioners Estrada, Longville, McGinnis,
Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None.
19. RES. 2005-232 - Resolution of the City of San Bernardino ratifying the
submittal of a grant application and authorizing the Police Department to
administer the FY 2005 Juvenile Accountability Block Grant (JABG) funds
in accordance with the Grant Expenditure Plan.
Council Member/Commissioner Longville made a motion, seconded by Council
Member/Commissioner McGinnis, that said resolution be adopted.
Resolution No. 2005-232 was adopted by the following vote: Ayes: Council
Members/Commissioners Estrada, Longville, McGinnis, Derry, Kelley,
Johnson, McCammack. Nays: None. Absent: None.
20. RES. 2005-233 - A Resolution of the Mayor and Common Council of the
City of San Bernardino, successor to the South San Bernardino County
Water District, assessing properties within the previous District boundaries
in the amount of $16,587.50 for the Fiscal Year 2005/2006.
Council Member/Commissioner Longville made a motion, seconded by Council
Member/Commissioner McGinnis, that said resolution be adopted.
Resolution No. 2005-233 was adopted by the following vote: Ayes: Council
Members/Commissioners Estrada, Longville, McGinnis, Derry, Kelley,
Johnson, McCammack. Nays: None. Absent: None.
21. Oral bids & award of bid - sale of City Water Department property -
southeast corner of Mac Kay Drive and "D" Street
Mayor/Chairman Valles opened the hearing.
City Administrator Wilson provided an overview of the staff report, noting that
fair market value for the property had been established at $130,000. He advised
that only one bid had been received from Mapco/David E. Mlynarski in the
amount of $160,000.
No oral bids/public comments were received.
9 07/05/2005
Council Member/Commissioner Estrada made a motion, seconded by Council
Member/Commissioner McGinnis, that the hearing accepting oral bids for the
sale of City Water Department property, as per Bid Specification No. 15.05-
241, be closed; and that the bid amount of $160,000 (One Hundred Sixty
Thousand Dollars) be awarded to Mapco/David E. Mlynarski, (APN 0141-311-
21).
The motion carried by the following vote: Ayes: Council Members/
Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson,
McCammack. Nays: None. Absent: None.
22. Oral bids & award of bid - sale of City Water Department property -
northeast corner of Pine & Belmont Avenues & southeast corner of Ohio &
Pine Avenues
Mayor/Chairman Valles opened the hearing.
City Administrator Wilson provided an overview of the staff report, noting that
fair market value of Parcel 1 and Parcel 2 had been established at $970,000. He
advised that two bids had been received —Bid No. 1 from J. R. Watson &
Associates in the amount of $1 million, and Bid No. 2 from G.F.R. Enterprises,
Inc. in the amount of $970,000.
Mr. Wilson advised that a memo dated July 5, 2005, from Charlie Shumaker of
Watson & Associates had been distributed to the Council wherein the developer
had outlined a proposal to increase their bid to $1,275,000.
Per Resolution 2000-279, City Clerk Clark administered an oath to Mr.
Shumaker that he would provide true and honest testimony.
Charlie Shumaker, J. R. Watson & Associates, 101 Main Street, Seal Beach,
CA, stated that he was basically attending the meeting in order for Watson &
Associates to outbid itself. He stated that Watson & Associates had decided that
the parcel in question really needed a public park, and they wanted to increase
their bid by the amount it would cost them to put in a park.
Mr. Shumaker stated that the park would be approximately 2.5 acres containing
trees and shrubs, a tot lot, and decomposed granite trails connecting to the trails
system that goes from Cal State San Bernardino to the Verdemont area.
City Attorney Penman thanked Mr. Shumaker and Watson & Associates for
their added financial support of the park and commended Council Member/
Commissioner Kelley for his discussions with the developer regarding the
additional park land.
10 07/05/2005
Council Member/Commissioner Kelley made a motion, seconded by Council
Member/Commissioner Derry, that the hearing accepting oral bids for the sale
of City and Water Department property, as per Bid Specification No. 15.05-
242, be closed; and that the oral bid amount of $1,275,000 be awarded to J. R.
Watson & Associates Development Company for parcels 1 and 2 (APN 0261-
101-15, 16 & 17).
The motion carried by the following vote: Ayes: Council Members/
Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson,
McCammack. Nays: None. Absent: None.
23. Public hearing - resolution ordering vacation - proposed vacation of the
east/west street lying between "D" Street & Stoddard Avenue
Resolution of the City of San Bernardino ordering the vacation of the
east/west street lying between "D" Street and Stoddard Avenue (Plan No.
11416A).
City Attorney Penman advised that due to a problem with the service of notice
the hearing would need to be continued to July 18. He apologized to those
individuals who came to speak on the matter and asked them to come back with
their comments in two weeks.
Council Member/Commissioner Estrada made a motion, seconded by Council
Member/Commissioner McGinnis, that the matter be continued to the Council/
Commission meeting of July 18, 2005.
The motion carried by the following vote: Ayes: Council Members/
Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson,
McCammack. Nays: None. Absent: None.
24. Public hearing - resolution ordering vacation - proposed vacation of
portions of 19' Street, McKinley Street and various alleys south of 20'
Street, east of Guthrie Street
RES. 2005-235 - Resolution of the City of San Bernardino ordering the
vacation of portions of 19`h Street, McKinley Street and various alleys south
of 20th Street, east of Guthrie Street (Plan No. 11409).
Mayor/Chairman Valles opened the hearing.
City Administrator Wilson advised that this was the final step in the process.
No public comments were received.
11 07/05/2005
Council Member/Commissioner McGinnis made a motion, seconded by Council
Member/Commissioner Johnson, that the hearing be closed; that the Findings of
Fact as set forth in the staff report dated June 29, 2005, from James Funk,
Director of Development Services, as to why portions of 19' Street, McKinley
Street and various alleys south of 20' Street, east of Guthrie Street, are no
longer necessary for public street purposes, be adopted; and that said resolution
be adopted.
The motion carried and Resolution No. 2005-235 was adopted by the following
vote: Ayes: Council Members/Commissioners Estrada, Longville, McGinnis,
Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None.
25. Appeal hearing - termination of Tow Services Agreement between the City
of San Bernardino and Wilson Towing (Continued from June 20, 2005) (See
Companion Item No. 26)
The hearing remained open.
Senior Assistant City Attorney Simmons stated that many of his comments were
set forth in the staff report, but to him this was a very clear-cut prima facie
case. He stated that the City has a resolution (Resolution 1999-86) which
establishes criteria for companies to provide tow services for the City of San
Bernardino and contracts with six towing companies. He advised that the
resolution and the contracts incorporate the California Highway Patrol (CHP)
Tow Service Agreement; and that both the 2004-2005 and the 2005-2006 CHP
Tow Service Agreements contain a paragraph which states: "The sale or
transfer of the controlling interest in a company shall immediately terminate the
TSA. A new owner may apply for a rotation tow listing at any time during the
remainder of the current TSA term regardless of the Area's enrollment period."
Mr. Simmons also advised that the police ad hoc committee is currently working
on the criteria for selecting tow carriers for the City's tow rotation.
Mr. Simmons stated that both the Police Department and the City Attorney's
office had been contacted and informed that two tow companies, Wilson and
Big Z, had changed ownership. He stated that according to the records of the
City Clerk's office, it has been approximately one year since Wilson Towing
changed ownership. These records (shown as Exhibit 8 in the backup materials)
show the Account Details Report of Wilson Towing in two parts. The first
record shows the contact name as John Vach, Jr.; and the notes toward the
bottom of the page say, "Change of ownership of over 50% of the company.
Class remains the same, etc."
He stated that on the second page, the Account Details Report shows that Rick
Becker was the owner of Wilson Towing prior to Mr. Vach; and at the bottom
12 07/05/2005
of that page, under Notes, it says, "Closed per phone call, sold to new owner
John & Lilliana Vach on 6/1/04. Instructed previous owner to advise new
owner to come in and apply for zone and business license;" and that is exactly
what Mr. Vach did.
Mr. Simmons reiterated that the contract provides for immediate termination of
the contract upon change of ownership, because even the CHP Agreement
contains an experience requirement. He advised that while the new owners are
free to apply when there are openings, other tow companies can apply as well.
Therefore, City staff sent a letter to Wilson Towing indicating that pursuant to
the CHP Tow Service Agreement and their contract with the City, that they
were terminated due to the change in ownership.
Subsequently, through their attorney, Wilson Towing sent a letter setting forth
various parts of the agreement, indicating that they should have received 30
days notice of the termination. Due to the fact that there is some discrepancy
between the City contract and the CHP Tow Services Agreement, the City
Attorney's office set the matter for hearing and granted the 30 days notice that
they requested. He stated that if the Council denies Wilson's appeal they would
be terminated from the City's towing rotation effective July 10, 2005.
Mr. Simmons advised that the language is the same in both the City's resolution
and the City's Tow Service Agreement —"Tow carrier shall also comply with
the most recent California Highway Patrol Tow Service Agreement. Where
provisions of the Agreement and the CHP Tow Service Agreement are in
conflict, the provisions of this agreement shall prevail."
He stated that in order to determine whether there was a change in ownership,
we go to the City Municipal Code, specifically, Section 5.04.026, subsection B,
"In the event a permittee or certificate holder is a corporation, a new permit or
certificate shall be required when there is an actual change in control or when
ownership of more than 50 percent of the voting stock of the permittee or
certificate holder is acquired by a person or group of persons acting in concert,
none of whom already own 50 percent or more of the voting stock, singly or
collectively."
Mr. Simmons reiterated that the records of the City Clerk indicate that the
change in ownership did occur, so the Police Department, after discussing it
with the City Attorney's office and the police ad hoc committee, sent the
termination letter to Wilson Towing indicating that they were terminated,
originally, as of early June; then the City provided the 30 days notice that
Wilson Towing requested, so the termination will be effective July 10, 2005,
unless the Mayor and Council uphold their appeal.
13 07/05/2005
City Attorney Penman advised that what the Council was deciding on today was
whether or not to uphold the decision made by the Police Department to
terminate Wilson Towing from the tow rotation list.
Mayor Valles pointed out that there was a choice of three recommended motions
on the agenda relative to this matter; and Mr. Penman reviewed the content of
the motions with the Council.
Michael McGovern, attorney associated with Wilson Towing's attorney,
Patrick Ragan, asked the Council for permission to address Agenda Item Nos.
25 and 26 at the same time, because it was the same issue.
Mr. Penman inquired whether Mr. McGovern was asking the City to combine,
in effect, both hearings, Agenda Item Nos. 25 and 26; and Mr. McGovern
replied in the affirmative.
Senior Assistant City Attorney Simmons stated that the evidence for Big Z
Towing was slightly different from that of Wilson Towing. It was the consensus
of the Mayor and Council to take the items separately.
Mr. McGovern stated that it was important for the Council to know that Wilson
Towing is one of the oldest towing companies in the city and has been in
business for over 50 years; and for that period of time has been an official
service provider for the City Police Department, and has recently been a
provider pursuant to the contract that was referenced by Mr. Simmons —the
contract approved by this Council.
He advised that Wilson Towing is also an official service provider for the
California Highway Patrol and for the County Sheriff's Department. He stated
that significantly, Wilson Towing also provided tow service for the City's Code
Enforcement Division, which rids the City of a lot of junk cars, which they do
at a substantially discounted fee.
He pointed out that throughout the 50 years that Wilson Towing has been in
business in the city, its ownership has changed hands many times. In fact, it
changed hands most recently last summer, and Wilson Towing does not dispute
the fact that there was a change in ownership. He advised that the new owner
was John Vach, a police officer who has acquired this towing company as a
second career, bringing a different perspective to the towing industry and a
sense of professionalism that has perhaps not been seen in the towing industry.
Mr. McGovern pointed out that since the change of ownership last summer,
Wilson Towing has continued to provide excellent service for the Police
Department —he did not think there was any dispute about that, and he had not
heard anything to the effect that their quality of service has deteriorated since
14 07/05/2005
the change of ownership. In fact, they have endeavored to improve the service
that the company has provided, so that is not an issue. He added that it's not an
issue about response time, it's not an issue about quality of employees, it's not
an issue about equipment failures, safety issues, etc. As the City Attorney
noted, the only issue and the only problem that has been raised is the fact that
there has been a change of ownership —that is all.
Mr. McGovern stated that he had had an opportunity to review the staff report
that was provided to Mr. Ragan by Mr. Penman; and he respectfully disagreed
with the critical sentence in that report. He noted that on the front page of the
report in the third paragraph, it says that, "Resolution 1999-86 incorporated the
terms of the California Highway Patrol Tow Services Agreement (TSA)." Mr.
McGovern stated, however, that that statement was incorrect.
According to Mr. McGovern, the contract does not incorporate the separate
Highway Patrol Agreement —it does not do that. According to the language in
Exhibit 4, which is the contract attachment to Resolution 1999-86, the language
is the same in the contract and the resolution and was quoted earlier, "The
towing carrier shall also comply with the most recent California Highway Patrol
Tow Service Agreement."
He stated that it is a substantially different matter to say that something must
comply with the Tow Services Agreement than to say that that agreement is
incorporated in the City's agreement. He stated that all the City has asked the
company to do is be in compliance with the Highway Patrol rules and
regulations; and that being the case, if a company is on the Highway Patrol
rotation list, then they are in compliance. He stated that Wilson Towing
remains to this day on the Highway Patrol's tow list, and submitted a copy of a
letter dated June 24, 2005, certifying Wilson Towing as a member of the
California Highway Patrol tow rotation list.
Mr. McGovern reiterated that Wilson Towing remains a qualified and certified
participant on the California Highway Patrol rotation tow list. He pointed out
that what the City contract and what the resolution provides is that they be in
compliance —and there is no question that they are in compliance and they still
participate.
He acknowledged that there was a change of ownership. However, under the
California Highway Patrol Tow Services Agreement, if there is a change of
ownership, what the towing company does is they go to the California Highway
Patrol, tell them that there has been a change of ownership, and seek approval
of the new owners. He stated that that is precisely what happened here. They
continued working for the California Highway Patrol and remain in compliance
with the California Highway Patrol Tow Services Agreement. That being the
15 07/05/2005
case, then they are in compliance with the City's contract and with the City's
resolution.
Mr. McGovern advised that it is not an absolute —the California Highway Patrol
contract is not absolute. It does not say, if you change ownership you are
terminated —that is not what it says. It says you are terminated, but you can
come in, show your new ownership, demonstrate to us that you are going to
continue to provide the service, and we will continue with you. That's exactly
what happened. They are still working for the Highway Patrol, so they are in
compliance. So the language in the staff report where it says that the contract
was "incorporated" is incorrect. All it says is that they must be in compliance,
and they are.
Mr. McGovern stated that recently it was brought to his attention that the letter
from the City Attorney's office may have been driven by some pending
litigation by another towing company which has been filed in federal court
against the City. He added that Wilson Towing is a defendant in that same
lawsuit —that they have been sued, too, as conspirators with the City to foreclose
this other company from being admitted to the tow list.
He stated that one of the reasons that Wilson Towing retained his services, is
that he somewhat specializes in representing towing companies, and he has dealt
with a lot of litigation involving towing companies and municipal contracts.
One of them, which he wanted to bring to the Council's attention, was a case
that he represented —a towing company in Santa Ana who raised essentially the
same argument that Armada Towing is raising against the City in this current
lawsuit. Basically, the same complaint —that he had been shut out from the
city's rotation towing list without any justification; and he complained that other
towing companies weren't in compliance with the agreement and he should be
let on, and he tried to force the city to put him on the rotation towing list.
Mr. McGovern advised that the complainant lost that case. The 9' Circuit
Court of Appeals said that he couldn't make a claim if he wasn't on the tow list
to start with —that he had no claim against the city.
He stated that he had reviewed the lawsuit that's been filed against the towing
companies in the City of San Bernardino, and he found it to be without merit;
and he anticipates filing a motion to dismiss for failure to state a cause of action
and suspected that the City would do so also.
He stated that he did not think that the lawsuit filed against the City should serve
as a basis for this action that has been taken against Wilson Towing. He stated
that he didn't think that case had any merit whatsoever; and he believed the City
has broad discretion to choose the quality towing companies that it wishes to
serve the public and serve the Police Department.
16 07/05/2005
Mr. McGovern summarized his comments by stating that first, there has been
no violation of the contract. Wilson Towing remains in compliance with the
Highway Patrol rules and regulations. And secondly, even if they weren't in
compliance, the City has the discretion to overlook it under the court of appeals
case he just cited. He added that certainly the City would want to overlook it in
dealing with a company like Wilson Towing, who has been serving the City for
50 years.
He stated that if it's a decision between a quality company like Wilson Towing
and an unknown company like Armada, he would certainly suggest that the City
should stay with Wilson Towing. He stated he was not sure of the language of
the motions, but the request on the part of Wilson Towing would be to overrule
or reverse the suspension that is pending against them now.
Pursuant to Resolution 2000-279, City Clerk Clark administered an oath to Mr.
John Vach that he would provide true and honest testimony.
John Vach, controlling member of Wilson Towing, LLC, stated he was here to
emphasize how important it is to Wilson Towing to be reinstated as a permanent
member of the police tow rotation. He stated that when he assumed control of
this company, approximately one year ago, he analyzed their business system
and came to the realization that they needed to improve their tow service to the
City of San Bernardino contract —that with 11 years of experience as a law
enforcement officer, he saw the need to expedite their response times and level
of service to the San Bernardino Police Department.
Therefore, he made a critical decision to eliminate some of the smaller tow
memberships that they belonged to, such as Good Sam's and Traveler's Tow
Club, in order to enhance their service to the Police Department. As a result,
their service increased and their response times went way down, allowing
officers to leave the tow vehicles much, much quicker. He stated that this is
important because uniformed presence and observation activities by law
enforcement officers greatly reduces crime in the area.
Mr. Vach emphasized that by reducing their business with other tow
memberships, they generated 75-80 percent of their revenue servicing the police
contract. He pointed out that the loss of membership to the police tow rotation
would effectively eliminate his company from practicing business in the City of
San Bernardino —a business that has been serving this community for over 50
years. He stated that they are the second oldest tow company in the city of San
Bernardino, that one of the former owners still works for the company as well
as a majority of the employees, and the manager has been employed with the
company for over 15 years, serving through three owners.
17 07/05/2005
He stated that Wilson Towing would cease to exist because they took the steps
to enhance the service they provide to the Police Department. He stated that it
was also important to note that a skilled tow company, with experience assisting
law enforcement officials, not only reduces crime, but City liability when towed
vehicle owners do not file claims against the City. He stated that he could not
tell how many times he has limited the risk of liability for all parties, the City
and his company as well, due to his experience in law enforcement towing
policy and procedure.
Mr. Vach stated that a key element to Wilson Towing's service is having
experienced professional personnel that are continually trained and held to a
high standard of quality to continuous service. And that was the other reason
why he was before the Council today —that in addition to the risk of losing his
business, he was extremely concerned about the tow drivers, dispatchers,
mechanics, and the managers that will all lose their jobs and their livelihoods.
He stated that several of these individuals have been with this company for
many, many years; and this bothers him greatly because they are depending on
him and the police contract for employment.
He pointed out that Wilson Towing also donates revenue to after -school
programs and youth sports, and encourages after -school youth activities that
prevent wayward youth from gang affiliation and criminal behavior. He stated
that during the San Bernardino fires their trucks were involved in pulling
vehicles out of the residences and streets in the area; and this was done free of
charge —they volunteered their trucks and all their resources, almost losing two
vehicles in the process.
He stated that in addition to the San Bernardino fires, their company has been
involved with the recent flooding that has occurred in the San Bernardino area
as a result of the heavy rainfall season. Again, they have used their winches to
retrieve vehicles and offered any service they could to prevent vehicles from
being swallowed up. In fact, they suffered severe damage to their vehicles, but
again, it was for the community —it wasn't just about being an owner in the city
and taking a profit —it's also about what you do for others in the community,
and to him it goes hand in hand.
Mr. Vach concluded by reiterating that Wilson Towing has provided service for
five decades and has been part of the fabric of life here in San Bernardino. He
stated that the company represents the best San Bernardino has to offer, with
employees who have been with them through three generations of
management —a company that continues to employ and support the residents of
this great city, and in times of crisis like the San Bernardino fire and flooding,
they will continue to respond with integrity, honor, and community service.
Council Member/Commissioner McCammack stated that Mr. McGovern had
brought an issue up about the CHP's Tow Service Agreement in referencing the
18 07/05/2005
City's Tow Service Agreement, and she noticed on page 15 of 33 in the
Highway Patrol's TSA, item 12C, "The sale or transfer of the controlling
interest in a company shall immediately terminate the Tow Services Agreement.
A new owner may apply for a rotation tow listing at any time during the
remainder of the current TSA term, regardless of the Area's enrollment
period." She asked City counsel how that inter -plays with the agreement that
Wilson has signed with the City.
Senior Assistant City Attorney Simmons stated that his reading of the City's
agreement was that the City was incorporating that section of the CHP
Agreement into its own agreement, and once the change in ownership occurred
it not only terminated their relationship with the CHP, but it terminated their
relationship with the City of San Bernardino. The way the City has been
interpreting its contract, Wilson Towing could re -apply, but others could apply
as well.
Council Member/Commissioner Estrada asked whether it would be fair to say
that it all boils down to two towing companies who changed ownership and the
City was not notified; consequently, over this period of time they have been
operating with an agreement that should have been null and void, and a new
rotation, if it is going to happen, should have been performed. It does not seem
to be anything to do with the quality of service that the company is providing.
Mr. Simmons answered in the affirmative.
Council Member/Commissioner Estrada noted that the ad hoc committee has not
finalized the issue of how tow service companies will be selected in the City of
San Bernardino, yet the City has terminated the agreements with Wilson Towing
and Big Z, effective July 10. She questioned what this would do to the overall
police need in terms of tow service.
City Attorney Penman stated that that was an inappropriate consideration —that
the Council was limited to making a decision based on the appeal. He explained
that the appeal, according to the evidence presented, is a claim that the City's
interpretation is incorrect —that the City's agreement does not require
compliance with the Highway Patrol Agreement.
He stated that Mr. McGovern had focused on the word "incorporates." He
stated the way the agreement reads, on page 5, item 15, "Towing Carrier shall
also comply with the most recent California Highway Patrol tow service
agreement. Where provisions of this Agreement and the CHP tow service
agreement shall be found to be in conflict, the provisions of this Agreement
shall prevail."
Also, the CHP tow service agreement, on page 15 of 33, Item 12C reads, "The
sale or transfer of the controlling interest in a company shall immediately
19 07/05/2005
terminate the TSA. A new owner may apply for a rotation tow listing at any
time during the remainder of the current TSA term, regardless of the Area's
enrollment period." Mr. Penman stated that what the Council was focusing on
is whether or not the City's agreement requires that.
He then asked several questions of Mr. Simmons, basically recapping statements
Mr. Simmons had already made relative to whether Wilson Towing had notified
the City of San Bernardino when the ownership change occurred, and more
specifically, whether they had notified the Police Department; how the Police
Department became aware of the change in ownership; and once the Police
Department found out about the change in ownership, what actions were then
taken.
Council Member/Commissioner McGinnis stated that it sounded to him, from
the reading of it all, that there was really no conflict. The Highway Patrol
accepted Wilson Towing again when they went and talked to them, and then (he
thought) they continued to meet the CHP's criteria.
City Attorney Penman indicated that this was not necessarily correct —that the
Council had not made a decision to do that, that no one knows what the Council
is going to do —they might decide to draw lots —no decision had been made. He
stated that the pertinent information was that "The sale or transfer of the
controlling interest in a company shall immediately terminate the TSA." The
issue is whether or not the ownership changed hands, and whether or not by
changing hands that automatically drops them off the tow list pursuant to the
City's Agreement and the Highway Patrol Tow Service Agreement.
Attorney McGovern stated that it may sound like splitting hairs, but it is the life
of a company that is at stake here. He pointed out that the City Attorney keeps
referring to provisions in the California Highway Patrol contract, but he (Mr.
McGovern) thought what the City should be focused on is their own contract.
He stated that the City's contract, which is what we are here about, says that the
tow operator shall be in compliance with the California Highway Patrol
contract —and they are. He noted that City counsel kept focusing the Council's
attention to a contract that is not the City's contract. And the City's contract
does not incorporate the Highway Patrol Contract. If it did, the City's contract
must take this language right out of the Highway Patrol Contract and put it in
the City's contract. But that's not what the City's contract says. The City's
contract says, "You shall comply with the Highway Patrol." And they do. He
stated that he thought the City should focus on its own contract because that's
the language that's critical, the language in the City's contract —not the Highway
Patrol contract.
City Attorney Penman stated that he wanted Mr. Simmons to again respond to
that.
20 07/05/2005
Mayor/Chairman Valles asked Mr. Simmons to read to the Mayor and Council
the language exactly as it reads in the City's contract.
Mr. Simmons answered that it seems, for the City's purposes —that reading it
the way opposing counsel argues, and he understood his argument —but it seems
that he's somewhat reading the clause out of it and it has no meaning to the
City. He stated that opposing counsel was arguing that the City's contract, so
long as the towing companies keep renewing with the CHP, that that sort of
automatically renews the contract with the City and that the City, in effect,
ignores the change in ownership. He stated that maybe the technical word is not
"incorporate," but he believes the intent is that the City incorporated the CHP
language from their tow services agreement and it applies to the City's contract.
Council Member/Commissioner Kelley made a motion, seconded by Council
Member/Commissioner Estrada, that the hearing be closed.
The motion carried by the following vote: Ayes: Council Members/
Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson,
McCammack. Nays: None. Absent: None.
Council Member/Commissioner McCammack made a motion, seconded by
Council Member/Commissioner Kelley, that the hearing be closed; and that the
Mayor and Common Council uphold the termination by the Police Department,
based upon the back-up information submitted and any additional evidence
presented at the hearing, and direct the City Attorney to prepare findings and
conclusions.
The motion carried by the following vote: Ayes: Council Members/
Commissioners Estrada, Longville, Derry, Kelley, Johnson, McCammack.
Nays: Council Member/Commissioner McGinnis. Absent: None. (Note:
Later in the meeting the matter was reconsidered and the following action
was taken.)
Council Member/Commissioner McGinnis made a motion, seconded by Council
Member/Commissioner Estrada, that Agenda Item No. 25 be reconsidered.
The motion carried by the following vote: Ayes: Council Members/
Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson,
McCammack. Nays: None. Absent: None.
Council Member/Commissioner McGinnis made a motion, seconded by Council
Member/Commissioner Estrada, that the Mayor and Common Council uphold
the appeal of the applicant, in part, based upon the back-up information
submitted and any additional evidence presented at the hearing, and direct the
21 07/05/2005
City Attorney's Office to prepare findings and conclusions consistent with its
decision; and that Wilson Towing would remain on the tow rotation list until the
ad hoc committee completes its findings and establishes its criteria.
The motion carried by the following vote: Ayes: Council Members/
Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson,
McCammack. Nays: None. Absent: None.
26. Appeal hearing regarding the termination of the Tow Services Agreement
between the City of San Bernardino and Big Z Towing Company
(Continued from June 20, 2005) (See Companion Item No. 25)
The hearing remained open.
Senior Assistant City Attorney Simmons advised that his comments directed to
Wilson Towing were essentially the same as applies to Big Z Auto Works. As
in the Wilson Towing case, the City heard about the change in ownership
through someone reporting it to the Police Department; however, in this case,
there was no change in ownership filed with the City Clerk. The Police
Department went out and spoke to Big Z; and in turn, Mr. Simmons received a
telephone call on April 25 from Mr. Desjardins, who is the new owner of Big Z
Auto Works and owns a controlling interest.
According to Mr. Simmons, in effect, Mr. Desjardins said, "Yes, I am the new
owner," and they talked about it, and Mr. Simmons told him what the City had
to do in light of the agreement and the City's interpretation of the agreement.
From that point on, everything took place just like with Wilson Towing. A
letter was sent terminating the company and, again, Mr. Ragan sent a letter
requesting the 30-day notice provision. The City Attorney's office
recommended that the matter be handled by appeal to the Mayor and Council
and the termination would be effective July 10, 2005, just like with Wilson
Towing. Again, the only difference is that the evidence of change of ownership
was Mr. Desjardins statement that he was the new owner.
Mr. McGovern stated that there were some additional points he wanted to make
with regard to Big Z Towing. First of all, it's the oldest towing company in the
city, having been founded in 1924; and has been providing service to the city
for over 80 years. Another significant factor with regard to Big Z, that perhaps
wasn't the same with Wilson, is the fact that the ownership of this business has
changed several times. It changed last summer, which is the issue today. It
also changed in the late 1990's under the same ordinance, under the same
contract, and no action was taken by this Council when there was a change of
ownership then. Therefore, the question is, why is it being taken now? Same
company, same situation —change of ownership. And again, there are
absolutely no safety issues involved.
22 07/05/2005
Mr. McGovern added that these two companies are the stellar performers for
the Police Department and for the citizens of this city; and what we are talking
about is a paper shuffle. He stated that all the Highway Patrol wants to know
is, who is the new owner and are they going to comply with the agreement. He
advised that Big Z is in compliance with the Highway Patrol and distributed
copies of a letter dated June 24, 2005, from the CHP to Big Z Auto Works
which stated that Big Z had been approved to participate in the 2005/2006 tow
rotation for the California Highway Patrol San Bernardino Area.
Attorney McGovern pointed out that like Wilson Towing, Big Z is in
compliance with the California Highway Patrol contract, and that is what the
City's contract calls for —compliance with the California Highway Patrol
contract. He stated that the provision dealing with termination upon change of
ownership does not exist in the City's contract —it's not in there. The City's
contract just requires compliance, and they are in compliance. He stated that he
really didn't know what more he could add, except that this is not a safety issue
and it's not an issue of response —the Police Department is happy with these
companies.
Mr. McGovern stated that there was notification at some point to the Clerk's
office about the change in ownership. These business owners thought that by
complying with the CHP contract, which is what the City contract tells them to
do, they were under the assumption that by doing what they were supposed to
do and complying with the California Highway Patrol contract they were
thereby in compliance with the City contract. In good faith, that's what they
did.
He stated that there is nothing in the contract that says they've got to come to
the City and tell the City that they've changed ownership. It doesn't say that in
the contract anywhere. All it says is that they have to be in compliance with the
CHP. And according to the letters he provided the Council with copies of
today, they did exactly what they thought they were supposed to do under the
City's agreement. Mr. McGovern stated that this is very inequitable; that these
companies are going to go out of business, and what's happening is very, very
inequitable.
Mr. Simmons stated that there was no difference between the two cases, other
than the evidence of change in ownership. He stated that Mr. McGovern has
admitted the change of ownership and he saw no difference.
Mayor/Chairman Valles stated that she wanted Wilson Towing to understand
that whatever action is taken on the Big Z appeal, certainly Wilson Towing has
the opportunity to apply again to be on the rotation list. She thought they
needed to know that —it is an opportunity that will be afforded to them. She
stated that she could not speak to Council's of the past, in the 90's, why this
23 07/05/2005
action was not taken, but she knew that this Council now wants to adhere very
closely to the rules and regulations that it has adopted.
City Attorney Penman noted that Mr. Simmons had indicated that Big Z did not
notify the Police Department or the City Clerk's office when they changed
ownership last summer, and asked Mr. Simmons if that was correct.
Mr. Simmons replied that that is what the records show. He stated that Exhibit
8 just lists the contact name as Big Z Auto Works —there was no name of the
individual owning the controlling interest —whereas on the Account Details
Report of Wilson Towing shows the two different names and actual change in
ownership.
City Attorney Penman asked Mr. Simmons if he was aware of any evidence that
in 1990, that as Big Z's attorney just indicated, that they changed ownership and
the City did not do anything. He asked Mr. Simmons whether the appellant had
given him any evidence to show that they reported the information of change in
ownership in 1990.
Mr. Simmons answered that he didn't know if their attorney was speaking
exactly of the year 1990, but the new agreement was entered into with all the
tow companies in the city on the rotation in 1999.
City Attorney Penman confirmed that they were operating under a 1999
agreement regardless of what happened in 1990.
Mr. Simmons stated that he was not aware of a change in ownership in 1990.
Council Member/Commissioner McGinnis addressed City Attorney Penman,
stating that he wanted to make sure, since they were doing this judicial hearing,
that he is not going to be asking the wrong thing. He asked Mr. Penman for
confirmation that he had stated earlier that the City is still working on coming
up with guidelines that the City is going to use.
Mr. Penman confirmed that these guidelines would be for re -application and
new application.
Council Member/Commissioner McGinnis asked whether this Council could
decide today, not during this hearing but after this hearing, to continue on an
interim basis with these companies until it has been determined whether they
meet the criteria, fall within the guidelines, etc.
City Attorney Penman stated that he thought what Mr. McGinnis would want to
do, if it was his desire and the desire of Council, would be to do that through
Motion #3, which would be to uphold the appeal of the applicant, in part, based
upon the back-up information submitted and any additional evidence presented
24 07/05/2005
at the hearing, and direct the City Attorney's Office to prepare findings and
conclusions consistent with its decision.
He stated that he thought what Mr. McGinnis was saying was that he wanted to
leave them on the list, pending the new procedures; and Mr. McGinnis
answered in the affirmative.
Mr. Penman clarified that he was not suggesting that Mr. McGinnis adopt
Motion #3; however, there was nothing else on the agenda relative to this
matter, and under the Brown Act he didn't believe the Council would be able to
do that at this time as a separate item.
Council Member/Commissioner McCammack stated that she wanted to bring
her colleagues' attention to one other item in City Resolution No. 1999-86, page
4, #7, "Any agreement entered into pursuant to the terms of this resolution may
be terminated by either party, without prejudice, upon thirty days written notice
to the other party." She asked Mr. Penman whether that was in fact what the
Council was exercising here.
City Attorney Penman stated that he thought the Council could make the
constructive determination, a determination that that constructive notice was
what was given; however, it was not argued by the attorney for the Police
Department (Mr. Simmons). He stated that a 30-day notice was given, and the
reason initially given is that they changed ownership. At the same time, either
party is free to terminate the contract with 30 days notice, and that was also
done. He stated that the second letter that was sent becomes the 30 days and is
effective July 10—that would be the 30' day; so in response to Ms.
McCammack's question, he thought the Council could make that determination.
Pursuant to Resolution No. 2000-279, City Clerk Clark administered an oath to
Jason Desjardins that he would provide true and honest testimony.
Jason Desjardins, President of Big Z Auto Works, stated that he wanted to
clarify some of the statements made by Mr. Simmons. He stated that there was
a notification made to the Traffic Sergeant of the City last summer —that as soon
as the change of ownership was made he met with the Traffic Sergeant of the
City of San Bernardino. He stated that the sergeant had come in to either do a
VIN check or some other thing; in fact, the old owner, Bob Wells, actually
arranged the meeting.
He stated that he introduced himself to no less than 15 officers within the City,
so the change of ownership for Big Z Auto Works was well known —it was not a
secret. He stated that he actually promoted the fact that Big Z, being a brick
building, could be a quasi safe house for an officer possibly in trouble, as they
are open 24 hours a day. He promoted that fact that they could come in and
25 07/05/2005
have coffee and water, or write their reports in the room that they always have
set up.
Attorney McGovern asked Mr. Desjardins whether the sergeant or any other
police officer at any other time told him that there was something that he needed
to do in order to transfer the ownership —that he needed to come to the City
Council, or come to the City Attorney, or come to do anything?
Mr. Desjardins stated that when he had that meeting, his best recollection was
that he questioned the process and whether he was in compliance. He asked if
there was anything he needed to do to the yard, or whether there was anything
procedurally or paperwork wise that he needed to clear up to maintain his
position on the rotation.
Mr. Desjardins stressed the fact that his life was staked on this business —his
house, his ten years of law enforcement workings, his income —everything was
staked on this, so it was very important to him to make sure that he was not in
any kind of violation. He stated that he was even CTTA certified; that he went
to the tow truck school to make sure that he had the certificate to prove that he
had the experience outside of his other experience.
Mr. Desjardins stated that the sergeant's statement to him was, "Make sure that
you have the approval from the California Highway Patrol, because without that
California Highway Patrol approval you cannot be on any police rotation unless
you are on the California Highway Patrol rotation." He stated that he
immediately did that —he went and spoke with the CHP tow officer at the
California Highway Patrol office on Highland; and he thought this officer was
over the San Bernardino area. He stated that he not only spoke with him, but
the officer actually came down and inspected their trucks.
Mr. Desjardins stated that he tried to get as much approval as he thought he
could get. So much so, in fact, that earlier this year in March or April, the City
of San Bernardino Police Department came in and inspected their yard and made
sure that their security was up to par, that their gates worked, that they had
motion detectors and video camera surveillance, and so on and so forth. He
added that their haz-mat fee was in order, all of their permits were in place, and
everything is all there —and it was there from the beginning —from the time he
purchased the business.
He added that there is a rule in his own police department, the L.A. County
Sheriff's Department of which he is a member, that if you go and entertain
outside employment of any sort you have to be in compliance with the law —
from infractions of the municipal code all the way up. You have to be in
compliance with every code or you cannot do outside employment.
26 07/05/2005
At this time, Council Member/Commissioner Kelley left the dais, and City
Attorney Penman requested that the Mayor declare a short break, to ensure the
integrity of the hearing process, until Mr. Kelley was able to return. The
following action was taken immediately upon the return of the
Council/Commission members.
Council Member/Commissioner McGinnis made a motion, seconded by Council
Member/Commissioner Kelley, that the hearing be closed; that the Mayor and
Common Council uphold the appeal of the applicant, in part, based upon the
back-up information submitted and any additional evidence presented at the
hearing and direct the City Attorney's Office to prepare findings and
conclusions consistent with its decision; and that Big Z Towing Company would
remain on the tow rotation list until the ad hoc committee completes its findings
and establishes its criteria.
The motion carried by the following vote' Ayes: Council Members/
Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson,
McCammack. Nays: None. Absent: None.
Council Member/Commissioner McCammack, speaking on behalf of the ad hoc
committee, informed the towing companies in the room that criteria is currently
being established to set in place the selection process to be used by the Police
Department, probably quite a different process than it is today. Therefore, they
needed to know, for a fact, 100 percent, that when they go to re -apply they will
have to meet the new and current criteria, if in fact the Council agrees to set that
into motion. And that process could be quite different from what it is now.
She stated that, technically, they had been given another stay. They were
already given one stay from the time they changed ownership —they had been
given another stay from the 30 days to the interim period of time; and when that
interim period of time was over, it's probably over. She wanted them to
understand that what she was saying was that the criteria would probably
change, so they needed to be on notice that when the criteria changes, they may
be asked to re -apply and they would need to meet whatever the new criteria is.
Mayor Valles asked for confirmation of her understanding that the new criteria
would also apply to those currently on the list.
Council Member/Commissioner McCammack replied that that was not
necessarily true.
Mayor/Chairman Valles asked if those companies currently on the list would be
grandfathered in.
City Attorney Penman answered that some may be grandfathered; however, the
Council had not made a final decision on that. He stated that among the ideas
27 07/05/2005
that have been discussed is a point system. It has also been suggested that
everybody that qualifies —their name would go into a hat and they would draw
the companies that would be allowed to stay on the list or get on the list. So
there has been no final decision made yet; but to the two tow companies that
were present, and their attorney, what Ms. McCammack was talking about is
that probably within the next 30-60 days the Council will be adopting some new
procedure for deciding who is on the police tow rotation list. At that time they
will decide whether or not they are going to grandfather anyone, and if so, why,
and that type of thing. So, no final decision has been made, except that it seems
to be the will of the Council that some new and different system be developed.
27. Set a workshop for the Capital Improvement Program (CIP) - to review the
Five Year Capital Improvement Program - Fiscal Years 2005/2006-
2009/2010 (Continued from June 23, 2005)
Council Member/Commissioner Kelley made a motion, seconded by Council
Member/Commissioner Derry, that a CIP Workshop be set for Monday, July
18, 2005 at 5:00 p.m. in the Economic Development Agency Boardroom to
review the Five Year Capital Improvement Program for Fiscal Years
2005/2006-2009/2010.
The motion carried by the following vote: Ayes: Council Members/
Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson,
McCammack. Nays: None. Absent: None.
COMMUNITY DEVELOPMENT COMMISSION
Staff Present: Mayor/Chairman Valles; Council Members/Commissioners Estrada,
Longville, McGinnis, Derry, Kelley, Johnson, McCammack; Senior Assistant City
Attorney Calkins, City Clerk Clark, Economic Development Agency Executive
Director Van Osdel. Absent: None.
R28. RES. CDC/2005-24 - Resolution of the Community Development
Commission of the City of San Bernardino approving and authorizing the
Executive Director of the Redevelopment Agency of the City of San
Bernardino ("Agency") (1) to execute the Redevelopment Project Study and
Redevelopment Assistance Agreement with Street -Manchester, LLC
("Developer"); and (2) to initiate a General Plan Amendment changing the
land use from CR-1 to CR-2 within the Central City Projects
Redevelopment Project Area to accommodate redevelopment of the site
known as the Carousel Mall.
Agency Executive Director Van Osdel provided an overview of the staff report,
noting that the representatives of the mall ownership have signed off on this
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agreement, acknowledging that the proponents have their authority to enter into
this agreement with the Agency. He stated that this is nothing more than an
opportunity to look at the situation —it does not commit the Redevelopment
Agency of the City of San Bernardino to do anything but join forces with Harold
Street and Fred Stemmler and their consultant to take a hard look at the situation
at the mall to see if there aren't some things that we can do to bring new life to
downtown San Bernardino.
Mr, Van Osdel clarified that the exhibit in the backup materials indicated that
the project encompassed 72 acres, when in fact the size is only 44 acres —it
encompasses only the property between 2' and 4' Streets and E Street and the
convergence of 3rd and G Streets.
Council Member/Commissioner Derry made a motion, seconded by Council
Member/Commissioner McGinnis, that said resolution be adopted.
Resolution No. CDC/2005-24 was adopted by the following vote: Ayes:
Council Members/Commissioners Estrada, Longville, McGinnis, Derry, Kelley,
Johnson, McCammack. Nays: None. Absent: None.
29. Appeal of Planning Commission Conditions of Approval for Conditional
Use Permit (CUP) No. 04-33 regarding use restrictions - retail shopping
center - northwest corner of Mill Street & Rancho Avenue
Mayor/Chairman Valles opened the hearing.
Valerie Ross, Deputy Director/City Planner, advised that on April 19 the
Planning Commission approved a conditional use permit for this strip center
located at the northwest corner of Mill Street and Rancho Avenue.
She stated that the applicant was concerned with Condition #22 in the Planning
Commission staff report, a condition that precludes certain specified
businesses —businesses already prohibited on an interim basis by a moratorium
established by Ordinance No. MC-1188. The applicant felt that when the
moratorium was lifted he should not be precluded from having some of those
businesses in his center.
Ms. Ross noted that two of the Planning Commission members agreed with the
applicant; three disagreed. The three that disagreed felt that the condition
should remain, and they also added pawn shops as a prohibited business,
consistent with the ordinance.
Ms. Ross advised that both staff and the Planning Commission believed that
Condition #22 should remain in place. She stated that the Planning
Commission, in particular, was concerned about the viability of the center with
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reliance on those types of businesses. The Planning Commission concurred that
the applicant has the ability in the future to request an amendment to the
Conditions of Approval to either remove or modify any or all of those uses; and
at that time the Planning Commission has the ability to make a determination
whether it is appropriate or not.
Ms. Ross concluded her remarks by stating that staff recommended that the
Mayor and Council deny the appeal and uphold the Planning Commission's
approval with Condition #22 intact.
Pursuant to Resolution 2000-279, City Clerk Clark administered an oath to Mr.
Mohammad Siddiqui that he would provide true and honest testimony.
City Attorney Penman stated that he needed to advise Mr. Ali Yasin, the
applicant, that by law he was entitled to a 10-day written notice before the
hearing is held, and it was his understanding that Mr. Yasin had not been given
the 10-day written notice.
Mr. Yasin stated that he had been notified just this morning; however, his father
was sick and he needed to leave the country as soon as possible and he was
willing to go ahead with the hearing at this time.
Mr. Penman reiterated that Mr. Yasin had a right to request a continuance to a
later date in order for the City to comply with his rights. Mr. Yasin stated that
he was willing to waive his right to a written 10-day notice.
Mohammad Siddiqui, representative for Mr. Yasin, stated that their point is,
why does his client have to come back to the Planning Commission again at a
later date to have this condition removed or changed —why can't this Condition
#22 be removed right now, because the condition already exists through the
moratorium ordinance. He said he did not understand the point of view of the
Planning Commission or the Planning Department.
Ms. Ross stated that Mr. Yasin was made aware at the Development Review
Committee meeting, as were other applicants, that this would be imposed as a
condition of approval. She stated that staff believes it gives the City an
additional mechanism to use in concert with the ordinance —that they get some
very creative people at their counter coming up with different ways to categorize
their business in an attempt to try and get around the provisions in the
moratorium —so that is why they included it as a condition.
Council Member/Commissioner McGinnis stated he was not sure why this
condition had to be included in Mr. Yasin's conditional use permit, when it is
already an ordinance. He stated that he knew it required the City to do its due
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diligence whenever any business is going in, to present to them what they can
and cannot have under the City's interim ordinance now in place.
However, he also understood what the difficulty would be for Mr. Yasin, if the
Council did away with the ordinance and he then tried to get this condition
removed from the conditional use permit of his property. He stated that he
thought it was unfair to Mr. Yasin, and to anyone else coming to the counter, to
have to have this in their conditional use permit, not knowing what the City is
going to do a year from now. He stated he did not agree with adding this
condition to Mr. Yasin's conditions of approval.
Council Member/Commissioner Longville stated that she was concerned when
she looked at her agenda and saw that there were not two motions to consider —
one to uphold and one to deny. She stated she was sure that was just a clerical
issue because she was going to speak in terms of upholding the appeal. She
stated that she, too, thought it was only fair that after the City has finished its
moratorium, and they have established standards that are going to determine
how many of these stores are going to be permitted and in what areas, that this
particular property owner should be under the same provisions as the rest of the
property owners are. To include this in the conditions of approval implies that
they are going to have this restriction forever, even after the moratorium ends;
and she thought that was inappropriate. She stated that she supported doing a
moratorium four years before the Council actually took action to do so, and she
thought it was an important thing to do, but she certainly did not think that one
particular person should be held hostage just because right now they are in the
interim.
Council Member/Commissioner Longville made a motion, seconded by Council
Member/Commissioner McGinnis, that the hearing be closed; and that the
Mayor and Council uphold Mr. Yasin's appeal. (Note: The vote was taken
following additional discussion.)
Council Member/Commissioner Derry stated that the Council is still in the
middle of a policy decision —they've made a policy decision in the interim and
it's going to come back to them. However, he has a great deal of concern with
incorporating the terms of the interim policy as conditions of approval for a
project when they don't come to the Council except as an appeal; and it is
obvious that this has happened before.
He stated that he had a great deal of concern of this happening again with other
customers who are willing to do whatever needs to be done for them to get their
approvals. He stated that he had great concerns with policy being set at the
Planning Commission —that the Planning Commission is supposed to interpret
policy and interpret the code —it's not supposed to set policies. He stated that he
had a great deal of concern with this occurring in the future; and that he would
31 07/05/2005
prefer that this condition not be included, unless at some time there is an
ordinance in place that is permanent and sets out the standards by which such
approvals will be made.
Council Member/Commissioner McCammack stated that she respected Ms.
Ross' opinion greatly, and if some folks are getting very creative and ingenious
and misrepresenting the types of businesses that are going into certain locations,
it makes it very difficult for Development Services to enforce those conditions
through a moratorium. She stated that staff only has the ability to enforce a
CUP through the findings; therefore, if Ms. Ross felt this was an issue, based
on the comments and opinions of the Planning Commissioners, then she was
prepared to back her up.
She added that she was prepared to back her up because the City doesn't have
enough enforcement efforts —that if we had a code enforcement officer for every
street in the City, maybe we would have enough enforcement out there to take
care of the kinds of businesses that the Council did address as a policy. She
stated she had a real problem not backing up the Planning Commission and not
backing up Ms. Ross' comments; and advised that she was not prepared to
uphold the appeal because she didn't believe the City had enough enforcement
out there on the street to take care of business the way the Council has set into
policy.
Council Member/Commissioner Kelley asked Ms. Ross if including this
condition was a tool that the department is using to make sure that in the future
we don't have a corner that is full of 99-cent stores, smoke shops, and tattoo
parlors.
Ms. Ross stated that if it remains in as a condition of approval, then yes, that
would preclude them until such time as the applicant requests a reconsideration
of his permit.
The motion made by Council Member/Commissioner Longville, seconded by
Council Member/Commissioner McGinnis, to close the public hearing and
uphold the appeal carried by the following vote: Ayes: Council Members/
Commissioners Longville, McGinnis, Derry, Johnson. Nays: Council
Members/Commissioners Estrada, Kelley, McCammack. Absent: None.
30. Appeal of Planning Commission denial of request to subdivide 0.55 acre
into two lots — vacant parcel at corner of Yucca and Camellia Drives
Staff requested a continuance of this matter to July 18, 2005, due to lack of
required notification.
32 07/05/2005
Council Member/Commissioner McCammack made a motion, seconded by
Council Member/Commissioner Johnson, that the matter be continued to the
Council/Commission meeting of July 18, 2005.
The motion carried by the following vote: Ayes: Council Members/
Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson,
McCammack. Nays: None. Absent: None.
31. Set joint workshop - Mayor and Common Council & Planning Commission
- General Plan Update Program
It was noted that staff could not be ready for the workshop by the proposed date
of July 25; also, Deputy City Attorney Empeiio would be on vacation.
Council Member/Commissioner Kelley made a motion, seconded by Council
Member/Commissioner Johnson, that the Mayor and Common Council set a
joint workshop with the Planning Commission for Monday, August 8, 2005, at
5 p.m., in the Economic Development Agency Boardroom, to discuss the
General Plan Update Program.
The motion carried by the following vote: Ayes: Council Members/
Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson,
McCammack. Nays: None. Absent: None.
32. Public Comments
Betty Long, 1541 North "G" Street, San Bernardino, CA, spoke regarding the
need for people to look at what is going on around them in the City and the
County and to take action to restore things to the way our forefathers had them.
Jay Lindberg, 6340 Orange Knoll, San Bernardino, CA, spoke regarding the
City's fireworks laws and medical marijuana.
James Penman, 221 East Marshall Blvd., San Bernardino, CA, spoke
regarding the political process, including political campaigns and running for
office.
Ken Ballinger, 2947 Orange Street, San Bernardino, CA, spoke regarding an
open drain behind his house which floods his house and neighborhood when
there are heavy rains. He stated he has called various agencies on numerous
occasions and has never gotten a response, and he wants someone to fix it
before the next rainy season.
Mayor/Chairman Valles asked Mr. Ballinger to give his telephone number to a
member of her staff and they would follow-up with him.
33 07/05/2005
Esther Estrada, stated that at the last Council meeting the Mayor and Council
had discussed matters relative to the acquisition of properties in the downtown
area in closed session, and told how surprised she was to see the whole matter
spelled out in black and white in the newspaper the next day, and that the
information had been provided by City Attorney Penman. She stated that on
innumerable occasions Mr. Penman has admonished the Mayor, Council and
staff that they cannot and must not discuss issues that take place in executive
session outside of that room. She also took exception to some of the actual
comments made by Mr. Penman in the article.
City Attorney Penman stated he was very careful not to answer questions that
were discussed in closed session; that the issue of eminent domain has always
been a hot issue in the City; and explained the importance of a redevelopment
plan. Mr. Penman advised that following publication of the article in question,
he had called the newspaper. Subsequently, they published an article which
stated that the original article "incorrectly characterized a statement by City
Attorney James F. Penman —that the story should have clarified that Penman
would not confirm or deny getting a legal opinion in closed session."
S1. Report to Mayor and Common Council - various crime statistics
Garrett Zimmon, Chief of Police, provided an overview/explanation of the
crime statistic data contained in the backup materials and answered additional
questions posed by the Council.
Council Member/Commissioner McCammack made a motion, seconded by
Council Member/Commissioner Kelley, that the Mayor and Common Council
receive and file Chief Zimmon's report on various crime statistics.
The motion carried by the following vote: Ayes: Council Members/
Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson,
McCammack. Nays: None. Absent: None.
S2. Waiver of potential conflict of interest of law firm of Best, Best & Krieger
Council Member/Commissioner McGinnis made a motion, seconded by Council
Member/Commissioner Derry, that the potential conflict of the law firm of Best,
Best & Krieger, arising from that firm's past and current representation of the
City and the request of the City of Loma Linda to hire said firm regarding an
adverse position the City of Loma Linda has taken on a wastewater issue with
the City of San Bernardino Municipal Water Department, be waived.
34 07/05/2005
The motion carried by the following vote: Ayes: Council Members/
Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson,
McCammack. Nays: None. Absent: None.
33. Adjournment
At 6:28 p.m., the meeting adjourned. The next joint regular meeting of the
Mayor and Common Council and Community Development Commission is
scheduled for 1:30 p.m., Monday, July 18, 2005, in the Council Chambers of
City Hall, 300 North "D" Street, San Bernardino, California.
No. of Items: 35
No. of Hours: 5
RACHEL G. CLARK
City Clerk
By: ev
Linda E. Hartzel
Deputy City Clerk
35 07/05/2005