HomeMy WebLinkAbout07-18-2005 MinutesMayor Judith Valles
Council Members:
CITY OF SAN BERNARDINO Esther Estrada
300 N. "D"Street Susan Longville
San Bernardino, CA 92418 Gordon McGinnis
Neil Derry
Website: www.sbcity.org Chas Kelley
Rikke Van Johnson
Wendy McCauunack
MINUTES
MAYOR AND COMMON COUNCIL
AND THE
COMMUNITY DEVELOPMENT COMMISSION
AND THE
SAN BERNARDINO CITY HOUSING AUTHORITY
OF THE CITY OF SAN BERNARDINO
JOINT REGULAR MEETING
JULY 18, 2005
COUNCIL CHAMBERS
The joint regular meeting of the Mayor and Common Council, Community Development
Commission, and the San Bernardino City Housing Authority of the City of San
Bernardino was called to order by Mayor/Chairman Valles at 1:34 p.m., Monday, July
18, 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, Longville, Derry,
Johnson, McCammack; City Attorney Penman, City Clerk Clark, City Administrator
Wilson. Absent: Council Members/Commissioners McGinnis, Kelley.
Council Member/Commissioner Kelley Arrived
At 1:40 p.m., Council Member/Commissioner Kelley 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):
07/18/2005
Aguilar v. City of San Bernardino, Southern California Edison - San
Bernardino Superior Court Case No. 115557;
Mohammed Fawzi Hassan, et al. v. City of San Bernardino, et al. - United
States District Court Case No. EDCV 05-328 VAP (SGLx);
Kimberlyn Hearns v. City of San Bernardino, et al. - United States District
Court Case No. CV 05-04524 GHK (RZx);
City of San Bernardino, et al. v. Valerie Pope -Ludlam, et al. - San
Bernardino Superior Court Case No. SCVSS 108965;
Benjamin Brown v. City of San Bernardino - San Bernardino Superior
Court Case No. 107399;
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:
Timothy V. Laughlin, individual and dba Dream Construction
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. San Bernardino Unified School District
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. Conference with labor negotiator - pursuant to Government Code Section
54957.6:
Negotiator:
Linn Livingston, Director of Human Resources
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Employee Organization:
San Bernardino City Professional Firefighters
Conference with real property negotiator - pursuant to Government Code
Section 54956.8:
1. Pro e : 247 West Third Street
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
2. Property: 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
Villaseiior 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
3. Property: Southwest corner of "J" Street and 17' Street
APN 0144-123-03,0144-131-36, 0144-131-21,
and 0144-123-46
Owner/Seller: Gary Van Osdel, Executive Director, on behalf of
the Redevelopment Agency of the City of San
Bernardino, property owner(s)
Buyer: Inland Empire Concerned African American
Churches
IVDA Redevelopment Project Area (Meadowbrook Housing Project)
4. Proper 151 East 2n° Street
APN 0135-291-09
Negotiating Parties: Gary Van Osdel, Executive Director, on behalf of
the Redevelopment Agency and/or San Bernardino
City Housing Authority, as buyer, and Ivan
Miletich, property owner
Under Negotiation: Purchase price, terms and conditions
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Property: 161 East 2nd Street
APN 0135-291-11
Negotiating Parties: Gary Van Osdel, Executive Director, on behalf of
the Redevelopment Agency and/or San Bernardino
City Housing Authority, as buyer, and Alberto
Falcon and Maria Garcia, property owners
Under Negotiation: Purchase price, terms and conditions
6. Property: 167 East 2' Street
APN 0135-291-12
Negotiating Parties: Gary Van Osdel, Executive Director, on behalf of
the Redevelopment Agency and/or San Bernardino
City Housing Authority, as buyer, and Pedro
Medina Jr., property owner
Under Negotiation: Purchase price, terms and conditions
7. Property: 156 East King Street
APN 0135-291-27
Negotiating Parties: Gary Van Osdel, Executive Director, on behalf of
the Redevelopment Agency and/or San Bernardino
City Housing Authority, as buyer, and Miguel
Ramirez, property owner
Under Negotiation: Purchase price, terms and conditions
Property: 253 East King Street
APN 0135-302-09
Negotiating Parties: Gary Van Osdel, Executive Director, on behalf of
the Redevelopment Agency and/or San Bernardino
City Housing Authority, as buyer, and Victor
Licon, property owner
Under Negotiation: Purchase price, terms and conditions
Central City North Redevelopment Project Area
9. Property: 745 West 5`s 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
10. Proper 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
11. Proper 740 West 41h Street
APN 0134-093-19, 20, and 43
Negotiating Parties: Gary Van Osdel, Executive Director, on behalf of
the Redevelopment Agency, and Penhun
Ltd./Expo Ltd., property owner(s)
Under Negotiation: Purchase price, terms and conditions
City Attorney Penman announced that the following additional items would be
discussed in closed session:
Under Agenda Item No. 1A, Existing litigation:
Avila v. City - San Bernardino Superior Court Case Nos. SCVSS 078410 and
SCVSS 91020;
Under Agenda Item No. 113, Significant exposure to litigation:
The claim of Harold Sykes and Agenda Item Nos. 33-38;
Under Agenda Item No. 11), Personnel:
Agenda Item No. 8;
Under Agenda Item No. 1G, Conference with real property negotiator:
Property: Joint use of multi -purpose room/gymnasium at the Cesar
Chavez Middle School
6650 Magnolia Court, San Bernardino, California
Negotiating Parties: Marianne Milligan, City Attorney's Office, and Teri Baker,
City Administrator's Office, City of San Bernardino; and
Wael Elatar, Facilities Administrator, San Bernardino City
Unified School District, property owner
Council Member/Commissioner Kelley made a motion, seconded by Council
Member/Commissioner Estrada, and unanimously carried, that the EDA closed
session items be continued to August 1, 2005.
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Reading of Resolutions & Ordinances
Deputy City Clerk Sutherland read into the record the titles of all the resolutions and
ordinances on the regular agenda of the Mayor and Common Council, Community
Development Commission, and the San Bernardino City Housing Authority.
Council Member/Commissioner McGinnis Arrived
At 3:10 p.m., Council Member/Commissioner McGinnis arrived at the Council/
Commission meeting.
Invocation/Pledge of Allegiance
The invocation was given by Dr. Woody Hall of Lutheran Church of Our Savior, followed
by the pledge of allegiance, led by Diego Murillo, a student at Anderson School.
Moment of Silence
Mayor/Chairman Valles expressed condolences to the families and requested a moment of
silence in memory of Mary White, who spent many years serving the City through the San
Bernardino County Office of Small Business Development; and Elva Jane Henderson, co-
owner of Bobby Rays Bar-B-Que in San Bernardino.
2. Appointment - Robin Cochran - Fine Arts Commission - Council
Member/Commissioner McCammack
Council Member/Commissioner McGinnis made a motion, seconded by Council
Member/Commissioner Longville, that the appointment of Robin Cochran to the
Fine Arts Commission, as requested by Council Member/Commissioner
McCammack, be approved.
The motion carried by the following vote: Ayes: Council Members/
Commissioners Longville, McGinnis, Derry, Kelley, Johnson, McCammack.
Nays: None. Absent: Council Member/Commissioner Estrada.
Re -appointments - Board of Water Commissioners - Mayor/Chairman Valles
. Cecilia "Toni" Callicott - retroactive to May 8, 2005; new term to expire
May 8, 2011
. B. Warren Cocke - retroactive to May 13, 2001; new term to expire May 13,
2007
. Norine Miller - retroactive to May 9, 2004; new term to expire May 9, 2010
Council Member/Commissioner McGinnis made a motion, seconded by Council
Member/Commissioner Derry, that the re -appointments of Cecilia "Toni"
Callicott, B. Warren Cocke, and Norine Miller to the Board of Water
Commissioners, as requested by Mayor/Chairman Valles, be approved.
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4.
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The motion carried by the following vote: Ayes: Council Members/
Commissioners Longville, McGinnis, Derry, Kelley, Johnson, McCammack.
Nays: None. Absent: Council Member/Commissioner Estrada.
Presentations
A Certificate of Recognition was presented to Marcos Zapata for coming to the
rescue of Patricia Vincent, Executive Director of "Camp Fire USA". Patricia was
being assaulted and the perpetrator was trying to kidnap her, car jack her vehicle,
and use her as the driver. Marcos' quick reaction foiled the attempted crime in
progress as he wrestled the man to the ground and held him at bay until the police
arrived and arrested him.
Nick Gonzalez, Assistant to the Mayor, announced that the first -place winners of
the Fourth of July Parade Float Category were: The Pioneer Heritage Group for
Best of Theme; The Friends of Salute to the Route for Best Originality; Khemer
Buddhist Group for Best Community Spirit; Danzas De Aztlan for Best Cultural
Display; Club United for Best Performance; and Juan Pollo for Best in Humor.
Dennis Baxter, Co-chairman of the Fourth of July Parade Committee, presented
the Mayor with a reproduction of a poster called, "Hurray for the Flag 1902,"
from the Fourth of July of that year, in appreciation of her many years of support
of the Fourth of July Parade.
June Durr, Public Information Officer, Mayor's Office, read the names of the
following individuals who were presented a service pin award by Mayor/Chairman
Valles in recognition of their many years of dedicated service to the City:
Name Department Years of Service
Barry Reynolds Development Services 5
Mike Grubbs Development Services 20
Cynthia Cervantes One Stop Career Center 25
Announcements
Announcements were made by the Mayor, members of the Common Council,
elected officials, and a representative from the Chamber of Commerce regarding
various civic, community, and chamber events and activities.
Waive Full Reading of Resolutions & Ordinances
Council Member/Commissioner McCammack made a motion, seconded by Council
Member/Commissioner McGinnis, that full reading of the resolutions and
ordinances on the regular agenda of the Mayor and Common Council, Community
Development Commission, and the San Bernardino City Housing Authority, be
waived.
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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 McCammack made a motion, seconded by Council
Member/Commissioner McGinnis, 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: June 7,
2005; June 16, 2005; and June 23, 2005.
The motion carried by the following vote: Ayes: Council Members/
Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson,
McCammack. Nays: None. Absent: None.
7. Claims & Payroll
Council Member/Commissioner McCammack 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 July 13, 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 McCammack made a motion, seconded by Council
Member/Commissioner McGinnis, that the personnel actions, as submitted by the
Chief Examiner, dated July 18, 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. 2005-236 - Resolution of the Mayor and Common Council of the City of
San Bernardino granting an extension of the Cable Franchises with Adelphia
Communications, Charter Communications, and Mountain Shadows Cable.
Council Member/Commissioner McCammack made a motion, seconded by Council
Member/Commissioner McGinnis, that said resolution be adopted.
8 07/18/2005
Resolution No. 2005-236 was adopted by the following vote: Ayes: Council
Members/Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson,
McCammack. Nays: None. Absent: None.
10. RES. 2005-253 - Resolution of the Mayor and Common Council of the City of
San Bernardino authorizing the execution of a purchase agreement with the
Foundation for California State University, San Bernardino, and authorizing
the Purchasing Manager to award a purchase order to the Foundation for
California State University, San Bernardino, for the purchase of certain
television broadcast equipment.
Council Member/Commissioner Longville abstained because she is employed by
California State University, San Bernardino. She left the Council Chambers and
returned after the vote was taken.
Council Member/Commissioner Estrada made a motion, seconded by Council
Member/Commissioner Johnson, that said resolution be adopted.
Resolution No. 2005-253 was adopted by the following vote: Ayes: Council
Members/Commissioners Estrada, McGinnis, Derry, Kelley, Johnson,
McCammack. Nays: None. Abstentions: Council Member/Commissioner
Longville. Absent: None.
11. RES. 2005-237 - 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 McCammack made a motion, seconded by Council
Member/Commissioner McGinnis, that said resolution be adopted.
Resolution No. 2005-237 was adopted by the following vote: Ayes: Council
Members/Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson,
McCammack. Nays: None. Absent: None.
12. RES. 2005-254 - Resolution of the Mayor and Common Council of the City of
San Bernardino approving the hiring of Richards, Watson & Gershon to
represent the City regarding franchise transfers to Time Warner Cable.
(12A)
RES. 2005-254A - Resolution of the Mayor and Common Council of the City
of San Bernardino authorizing the execution of a Professional Services
Agreement between Richards, Watson & Gershon and the City of San
Bernardino to represent the City regarding franchise transfers to Time
Warner Cable. (12B)
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Council Member/Commissioner McGinnis made a motion, seconded by Council
Member/Commissioner Estrada, that said resolutions be adopted.
Resolution Nos. 2005-254 and 2005-254A were adopted by the following vote:
Ayes: Council Members/Commissioners Estrada, Longville, McGinnis, Derry,
Kelley, Johnson, McCammack. Nays: None. Absent: None.
13. 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 McCammack 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.
14. RES. 2005-238 — Resolution of the Mayor and Common Council of the City of
San Bernardino authorizing an agreement to renew the Agreement between
the City of San Bernardino and Wells Fargo Bank, N.A. for the provision of
banking services and the deposit of monies for one year beginning July 1, 2005
and ending June 30, 2006.
Council Member/Commissioner McCammack made a motion, seconded by Council
Member/Commissioner McGinnis, that said resolution be adopted.
Resolution No. 2005-238 was adopted by the following vote: Ayes: Council
Members/Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson,
McCammack. Nays: None. Absent: None.
15. RES. 2005-239 — 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 Mountain View Avenue at Thirteenth Street.
Council Member/Commissioner McCammack made a motion, seconded by Council
Member/Commissioner McGinnis, that said resolution be adopted.
10 07/18/2005
Resolution No. 2005-239 was adopted by the following vote: Ayes: Council
Members/Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson,
McCammack. Nays: None. Absent: None.
16. RES. 2005-240 - Resolution of the City of San Bernardino approving
Amendment No. 1 to Agreement for Services with Transtech Engineers, Inc.
for Engineering Plan Checking Services.
Council Member/Commissioner McCammack made a motion, seconded by Council
Member/Commissioner McGinnis, that said resolution be adopted.
Resolution No. 2005-240 was adopted by the following vote: Ayes: Council
Members/Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson,
McCammack. Nays: None. Absent: None.
17. RES. 2005-241 - Resolution of the City Council of the City of San Bernardino
amending the Liability Risk Coverage Agreement and the Joint Powers
Agreement creating the Big Independent Cities Excess Pool Joint Powers
Authority, and authorizing, ratifying, and approving certain other actions in
connection therewith.
Council Member/Commissioner McCammack made a motion, seconded by Council
Member/Commissioner McGinnis, that said resolution be adopted.
Resolution No. 2005-241 was adopted by the following vote: Ayes: Council
Members/Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson,
McCammack. Nays: None. Absent: None.
18. RES. 2005-242 - Resolution of the City of San Bernardino establishing a
Management and Confidential Employee Compensation and Benefits Plan and
repealing Resolution Nos. 2005-230, 2003-364, 2003-329, 2003-277, 2003-41
and 2002-104.
Council Member/Commissioner McCammack 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 adopted budget and
transfer $193,400 from General Government Account No. 001-092-5011 to various
departmental salary and benefit accounts in accordance with implementation of this
resolution.
The motion carried and Resolution No. 2005-242 was adopted by the following
vote: Ayes: Council Members/Commissioners Estrada, Longville, McGinnis,
Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None.
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19. RES. 2005-243 - Resolution of the City of San Bernardino amending
Resolution
resolution .
information
Unclassified).
No. 6413, Sections Twelve and Fourteen, entitled in part, "A
. . establishing a basic compensation plan . . ." by updating
codifying prior Council action (Management/Confidential and
Council Member/Commissioner McCammack made a motion, seconded by Council
Member/Commissioner McGinnis, that said resolution be adopted.
Resolution No. 2005-243 was adopted by the following vote: Ayes: Council
Members/Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson,
McCammack. Nays: None. Absent: None.
20. RES. 2005-244 - Resolution of the Mayor and Common Council of the City of
San Bernardino authorizing the Mayor or her designee to execute an
Agreement with the San Bernardino City Unified School District to provide
contractual services for before & after -school recreation programs at eighteen
(18) school district sites.
Council Member/Commissioner McCammack made a motion, seconded by Council
Member/Commissioner McGinnis, that said resolution be adopted.
Resolution No. 2005-244 was adopted by the following vote: Ayes: Council
Members/Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson,
McCammack. Nays: None. Absent: None.
21. RES. 2005-245 - Resolution of the Mayor and Common Council of the City of
San Bernardino authorizing the Mayor or her designee to execute Amendment
No. 1 to the Service Agreement between the City of San Bernardino and Boys
and Girls Club of San Bernardino Inc. to provide community services at the
Delmann Heights Community Center.
Council Member/Commissioner McCammack made a motion, seconded by Council
Member/Commissioner McGinnis, that said resolution be adopted.
Resolution No. 2005-245 was adopted by the following vote: Ayes: Council
Members/Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson,
McCammack. Nays: None. Absent: None.
22. RES. 2005-246 - Resolution of the Mayor and Common Council of the City of
San Bernardino authorizing the Mayor or her designee to execute a Contract
with the County of San Bernardino to administer a Program Continuation
Contract from the State of California Community Based Services Program
(CBSP) in the amount of $24,436 for the period of July 1, 2005 through June
30, 2006.
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Council Member/Commissioner McCammack made a motion, seconded by Council
Member/Commissioner McGinnis, that said resolution be adopted.
Resolution No. 2005-246 was adopted by the following vote: Ayes: Council
Members/Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson,
McCammack. Nays: None. Absent: None.
23. RES. 2005-247 - Resolution of the Mayor and Common Council of the City of
San Bernardino authorizing the Mayor or her designee to execute Amendment
No. 1 for Title III-B Contract through the County of San Bernardino
Department of Adult and Aging Services (DAAS) for assisted transportation
for a period of July 1, 2005 through June 30, 2006.
Council Member/Commissioner McCammack made a motion, seconded by Council
Member/Commissioner McGinnis, that said resolution be adopted.
Resolution No. 2005-247 was adopted by the following vote: Ayes: Council
Members/Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson,
McCammack. Nays: None. Absent: None.
24. RES. 2005-248 - Resolution of the Mayor and Common Council of the City of
San Bernardino authorizing the Mayor or her designee to execute Amendment
No. 1 for Title III-B Contract through the County of San Bernardino
Department of Adult and Aging Services (DAAS) for senior outreach services
from the period of July 1, 2005 through June 30, 2006.
Council Member/Commissioner McCammack made a motion, seconded by Council
Member/Commissioner McGinnis, that said resolution be adopted.
Resolution No. 2005-248 was adopted by the following vote: Ayes: Council
Members/Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson,
McCammack. Nays: None. Absent: None.
25. RES. 2005-249 - Resolution of the Mayor and Common Council of the City of
San Bernardino authorizing the Mayor or her designee to execute Amendment
No. 7 to the Agreement with San Bernardino City Unified School District,
relating to delivery of breakfasts, snacks, and lunches to Delmar Heights
Head Start Center.
Council Member/Commissioner McCammack made a motion, seconded by Council
Member/Commissioner McGinnis, that said resolution be adopted.
Resolution No. 2005-249 was adopted by the following vote: Ayes: Council
Members/Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson,
McCammack. Nays: None. Absent: None.
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26. RES. 2005-250 — Resolution of the Mayor and Common Council of the City of
San Bernardino authorizing the Mayor or her designee to execute Amendment
No. 1 to the Services Agreement between the City of San Bernardino and New
Hope Baptist Church to provide community services at the New Hope Family
Life Center.
Council Member/Commissioner McCammack made a motion, seconded by Council
Member/Commissioner McGinnis, that said resolution be adopted.
Resolution No. 2005-250 was adopted by the following vote: Ayes: Council
Members/Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson,
McCammack. Nays: None. Absent: None.
27. RES. 2005-251 — Resolution of the City of San Bernardino authorizing the
execution of a Second Agreement to employ Robert Curtis on a part-time basis
in Fiscal Year 2005/06.
Council Member/Commissioner McCammack made a motion, seconded by Council
Member/Commissioner McGinnis, that said resolution be adopted.
Resolution No. 2005-251 was adopted by the following vote: Ayes: Council
Members/Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson,
McCammack. Nays: None. Absent: None.
28. RES. 2005-252 — Resolution of the Mayor and Common Council of the City of
San Bernardino authorizing the execution of a purchase order to Filter Supply
Company for the purchase and installation of eighteen diesel particulate filters
to be utilized by the Refuse Division.
Council Member/Commissioner McCammack made a motion, seconded by Council
Member/Commissioner McGinnis, that said resolution be adopted.
Resolution No. 2005-252 was adopted by the following vote: Ayes: Council
Members/Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson,
McCammack. Nays: None. Absent: None.
29. Combine the Deputy City Attorney and Sr. Deputy City Attorney Classes into
one attorney series
Council Member/Commissioner McCammack made a motion, seconded by Council
Member/Commissioner Estrada, that the Mayor and Common Council combine the
Deputy City Attorney and Sr. Deputy City Attorney classes into one attorney
series, retaining the existing salary scales for the individual classifications, with
placement or movement within the series to be determined by the City Attorney.
14 07/18/2005
30.
The motion carried by the following vote: Ayes: Council Members/
Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson,
McCammack. Nays: None. Absent: None.
Implementation of the proposed Parks, Recreation & Community Services
Department Reorganization
Council Member/Commissioner McCammack made a motion, seconded by Council
Member/Commissioner Estrada, that the Mayor and Common Council:
Reclassify the position of Parks Project Manager, Range 4463, $4,469-
$5,432/month to Parks Superintendent, Range 4515, $5,792-$7,040/month;
Add the position of Recreation Superintendent, Range 4515, $5,792-$7,040/month;
Adjust the salary range by 10% for Administrative Services Manager from Range
4466,$4,536-$5,514/month to Range 4485, $4,987-$6,062/month; and
Leave the Assistant Director position unfunded.
The motion carried by the following vote: Ayes: Council Members/
Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson,
McCammack. Nays: None. Absent: None.
31. Public hearing - to consider a resolution initiating proceedings to adjust the
traffic systems fee, public park development and recreation fee, and planned
local drainage facilities fee; and to establish new impact fees for Police
Department facilities, equipment, and vehicles and Fire Department facilities,
equipment and vehicles
RES. 2005-255 - Resolution of the Mayor and Common Council of the City of
San Bernardino initiating proceedings to adjust the Traffic Systems fee, Public
Park Development and Recreation fee, and Planned Local Drainage Facilities
fee; and to establish new impact fees for Police Department facilities,
equipment, and vehicles and Fire Department facilities, equipment and
vehicles.
Mayor/Chairman Valles opened the hearing.
Fred Wilson, City Administrator, stated that it has been a number of years since
the City has looked at the impact fees it charges new development. The City
currently charges a traffic systems fee, a park and recreation fee, and a storm drain
fee, as well as many other fees. The City is also looking at adding some new fees,
which could potentially include a police and fire capital facilities fee and a parkline
dedication fee. Mr. Wilson stated that the City is in the process of conducting a
study that involves looking at the General Plan and how new development will pay
15 07/18/2005
only its fair share of those new facilities, and this study will take anywhere from
three to five months to complete. Mr. Wilson added that this resolution simply
notifies prospective development that the City intends to look at raising its fees.
Council Member/Commissioner Kelley stated that the study needs to be mindful of
the City's past when it collected a great deal of development fees in the Verdemont
area, and it was speculated that those fees were spent on Hospitality Lane. He
stated that the City needs to make sure the tracking mechanisms are in place to
show where the fees are stored, whether any interest is accruing on the fees, and
how those fees are being spent; and he requested that this information be included
in the Nexus Study.
Council Member/Commissioner Derry stated that mitigation fees are supposed to
mitigate potential impacts of the development in the community and most of those
impacts are directly related to the development itself such as street improvements,
etc., and in some instances modifications may need to be done at a later time in the
development to assure that there is adequate capacity, such as with sewer. He
stated that many cities use building fees from one area of the city and put them in
other areas where the need may have been, but where the mitigation did not have a
nexus. For the record, Mr. Derry wanted it made clear that they are not approving
any fee increases at this time, and if any proposed fee increases do occur, the
matter will come back to the Council for approval.
Council Member/Commissioner Estrada stated that fees that come from one area
and are spent in another area have primarily been tax increment monies, and in
those cases the law is very clear on how to do that. She stated that she has been
party to many loan agreements where areas are loaned money from another
redevelopment project area, but the purpose and use of those monies is clearly
identified. In some cases, these agreements can show that the money is going to be
used and it is going to impact a particular area such as traffic, which in turn may
impact another area. She stated that this is called mutual resolution because the
action is going to mutually impact both redevelopment project areas.
Council Member/Commissioner McCammack stated that they need to be sure that
they are addressing all the potential future costs in all of the yet -to -be -built
neighborhoods in this Nexus Study, so that all of the taxpayers throughout the City
won't have to bear the financial burden.
Council Member/Commissioner Longville stated that she wants to make sure that
the City doesn't do anything to reverse the credit on impact fees given to people
who will come in and redevelop the blighted areas that are filled with vacant,
boarded up buildings, as those incentives are desperately needed. She stated that in
these times of growth people will pay what the market will bear in the new areas,
but they will not pay what the market will bear in the areas that are not doing well.
No public comments were received.
16 07/18/2005
Council Member/Commissioner McCammack made a motion, seconded by Council
Member/Commissioner Johnson, that the hearing be closed; and that said
resolution be adopted.
The motion carried and Resolution No. 2005-255 was adopted by the following
vote: Ayes: Council Members/Commissioners Estrada, Longville, McGinnis,
Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None.
32. Public hearing — resolution imposing hens on property located within the City
of San Bernardino for uncollected business registration fees
RES. 2005-256 — Resolution of the City of San Bernardino imposing liens on
certain parcels of real property located within the City of San Bernardino for
uncollected business registration fees.
Mayor/Chairman Valles opened the hearing.
Council Member/Commissioner Estrada made a motion, seconded by Council
Member/Commissioner McGinnis, that the hearing be closed; that the City Clerk
be directed to administratively remove any properties from Exhibit A, which have
been paid prior to the hearing; and that said resolution be adopted.
The motion carried and Resolution No. 2005-256 was adopted by the following
vote: Ayes: Council Members/Commissioners Estrada, Longville, McGinnis,
Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None.
33. Appeal hearing regarding the results of a transient lodging tax audit for the
Budget Lodge (Continued from May 2, 2005)
The hearing remained open.
James Penman, City Attorney, stated that Agenda Item Nos. 33-38 were continued
in order to give Mr. Weiser, the attorney representing the appellants, and Mr.
Simmons, the attorney representing the City, the opportunity to discuss a
settlement. Mr. Penman stated that he had been informed by Mr. Simmons that
there was no settlement offer for any of the six motels on today's agenda and that
Mr. Weiser wanted to revisit the Astro Motel, which was heard at a previous
Council meeting. He informed Mr. Weiser that he would look into placing it on
the agenda for the next Council meeting.
Pursuant to Resolution No. 2000-279, City Clerk Clark administered an oath to the
following individuals that they would provide true and honest testimony:
Robert Simmons, Sr. Assistant City Attorney, stated that the City Clerk's Office
was asked to audit all the motels in the City. He stated that 36 motels were
17 07/18/2005
initially selected and those names were given to Mr. Al Capuchino, Principal
Auditor with Progressive Solutions, who has 45 years of experience as an
accountant auditing hotels, 30 years of which have dealt with auditing transient
occupancy type taxes. Mr. Simmons stated that the issue to be decided in the
appeal is the correct amount of the transient occupancy tax. He noted that at the
last meeting, Mr. Weiser presented many legal arguments that he felt were
inapplicable to this particular hearing.
Mr. Simmons stated that at the last hearing Mr. Weiser had indicated that his
clients were being selectively audited because they are members of the Hotel/Motel
Association. He stated that that statement was not true and that the City Clerk has
no knowledge whatsoever of the Hotel/Motel Association or its members. He
stated that the same audit standards were applied to each of the hotels that were
audited and the auditor was given no instructions by the City Clerk's Office on
how to conduct the audits. Mr. Simmons stated that Mr. Capuchino would talk
about the auditing procedures and the sampling techniques he applied to each hotel,
called GAAP, which stands for Generally Accepted Accounting Principles.
Cindy Buechter, Business Registration Supervisor, stated that the audit of the
Budget Lodge was conducted by Mr. Capuchino on October 14, 2003. She stated
that the discrepancies found that additional Transient Lodging Tax, penalties and
interest in the amount of $13,792.49 was owed to the City. A hearing was held
before the City Clerk on April 26, 2004, at which time the City Clerk upheld the
auditor's findings.
Mr. Simmons asked Ms. Buechter to explain how the hotels were selected.
Ms. Buechter stated that in September 2003 she supplied a list of all the hotels in
the City to Mr. Capuchino, including the owners names, addresses and phone
numbers, and also provided him with a copy of the City's current ordinance so he
would know how to proceed and what the laws were governing the City's TLT
ordinance. She stated that Mr. Capuchino proceeded to perform field audits of the
hotels/motels and that the City Clerk's Office did not give him any instructions
other than provide him with a copy of the ordinance.
Mr. Simmons asked Ms. Buechter if she had any knowledge of who the members
of the San Bernardino Hotel/Motel Association are.
Ms. Buechter stated that she had no knowledge of that information.
Mr. Simmons asked Ms. Buechter if she had provided Mr. Capuchino with any
instructions on how to conduct an audit.
Ms. Buechter stated that she did not provide Mr. Capuchino with any instructions;
and she added that he was hired because he is a specialist in that area.
18 07/18/2005
7-
Mr. Simmons asked Ms. Buechter to explain what was contained in the boxes that
were on the cart and where they were kept.
Ms. Buecheter stated that during the hearings in the spring of 2004, the Astro
Motel, Budget Lodge, Desert Inn Motel, and the Econo Lodge provided additional
documentation and wanted the City to perform a more thorough audit. She stated
that the records were sealed and kept in the City Clerk's vault until today.
Mr. Simmons asked Mr. Capuchino to step up to the podium and state his name
and occupation.
Al Capuchin, Independent Contractor, stated that he contracts with municipalities
throughout the State of California for the purpose of enhancing their revenue
recovery through the course of performing audits in business licenses, franchise
taxes and transient occupancy taxes.
Mr. Simmons asked how long Mr. Capuchino has been doing this.
Mr. Capuchino stated that he has been in the accounting profession for 45 years.
He has been associated with municipalities first as the City Auditor with the City of
Carlsbad and then as an independent contractor for approximately 28 years.
Mr. Simmons asked what information Mr. Capuchino was given when he met with
the City Clerk.
Mr. Capuchino stated that the City Clerk did not instruct him in any way. He first
made contact by letter informing the City Clerk's Office of the information he
needed from them, which was a list of the names and addresses of owners of each
hotel on their list. He then provided the Clerk's Office with a sample letter that
would be placed on City letterhead and sent to each hotel/motel informing them
that the City had contracted with him to independently review their records relative
to the transient occupancy tax. He also provided a sample of the letter that he
would be sending directly to the hotels/motels advising them of the date and time
of his arrival.
Mr. Simmons asked Mr. Capuchino if he had applied the same auditing standards
for each hotel he audited.
Mr. Capuchino stated that he has standard auditing procedures, but because each
motel does not keep records in the same fashion, in many cases they had to adjust
their auditing procedures so that it recognizes the different records they have to
review.
Mr. Simmons asked if Mr. Capuchino was familiar with Generally Accepted
Accounting Principles in terms of performing audits on motels.
19 07/18/2005
Mr. Capuchino stated that he follows both Generally Accepted Accounting
Principles and Generally Accepted Auditing Procedures.
Mr. Simmons asked Mr. Capuchino if he looked at every record of every
transaction when he performed the audits of all the hotels.
Mr. Capuchino stated that he makes inquiries of the owners as to the type of
records they have and the operating procedures they follow so he can formalize his
approach to reviewing their records. Some records are on computers, some are
manually prepared, and some are just the original documents bound together with
rubber bands.
Mr. Simmons stated that in each of these cases, Mr. Capuchino audited records for
a three-year period. He asked Mr. Capuchino to explain how he performed the
audit.
Mr. Capuchino stated that he followed Generally Accepted Auditing Procedures to
select a base year, and he finds it more convenient for the owners to select the most
current year because that way they don't have to get into storage for the records.
In this particular case, he requested records for the most current year, then he
made a selection of 1 month within those 12 months to make his samples, then he
tested all the records in that month. He stated that he tests clerical accuracy by
checking to see if the records for that month match the records that were sent to the
City and if they don't, he notes that exception as a variance and then later assesses
the motel for additional revenue if they reported less than they should have.
Mr. Simmons asked Mr. Capuchino if he had any knowledge of the San
Bernardino Hotel/Motel Association.
Mr. Capuchino stated that he knows it is an association, but doesn't know how it is
organized or who the members are.
Mr. Simmons asked Mr. Capuchino if the audit of the Budget Lodge was
performed in the manner just described.
Mr. Capuchino stated that they were late for the audit and when they did arrive
they took the position that the review would not be necessary because the fashion in
which they record their transactions is accepted by other cities. Mr. Capuchino
informed them that regardless of how other cities have accepted their procedures,
the City of San Bernardino wanted to review their records. He stated that the
records that they gave him to inspect at that particular time would not enable him
to perform the review in order to make a report to the City of the compliance with
all the requirements set by the City. Mr. Capuchin then arranged to drive to the
San Diego area where he went to the office manager at that time who was staying
at a motel that was owned by the same owner and the records were kept in his
personal motel room and that is where the records were examined. He stated that
it was a very uncomfortable environment in which to perform his review.
20 07/18/2005
Mr. Simmons stated that eventually Mr. Capuchino submitted his report to the City
Clerk with a narrative and the tabulation of the amount of taxes that were due.
Mr. Capuchino stated that he sends his reports to Progressive Solutions, which
contracts directly with the City. They then review his reports and make inquiries
and any changes they feel are necessary prior to being sent electronically to the
City.
Mr. Simmons asked Ms. Buechter if the reports attached to the backup for Agenda
Item No. 33 were the same reports she received from Progressive Solutions
outlining the amount of tax due to the City.
Ms. Buechter answered in the affirmative.
Frank Weiser, attorney on behalf of all the appellants, asked Ms. Buechter if she
ever provided him and/or the appellants with a list of all the motels that have been
audited in this general City-wide audit.
Ms. Buechter answered that she had not.
Mr. Weiser asked Ms. Buechter if she was present at the appeal hearings before
the City Clerk.
Ms. Buechter answered that she was present at the hearings.
Mr. Weiser asked if it was true that the Budget Lodge asked if they could provide
additional records to Mr. Capuchino and they were told by Ms. Clark that they
would have to pay for Mr. Capuchino's services at $100 per hour if they wanted to
have those records reviewed.
Ms. Buechter stated that it was her understanding that former Sr. Assistant City
Attorney Carlyle responded to the issue of the records being left at the hearing in
three separate letters to Mr. Weiser.
Mr. Weiser stated that the Budget Lodge and the other appellants did leave records
with the City Clerk.
Ms. Buechter stated that that was correct.
Mr. Weiser asked if those records were reviewed.
Ms. Buechter stated that since there was no response from Mr. Weiser to Mr.
Carlyle's letter, they did not proceed.
21 07/18/2005
Mr. Weiser stated that that was based upon Mr. Carlyle indicating that if they
wanted the records reviewed, they would have to pay for Mr. Capuchino's services
at $100 per hour.
Ms. Buechter added "or any of his choosing."
Mayor/Chairman Valles asked Mr. Weiser why all the documents were not ready
at the same time and why was it necessary to come up with extra documents after
the audit had been completed.
Mr. Weiser stated that there were issues that came up at the appeal itself, but he
noted that the appellants did try to provide the records as best they could. He
stated that it was his understanding that in a de novo hearing the City Clerk could
take new evidence at that time.
Mr. Weiser asked Mr. Capuchino if he remembered a question coming up during
the initial hearing for the Budget Lodge that if he was going to have to review
records left by the appellants he would have to charge them for his services.
Mr. Capuchino stated that he did not recall specifically, but that could be
confirmed by reviewing the mintues.
Mr. Simmons stated that attached to the backup on each of the appeals were copies
of letters from Mr. Carlyle to Mr. Weiser explaining that he wanted the City's
auditor to review these records and there would be a fee of $250 per hour. He
stated that Mr. Weiser was sent three separate letters asking him to respond and he
never did.
Mr. Weiser asked Mr. Capuchino if he had conducted audits and attended appeal
hearings before the City Clerk in other cities besides the City of San Bernardino.
Mr. Capuchino answered in the affirmative.
Mr. Weiser asked Mr. Capuchino if the appellants had provided records to him
with respect to the appeal.
Mr. Capuchino stated that appeals he had attended in other cities gave the motel an
opportunity to take exception to the findings of the audit, but every appeal he had
attended after the audit procedures were performed and requested by the motel was
for the purpose of seeking leniency from the City —they never questioned his
auditing procedures.
Mr. Capuchino stated that in respect to his auditing procedures and with respect to
the Budget Lodge, the initial finding was that they were assessed $22,000 with
interest and penalties.
22 07/18/2005
Ms. Buechter stated that at the hearing on April 26 relative to the Budget Lodge, it
was brought to her attention that ownership had been taken at a later date. The
City Clerk received a revised report based on the start date that Mr. Hall took
over, so the amount was revised from $22,000 to $13,792.
Mr. Capuchino stated that he was not involved in that revision —it came from the
corporate office of Progressive Solutions. He stated that he did the audit for a
three-year period without taking into consideration the date of ownership change.
Mr. Weiser stated that there was a mistake made by Progressive Solutions as far as
the amount charged the Budget Lodge.
Mr. Capuchino stated that there was no mistake —it was just brought to their
attention. He stated that had he been told of the date of the ownership, he would
have conducted the audit results from that date forward.
Mr. Weiser asked Mr. Capuchino if he had asked the City who was licensed to run
the Budget Lodge and when they took ownership, prior to auditing the Budget
Lodge.
Mr. Capuchino stated that the documents given to him did not indicate any change
in ownership date.
Mr. Weiser asked Mr. Capuchino how many years had he been performing audits
for the City of San Bernardino and whether he got paid on an hourly basis or a
contingency basis.
Mr. Capuchino stated that this was his first auditing engagement for the City of
San Bernardino and he charges a fixed rate of $100 per hour not to exceed a certain
amount. He stated that he contracts directly with Progressive Solutions and that
their arrangement with the City is information that he is not privy to.
Mr. Weiser asked Mr. Capuchino what was the amount he was going to charge the
appellants for reviewing the records.
Mr. Capuchino stated that no one had approached him for that purpose so he had
not arrived at a dollar amount.
Mr. Weiser stated that he understood that it was $250 per hour, with a $500
minimum.
Mr. Capuchino stated that he believed that was what the City had in their letter.
Mr. Weiser made the stipulation that any legal objections raised relative to the
Budget Lodge would apply to all the appeals.
23 07/18/2005
Mr. Simmons stated that he would stipulate to that, but he asked that Mr. Weiser
stipulate that the brief he presented to the Mayor and Council, with a copy to Mr.
Weiser, would also apply to all the appeals.
Mr. Weiser stated that that was fine.
Larry Hall, sole managing member of the Budget Lodge at Fairway Drive and
Camino Real, stated that he also owned four other motels located in El Cajon;
Victorville; Phoenix, Arizona; and Austin, Texas. He stated that he's been in the
motel business for 15 years and has been through many Transient Occupancy Tax
(TOT) audits and has never been found to owe a dime to any of the municipalities
that conducted audits. Mr. Hall stated that this audit was performed by a company
that works on a contingency basis. He stated that the City has received every
penny that was collected by his facility and for two years he paid under protest
because the City had taken the position that anyone who stayed there in excess of
30 days had to pay TOT taxes. He stated that he is now processing an appeal for a
refund, request for those monies that total $29,000.
Mr. Hall stated that this audit produced an original demand for $22,061 and after
he and his auditor pointed out certain errors, including the length of time the audit
was performed, that amount was then reduced by $8,200. Nearly half of the
remaining demand is penalty for alleged violations that remain completely in
dispute. In response to several statements made by Mr. Capuchino, Mr. Hall
stated that he spent nearly three or four hours with him on the first day and
produced a lot more documents than he has ever been asked to produce before, but
he did not have a list of what records to bring. Mr. Hall stated that his night
auditor lives at a motel in Victorville and he does the books for all five motels from
that location via the internet. He stated that every transaction that goes into one of
his motels goes into the computer at the time the customer is checked in, the
registration card and front desk register are filled in by hand, but the data that's in
the computer that is supposed to match is completely separate and is not auditable
or changeable by any of his staff for security reasons. Mr. Hall stated that if there
are any problems with check out dates, overages, or shortages, his auditor has both
sets of data to arrive at the right conclusion. He stated that his central business
office is in El Cajon, California, and after the records are completed, reviewed and
finalized each month, they come down on a monthly basis and bookkeeping issues
checks for TOT taxes, the electrical bill, payroll, etc. He added that Mr.
Capuchino was provided with an empty room so that he could have privacy.
Mr. Hall stated that during the appeal hearing they were asked for more documents
that were provided later that have not been used since then. He stated that the
documents were not requested prior to that date and they did not have a clear
listing of what they needed to bring the day of the hearing, so that is why more
data was brought forward after the first appeal hearing that was basically denied
and which led to this hearing. Mr. Hall stated that Mr. Capuchino knew exactly
what day they opened because the only records he could provide were dated after
24 07/18/2005
July 2001. He stated that Mr. Capuchino or his company made the six-month error
in the projections. He stated that the name of the business changed and he couldn't
do three years of auditing with only two and one-half years of records.
Mr. Hall stated that he could provide records showing every transaction since July
2001 and he could summarize the records on a computer printout on a daily,
weekly, monthly or annual basis. He stated that what is in dispute is not what they
paid, but Mr. Capuchino's interpretation of other fees that they should have
collected. Mr. Hall stated that Mr. Capuchino took numbers in that were gross
and added tax to them where he collects the tax within the figures that he was
working from so they should have been backed out and that is what is reflected on
their TOTS.
Mr. Weiser stated that given Mr. Capuchino's admission that he was charging the
City $100 per hour and the appellants were being charged $250 per hour, he raised
the equal protection and due process issues. He stated that they were willing to
provide those records on all the appeals, but they did not want to pay for it.
Council Member/Commissioner McCammack asked Mr. Hall what kind of
questions were asked at the appeal hearing that required him to provide more data.
Mr. Hall stated that it would have been data compiled to substantiate things they
had talked about that day, but he would have to refer to the minutes to refresh his
memory. He added that those documents had been produced by his staff.
Council Member/Commissioner McCammack asked Mr. Hall if he owned the
business or was he a partner in this business prior to its name change.
Mr. Hall stated that he had nothing to do with the previous business which was
called the Village Lodge and was owned by Dr. Thomas Lester. He stated that Dr.
Lester still owns the property, and that he is currently in a lease -option position.
He stated that he took it over on July 31, 2001, with the name Budget Lodge.
Council Member/Commissioner McCammack asked Mr. Hall if he understood that
he was to state the amount of the room charge and then add the tax to it and show
it separately.
Mr. Hall stated that he understood that that was one of the arguments —that he
needed to provide a receipt with it broken out separately; however, he stated that
making that happen accurately and correctly was almost impossible, but that it was
possible within the computer environment. Mr. Hall stated that the amount was the
same —he was basically paying the tax for the first 30 days.
Council Member/Commissioner McCammack repeated her question.
25 07/18/2005
Mr. Hall stated that when he gets his new computer system, he will be able to do
that. He understood that that was the request, but other cities are perfectly happy
with what he does and they opt for the accuracy of his reports.
Mr. Hall stated that he understood they were offered a settlement by the City to
reduce all of the interest and penalties and he told Mr. Weiser that he wanted to
turn down the offer because he did not believe he owed the tax.
Council Member/Commissioner McGinnis asked Mr. Hall if he had hired anyone
else to audit these records.
Mr. Hall stated that he didn't plan to do so until he knew the outcome of this
hearing.
Mr. McGinnis asked Mr. Simmons if he knew how much Progressive Solutions
charges for the audit.
Ms. Buechter stated that the City of San Bernardino has a contract with Progressive
Solutions only and does not have a contract with Mr. Capuchino. She stated that
she has no idea what the contract is between Mr. Capuchino and Progressive
Solutions, but Progressive Solutions does get a contingency at 121/z percent for any
additional revenue they find.
Mr. Weiser stated that he had misunderstood Mr. Capuchino's testimony that he
was charging the City $100 per hour and that the appellants were being asked to
pay him $250. He stated that this added to their bias claim.
Mr. Simmons stated that the City only wants the tax to which it is entitled. He
stated that Mr. Hall admitted in his testimony that he charges the same amount
whether there is tax or not, but the tax is only for the first 30 days, and he had
indicated that for the first week occupants would pay $140, and even for the sixth
week they would pay $140, unless he is showing that he is somehow absorbing the
tax himself, which also violates the City's ordinance. In terms of Mr. Hall asking
the City to audit his records for free, he stated that Mr. Hall was offered many
alternatives and ways to save costs in the letter sent to Mr. Weiser by Mr. Carlyle.
The City employs professionals all the time for various things and many times the
City gets a different rate than a member of the public could get from that provider
for whatever reason, but there is no duty owed to Mr. Hall or to any of Mr.
Weiser's clients. The City performed its audit and it has its audit results; and if the
appellants wanted to contest those results they could have hired any auditor of their
choosing to go through the same records and that could have been presented first to
the City Clerk and then to the Council. Mr. Simmons requested that the Mayor
and Council uphold the City Clerk's findings in this case and deny the appeal of the
Budget Lodge.
Mr. Hall added that there is nothing written anywhere that says he couldn't run a
special for the first 30 days.
26 07/18/2005
Council Member/Commissioner McCammack made a motion, seconded by Council
Member/Commissioner Derry, that the hearing be closed; and that the Mayor and
Common Council uphold the decision of the City Clerk and adopt her letter of
December 7, 2004, as its findings and conclusions, based upon the back-up
information submitted and any additional evidence presented at the hearing.
The motion carried by the following vote: Ayes: Council Members/
Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson,
McCammack. Nays: None. Absent: None.
34. Appeal hearing regarding the results of a transient lodging tax audit for the
Desert Inn Motel (Continued from May 2, 2005)
The hearing remained open.
Mr. Simmons asked Mr. Weiser if he was willing to stipulate that the testimony
given by Mr. Capuchin and Ms. Buechter from the Budget Lodge hearing could
be used in the remaining five hearings.
Mr. Weiser stated that he would so stipulate, adding the same legal objections he
raised above, except in the hearing for the Knights Inn, for which they will present
new evidence.
Cindy Buechter, Business Registration Supervisor, stated that Mr. Capuchino
completed his audit on October 21, 2003, and presented his findings to the City. A
hearing was held before the City Clerk on March 29, 2004, at which time she
upheld the auditor's findings that additional Transient Lodging Tax, penalties and
interest in the amount of $9,808.22 was owed to the City.
Mr. Simmons asked Ms. Buechter if the report included as part of the backup
materials was in fact the report that was received from Progressive Solutions
outlining their audit findings on the amount of tax owed by the Desert In.
Ms. Buechter answered in the affirmative.
City Attorney Penman advised the Council that they should consider the
information presented by Mr. Weiser and Mr. Simmons during their presentations
on the Budget Lodge and the information included in the backup, along with Mr.
Simmons' brief and the comments on that brief made by Mr. Weiser.
No public comments were received.
27
1001 NUM
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 decision of the City Clerk and adopt her letter of
December 7, 2004, as its findings and conclusions, based upon the back-up
information submitted and any additional evidence presented at the hearing.
The motion carried by the following vote: Ayes: Council Members/
Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson,
McCammack. Nays: None. Absent: None.
35. Appeal hearing regarding the results of a transient lodging tax audit for the
Econo Lodge (Continued from May 2, 2005)
The hearing remained open.
Cindy Buechter, Business Registration Supervisor, stated that Mr. Capuchino
conducted his audit on October 22, 2003, and a hearing was held before the City
Clerk on March 29, 2004, at which time she upheld the auditor's findings that
additional Transient Lodging Tax, penalties and interest in the amount of
$6,868.61 was owed to the City.
Mr. Simmons asked Ms. Buechter if the report included as part of the backup
materials was in fact the report that was received from Progressive Solutions
outlining their audit findings on the amount of tax owed by the Econo Lodge.
Ms. Buechter answered in the affirmative.
Mr. Weiser and Mr. Simmons stipulated that the information and testimony that
was offered on Agenda Item No. 33 relative to the Budget Motel also applied to the
Econo Lodge.
Mr. Weiser stated that he would so stipulate, adding the same legal objections he
raised on the Budget Motel.
City Attorney Penman advised that the Council should consider the information
presented by Mr. Weiser and Mr. Simmons during their presentations on the
Budget Lodge and the information included in the backup, along with Mr.
Simmons' brief and the comments on that brief made by Mr. Weiser.
No public comments were received.
Council Member/Commissioner Longville made a motion, seconded by Council
Member/Commissioner Estrada, that the hearing be closed; and that the Mayor and
Common Council uphold the decision of the City Clerk and adopt her letter of
December 7, 2004, as its findings and conclusions, based upon the back-up
information submitted and any additional evidence presented at the hearing.
28 07/18/2005
The motion carried by the following vote: Ayes: Council Members/
Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson,
McCammack. Nays: None. Absent: None.
36. Appeal hearing regarding the results of a transient lodging tax audit for the
Foothill Motel (Continued from May 2, 2005)
The hearing remained open.
Cindy Buechter, Business Registration Supervisor, stated that Mr. Capuchino
conducted his audit on November 25, 2003, and a hearing was held before the City
Clerk on March 29, 2004, at which time she upheld the auditor's findings that
additional Transient Lodging Tax, penalties and interest in the amount of
$1,120.53 was owed to the City.
Mr. Simmons asked Ms. Buechter if the report included as part of the backup
materials was in fact the report that was received from Progressive Solutions
outlining their audit findings on the amount of tax owed by the Foothill Motel.
Ms. Buechter answered in the affirmative.
Mr. Weiser and Mr. Simmons stipulated that the information and testimony that
was offered on Agenda Item No. 33 relative to the Budget Motel also applied to the
Foothill Motel.
Mr. Weiser stated that he would so stipulate, adding the same legal objections he
raised on the Budget Motel.
City Attorney Penman advised that the Council should consider the information
presented by Mr. Weiser and Mr. Simmons during their presentations on the
Budget Lodge and the information included in the backup, along with Mr.
Simmons' brief and the comments on that brief made by Mr. Weiser.
No public comments were received.
Council Member/Commissioner Estrada made a motion, seconded by Council
Member/Commissioner McCammack, that the hearing be closed; and that the
Mayor and Common Council uphold the decision of the City Clerk and adopt her
letter of December 7, 2004, as its findings and conclusions, based upon the back-
up information submitted and any additional evidence presented at the hearing.
The motion carried by the following vote:
Commissioners Estrada, Longville, McGinnis,
McCammack. Nays: None. Absent: None.
Ayes: Council Members/
Derry, Kelley, Johnson,
07/18/2005
37. Appeal hearing regarding the results of a transient lodging tax audit for the
Knights Inn (Continued from May 2, 2005)
The hearing remained open.
Cindy Buechter, Business Registration Supervisor, stated that Mr. Capuchino
conducted his audit on November 5, 2003, and a hearing was held before the City
Clerk on March 29, 2004, at which time she upheld the auditor's findings that
additional Transient Lodging Tax, penalties and interest in the amount of
$1,523.61 was owed to the City.
Mr. Simmons asked Ms. Buechter if the report included as part of the backup
materials was in fact the report that was received from Progressive Solutions
outlining their audit findings on the amount of tax owed by the Knights Inn.
Ms. Buechter answered in the affirmative.
Mr. Weiser and Mr. Simmons stipulated that the information and testimony that
was offered on Agenda Item No. 33 relative to the Budget Motel also applied to the
Knights Inn in addition to whatever Mr. Weiser had to offer specifically on this
particular appellant.
Mr. Weiser stated that he would so stipulate, adding the same legal objections he
raised on the Budget Motel.
Pursuant to Resolution No. 2000-279, City Clerk Clark administered an oath to the
following individuals that they would provide true and honest testimony:
Dinish Patel, General Manager of the Knights Inn, San Bernardino, stated that he
was asked by Mr. Capuchino how he accepted his vouchers. He provided Mr.
Capuchino with a printout of the vouchers for 2000, 2001 and 2003; however, he
stated that Mr. Capuchino did not check the folios, which explain the room tax and
the room rent. Mr. Patel provided the folios for three months in 2002, and for all
of 2001. (Mr. Penman called a short recess at this time in order to give staff the
opportunity to review the documents.)
City Attorney Penman advised that the Council should consider the information
presented by Mr. Weiser and Mr. Simmons during their presentations on the
Budget Lodge and the information included in the backup, along with Mr.
Simmons' brief and the comments on that brief made by Mr. Weiser.
After reviewing the documents, Mr. Simmons stated that the audit findings were
based on the actual registration cards that contained different information than what
was shown on the computerized summary that was reviewed in the records. He
asked Mr. Capuchino to explain the findings of the audit compared to the record.
30 07/18/2005
Mr. Capuchino stated that they looked at the records and he didn't find any
exception there other than what he had seen earlier in his examination of Mr.
Patel's records. In fact, he stated that his audit report commended the facility for
their records and the fact that they do properly separate the tax from the room rate,
but when it comes to social agencies providing lodging for individuals that require
that assistance, this hotel, like others in San Bernardino, is not alone. Consistently
throughout the City, hotels do not acknowledge that the $40 flat rate they receive
from the County has tax included —they make that assumption —but there's nothing
contained in the document that's provided by the County or in the document they
provide to the tenant that recognizes the tax as being included in the $40 flat rate.
When they make the entry into their records, they do separate it, but the City is
quite clear in that this has to be related to the occupant that is staying on the
premises, and that is where the exception took place.
Mr. Simmons asked Mr. Capuchino why the tax was not shown separately on the
registration card.
Mr. Capuchino stated that that was because the County pays the bill, not the
tenant. He stated that they take the tax out of the $40 flat rate when they make
their entries into their computer records, which is inconsistent with the
requirements of the Code, so they were assessed for the tax based on the $40 flat
rate.
Council Member/Commissioner McCammack asked Mr. Penman how the City
would find out what a motel would charge when relocating people from dwellings
that are not up to code.
Mr. Penman stated that the City, like the County, has to comply with the City's
ordinances. Once an ordinance is passed by the Mayor and Council it becomes a
law and under State law it has the full force and effect of the law. The City has to
comply with its own Charter and its own ordinances. Just as the City could not
waive the TLT when someone is placed in a motel, neither can the County or any
other government entity waive the TLT by saying they would only pay $40 for a
voucher. When giving vouchers, the County has the right to choose to pay only
$40 and the motel owner has to make the decision whether to accept that $40 and
pay part of that as the TLT, or pay the TLT out of his or her own pocket, but a
motel owner cannot say that the County only gave him $40, so he was just going to
take the $40 and was not going to pay the TLT. Mr. Penman stated that he doesn't
know what the motels do with the money the City pays them when they relocate
someone. He stated that they ask the motel what their rates are and they try to
negotiate the best rate they can, but there is nothing they give the motel owner that
says they are exempt from the TLT. Motel owners are still expected to comply
with the City's ordinances because no one has the authority to make an exception
to a City law, State law, or Federal law.
Council Member/Commissioner McGinnis asked if they could reduce their price so
that the price of the room and the tax is under the $40.
31 07/18/2005
Mr. Capuchino stated that the question of the audit assessment was the requirement
of the City of the hotel relating to the tenant and how much of that amount was rent
and how much was tax and this was not done in this particular situation. It was
recorded after he collected the money into his records, but it was never
communicated to the occupant that was staying there.
Council Member/Commissioner McGinnis asked if Mr. Patel could reduce the
price to $36 and then take $3.60 as the tax as long as he tells the person that that's
what he's doing and then he puts it in writing.
Mr. Capuchio stated that then it would be documented that way.
Council Member/Commissioner McCammack clarified that the owners need to
document the price they're charging for the room, they need to document the TLT
separately, and then the guest must be given that information.
Mr. Weiser requested that the records be admitted into the evidence.
Mr: Penman advised the Council that they should receive the records and take a
few moments to look at them before they make a decision on how they want to
vote.
Mr. Simmons objected and stated that the records presented were not relevant to
the actual audit as they were not the records reviewed in the audit —they were not
the original registration cards —they were computer summaries.
Mr. Penman stated that in administrative hearings it was best to accept and
consider all the evidence. He recommended that the Mayor overrule the objection
made by Mr. Simmons and give the Council time to review the documents that Mr.
Weiser asked to be admitted into the record.
Council Member/Commissioner Longville asked Mr. Simmons if he could
summarize the contents of the files she was being asked to review.
Mr. Simmons stated that the documents were a ledger type summary of each guest
who paid with a County voucher. (He requested that each Council Member take a
folder and follow along with him.) The original registration card viewed by Mr.
Capuchin showed $40. When it was entered on the computer ledger it showed
rent of $36 and some change and tax of $3.60. He stated that those are not the
documents that are given to the occupant of the room. This is done for internal
purposes for preparation of his tax return. Mr. Simmons cited Municipal Code
Section 355.030(A) Collection of Tax, which states, "Each operator receiving a
room rental payment that is subject to the transient lodging tax, at the time of
receipt of the room rental payment, shall collect the amount of the tax imposed.
The operator shall provide a receipt for payment of the transient lodging tax to the
transient." Also, Municipal Code Section 3.55.070(A)(5) Records, states that the
32 07/18/2005
registration card shall show "the room rental to be charged for the lodging space."
So if the registration card shows $40, the auditor has to presume that the room rate
is $40 as opposed to these records which are done after the room has been rented.
Mr. Simmons stated that if the room rental was $40, the occupant should have paid
$4 in tax, which is a difference of about $.33 per room times a lot of transactions
over a three-year period.
Council Member/Commissioner Derry asked if a printed receipt was provided to
customers at the end of their stay.
Mr. Patel stated that the customer is given a printout when he checks out.
Mr. Weiser asked Mr. Capuchino if he was saying that Mr. Patel did not pay the
tax or was there a dispute with the amount of the tax.
Mr. Capuchino stated that the documents he reviewed showed $40 as a flat fee
being recorded as a split between the rent and the tax, but it was not noted on the
original documents or the registration card.
Mr. Weiser asked who Mr. Patel was supposed to charge for the tax —the transient
or the County.
Mr. Capuchino stated that by definition the tax is the transient's responsibility.
When Federal agencies pay the room rent for the occupant and they claim
exemption because they are a federal agency, but the individual staying there is the
occupant and by the length of stay he, by definition, is a transient, the tax would be
imposed over and above the voucher amount that was paid by the agency. He
stated that the tax could be charged to the transient or Mr. Patel could create a
document that separates the amount of rent from the tax, and as long as he
corresponds that to the individual who is staying there, that would be acceptable.
Mr. Weiser asked Mr. Capuchino if he was aware that Mr. Patel could charge the
County for the tax.
Mr. Capuchin stated that the County is not exempt and could be billed for the tax.
He stated that it was not the City's responsibility to dictate operating procedures
and that's what he explained to the operators. They only have to comply with the
requirements of the City's ordinance, which is specific in its requirements, one of
which is that the tax be disclosed to the transient and the amount of the rent
separated from the tax.
Council Member/Commissioner McCammack stated that she wanted clarification
from Mr. Penman in that the law states that when the guest checks in they are
required to be told what the room rate is separate from the tax. If the motel owner
decides to tell the guest that the room rate is $36 plus some change and then the tax
is 10 percent, or $3.60, and then that total is $40, that's his prerogative, but he has
to do that upon the check -in of the guest on the written signature card or whatever
33 07/18/2005
they fill out when the guest checks in. So the difference between that and what this
particular motel owner did was that he reconciled this after the guest checked in.
Mr. Capuchino stated that he didn't know the sequence, all he knew is that the
information that was filled out on the documents he saw during his testimony in
February did not document that nor was it related to the guest upon check -in.
Mr. Weiser stated that he wanted to make an objection to the effect that he took
serious issue with the City Attorney's analysis that there is even a tax owed. He
stated that the County is paying it and he didn't think you could tax the County.
He stated that Mr. Simmons made a mistake when he cited the present code and his
definition of a transient occupancy is also tied into consideration of rent and who
pays the rent. Mr. Weiser stated that there is also a section for exemptions that
you cannot tax anyone who it is beyond your power to tax and he didn't believe the
County is a person defined as the person subject to the tax. He stated that these are
tax exempt transactions to begin with. Mr. Patel did in fact pay them, but they are
not persons as defined under the City's Code and they would have an exemption as
a matter of law.
-Mr. Weiser stated that there was no evidence contradicting that Mr. Patel did in
fact tell the guest at some point the amount of the tax and how it is broken up. He
didn't see what the difference was in telling them in the beginning or telling them
at the end of the first day —they were still informed.
Mr. Weiser stated that these were occupants being paid by the County and these
are people who cannot afford apartments and they are in fact being paid by the
County. He stated that they are not able to pay the tax themselves, and if you are
going to say that you can impose the tax on these people, you are in fact
discriminating on the matter of housing.
Mr. Penman stated that the ordinance is clear that it is the transient lodger who is
taxed. He stated that he knows for a fact that the County pays the City's Transient
Occupancy Tax when they put up witnesses in the Radisson Hotel who are going to
testify in court. He stated that the argument that you cannot tax the County is
irrelevant because the tax is on the transient and it is up to the motel owner to
decide whether or not to accept the amount of money the County is willing to pay
for a person. If they choose to accept that amount, then they owe the tax that the
ordinance prescribes. He stated that you're not taxing the County, you're taxing
the occupant of the room.
Mayor/Chairman Valles stated that in looking at the printouts, it appears that from
the $40 Mr. Patel gets from the County, he has broken it down to $36.36 for the
room and $3.64 for the tax.
Mr. Patel stated that if they charge these people $4 in tax they will simply move on
to the next City because they don't have money to spare.
34 07/18/2005
KI:I
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 decision of the City Clerk and adopt her letter of
December 7, 2004, as its findings and conclusions, based upon the back-up
information submitted and any additional evidence presented at the hearing.
The motion carried by the following vote: Ayes: Council Members/
Commissioners Estrada, Longville, Kelley, McCammack. Nays: Council
Members/Commissioners McGinnis, Derry. Absent: Council Member/
Commissioner Johnson.
Appeal hearing regarding the results of a transient lodging tax audit for the
Terrace Motel (Continued from May 2, 2005)
The hearing remained open.
Mr. Simmons stated that he had been informed by Cindy Buechter, Business
Registration Supervisor, that the Terrace Motel paid the tax, including penalties
and interest.
Council Member/Commissioner McCammack made a motion, seconded by Council
Member/Commissioner Estrada, to table the matter. (No vote was taken at this
time.)
Mr. Weiser stated that the appellants could still request a refund even though
payment was made under protest.
Cindy Buechter, Business Registration Supervisor, stated that Mr. Capuchino
conducted his audit on November 12, 2003, and a hearing was held before the City
Clerk on March 29, 2004, at which time she upheld the auditor's findings that
additional Transient Lodging Tax, penalties and interest in the amount of $375.45
was owed to the City.
Mr. Simmons asked Ms. Buechter if the report included as part of the backup
materials was in fact the report that was received from Progressive Solutions
outlining their audit findings on the amount of tax owed by the Terrace Motel.
Ms. Buechter answered in the affirmative.
Mr. Simmons asked the Mayor and Council to uphold the amount of the
assessment including tax, penalties and interest, and deny the appeal on the Terrace
Motel.
35 07/18/2005
Mr. Weiser and Mr. Simmons stipulated that the information and testimony that
was offered on Agenda Item No. 33 relative to the Budget Motel also applied to the
Terrace Motel.
Mr. Weiser stated that he would so stipulate, adding the same legal objections he
raised on the Budget Motel.
Council Member/Commissioner McCammack made a substitute motion, seconded
by Council Member/Commissioner Estrada, that the hearing be closed; and that the
Mayor and Common Council uphold the decision of the City Clerk and adopt her
letter of December 7, 2004, as its findings and conclusions, based upon the back-
up information submitted and any additional evidence presented at the hearing.
The motion carried by the following vote: Ayes: Council Members/
Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson,
McCammack. Nays: None. Absent: None.
39. Public hearing - resolution ordering vacation - proposed vacation of the
east/west street lying between "D" Street and Stoddard Avenue (Continued
from July 5, 2005)
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).
Mayor/Chairman Valles stated that staff recommended that this item be continued
to the next Council meeting.
Council Member/Commissioner McGinnis made a motion, seconded by Council
Member/Commissioner Estrada, that the matter be continued to the Council/
Commission meeting of August 1, 2005.
The motion carried by the following vote: Ayes: Council Members/
Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson,
McCammack. Nays: None. Absent: None.
40. Workshop for the Capital Improvement Program (CIP) - to review the Five-
year Capital Improvement Program - Fiscal Years 2005/2006 - 2009/2010 -
EDA Boardroom (Continued from July 5, 2005)
36 07/18/2005
The following documents were submitted into the record: City of San Bernardino,
2005106-2009110 Capital Improvements Program General Buildings, Streets and
Street Lighting, Sewers, Storm Drains, Traffic Controls, and Parks and Recreation;
Capital Improvement Public Services Street Division Presentation; and 2005-2010
Capital Improvements Program, City of San Bernardino, Parks, Recreation and
Community Services, June 2005.
James Funk, Director of Development Services, stated that preparing a CIP is a
year-round process for staff that appears from the outside to be an objective
process, but there are considerable subjective and judgmental components that
enter into the process. He stated that this year's CIP contains 345 projects, and the
budget totals over $44,400,000, compared to last year's CIP budget which totaled
$35,500,000. Mr. Funk stated that included in this year's CIP is $23,450,000 in
carryover funds for on -going projects including pavement rehabilitation projects
that have been completed, but have not yet been closed out by the Finance
Department. He added that more than 20 of these carry-over projects were
awarded last fiscal year and are either about ready to get under construction or are
under construction at the present time. He stated that the largest carry-over project
is SS05-25, the Victoria Avenue Improvement Project, totaling over $5 million in
carryover funds. A design contract was awarded to Engineering Resources of
Southern California at the Council meeting of January 10, 2005, and completion of
the design is expected in October 2005. Also included in this fiscal year's CIP is
anticipated revenue totaling $21 million, almost $10 million of which is anticipated
to come from a proposed State infrastructure loan.
Representatives from Development Services; Facilities Management; Public
Services; and Parks, Recreation and Community Services presented an overview of
current, recently completed, and proposed CIP projects in their respective areas.
Council Member/Commissioner Longville made a presentation of several streets in
the Second Ward that are in dire need of repair.
No action was taken.
41. Authorization to establish a three-way stop at the intersection of Crestview
Avenue and 18' Street
Council Member/Commissioner Longville made a motion, seconded by Council
Member/Commissioner McGinnis, that the Mayor and Common Council authorize
the establishment of a three-way stop at the intersection of Crestview Avenue and
18' Street subject to the results of the traffic counts as noted in the staff report
dated July 13, 2005.
The motion carried by the following vote:
Commissioners Estrada, Longville, McGinnis,
McCammack. Nays: None. Absent: None.
Ayes: Council Members/
Derry, Kelley, Johnson,
37
07/18/2005
COMMUNITY DEVELOPMENT COMMISSION
Staff Present
Mayor/Chairman Valles; Council Members/Commissioners Estrada, Longville, McGinnis,
Derry, Kelley, Johnson, McCammack; City Attorney Penman, City Clerk Clark,
Economic Development Agency Executive Director Van Osdel. Absent: None.
R42. Public hearing - Disposition and Development Agreement - TELACU
Development, LLC (40' Street Redevelopment Project Area)
Resolution of the Mayor and Common Council of the City of San Bernardino
approving the 2005 49`s Street Single Family Residential Disposition and
Development Agreement by and between the Redevelopment Agency of the
City of San Bernardino ("Agency") and TELACU Development, LLC
("Developer") (TELACU 49th Street New Homes Project - 40'h Street
Redevelopment Project Area). (R42A)
Resolution of the Community Development Commission of the City of San
Bernardino approving and authorizing the Executive Director to execute the
2005 49`s Street Single Family Residential Disposition and Development
Agreement by and between the Redevelopment Agency of the City of San
Bernardino ("Agency") and TELACU Development, LLC ("Developer")
(TELACU 49' Street New Homes Project - 40`s Street Redevelopment Project
Area.). (R42B)
Note: No backup materials were distributed.
Mayor/Chairman Valles stated that staff requested that this item be continued to the
next Council meeting.
Council Member/Commissioner McGinnis made a motion, seconded by Council
Member/Commissioner Estrada, that the matter be continued to the Council/
Commission meeting of August 1, 2005.
The motion carried by the following vote: Ayes: Council Members/
Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson,
McCammack. Nays: None. Absent: None.
R43. Public hearing - Disposition and Development Agreement by and between the
Redevelopment Agency of the City of San Bernardino and Arrowhead Central
Credit Union (Central City South Redevelopment Project Area)
38 07/18/2005
Resolution of the Mayor and Common Council of the City of San Bernardino
approving the 2005 Disposition and Development Agreement by and between
the Redevelopment Agency of the City of San Bernardino ("Agency") and the
Arrowhead Central Credit Union, A California Corporation ("Developer") —
(Central City South Redevelopment Project Area). (R43A)
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") to execute
the 2005 Disposition and Development Agreement by and between the Agency
and Arrowhead Central Credit Union, A California Corporation
("Developer") — (Central City South Redevelopment Project Area). (R43B)
Note: No backup materials were distributed.
Mayor/Chairman Valles stated that staff requested that this item be continued to
September 6, 2005.
Council Member/Commissioner Johnson made a motion, seconded by Council
Member/Commissioner Estrada, that the matter be continued to the Council/
Commission meeting of September 6, 2005.
The motion carried by the following vote: Ayes: Council Members/
Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson,
McCammack. Nays: None. Absent: None.
44. Appeal of Planning Commission denial of a request to subdivide 0.55 acre into
two lots (Continued from July 5, 2005)
Mayor/Chairman Valles opened the hearing.
Valerie Ross, City Planner/Deputy Director of Development Services, provided
highlights of the staff report. She stated that this parcel map originally was
submitted as a three -lot parcel map, but was later amended by the developer to
include just two lots. Ms. Ross stated that based on their review of the application
and their knowledge of the area, the Planning Commission determined that the
proposed parcel map of this subdivision was not consistent with the General Plan
and did not retain the scale and character of the existing residential neighborhood.
She stated that the lot adjacent to this lot and those that are northerly of Yucca
Drive are similarly sized. The lots that are a little bit smaller are on the south side
of Yucca Drive. She stated that this particular lot had a house on it that was
burned during the "Old Fire" and it was staffs understanding that the original
owners did not wish to rebuild and sold the lot. Ms. Ross stated that she wanted to
point that out because staff did not believe that a subdivision was necessary in
order to make this developable or feasible.
39 07/18/2005
Ms. Ross stated that after additional review and after hearing the Planning
Commission's comments, staff recommended that the Mayor and Council deny the
appeal and uphold the Planning Commission's denial of Tentative Parcel Map No.
16880, based upon the Findings of Fact in the April 13, 2005 memorandum to the
Planning Commission.
Pursuant to Resolution No. 2000-279, City Clerk Clark administered an oath to the
following individuals that they would provide true and honest testimony:
Mike Duffy, Project Engineer, stated that the creation of two parcels would
average roughly 12,000 square feet. He stated that the five parcels that are the
closest in the same block run about 14,000 square feet and all the parcels on the
two blocks south of the subject property run between 9,000 and 11,000 square feet.
He stated that there are half -acre parcels spread out to the north and northeast of
this parcel and there are only about six of them in these two blocks. Mr. Duffy
stated that because of frontage and depth requirements, he did not believe this
subdivision would set a precedent where all these lots would change in size and
shape. He stated that the subject property meets all the minimum requirements and
he felt it would be a good fit for this kind of subdivision.
Jesse Corral, appellant and one of the property owners, stated that their intention
was to subdivide the lot and build two homes that would add value to the existing
homes.
Michael Coppess, attorne}4 representing the owners, stated that the subject lot is in
the RS, Residential Suburban, land use district, which allows single-family
residential development on lots of 7,200 square feet. He stated that the initial
proposal to split the property into three lots was well within the zoning designation
for this site. Due to staff s recommendation the proposal was changed, although it
was his opinion that the initial proposal for three lots was consistent with the
General Plan and would meet all General Plan and Development Code
requirements for the site. Mr. Coppess stated that as he read the Planning
Commission staff report he agreed with staffs recommendation that the requested
lot split be granted, and in doing so, they found that there was General Plan
consistency.
Ms. Ross stated that several homes were lost in this area due to the "Old Fire" and
all of them are going in on existing lots of record. She stated that prior to the "Old
Fire" and today this is still a stable neighborhood and it is not a neighborhood in
transition, which is one of the factors the Planning Commission looked at in
recommending denial. Ms. Ross stated that just because there is a vacant parcel
because a house burned down, they didn't believe that was reason enough to
further subdivide it as opposed to replacing it. The policies and guidelines that the
Council has adopted to encourage fire rebuilds as far as no fees for any City
services, even if it is an increase in the footprint size from what was there
40 07/18/2005
previously, the Council has indicated their desire to maintain and help re-establish
stable neighborhoods.
Jane Sneddon, 3530 Camellia Drive, San Bernardino, CA, asked that the Council
uphold the Planning Commission's decision of April 5, 2005, and deny the lot split
at the corner of Yucca and Camellia Drive in the Del Rosa Estates area. She stated
that if the "Old Fire" had not ravaged the area, this lot would still be occupied by a
single-family residence and she felt that a speculator should not be allowed to come
in and change the character of the neighborhood. Ms. Sneddon stated that several
of the lots in the area are as large if not larger than the lot in question, but if the
Council grants this lot split a precedent will be set that would allow other lots to be
split and that would be extremely detrimental to the existing homes.
Evelyn Alexander, President of the Del Rosa Neighborhood Action Group, P.O.
Box 30491, San Bernardino, CA, stated that she had been asked by the members
living in the Del Rosa Estates to speak in opposition of the proposed subdivision of
the properties at Yucca and Camellia. She asked that the Council follow the
recommendation of the Planning Commission and deny the subdivision of the
property.
George Gorian, 3840 El Camino Drive, San Bernardino, CA, stated that he
believed this action would set a precedent and requested denial of the project.
Martin Chandler, 1520 Yucca Drive, San Bernardino, CA, stated that this request
was not based upon a need to rebuild —it was based solely upon greed. He stated
that he believed the decisions formed today would determine not only the number
of houses that would be built on the lot in question, but all the other lots on the
street as well. He stated that the present average lot size in his neighborhood is
19,500 square feet, much larger than that proposed by the developers. Mr.
Chandler stated that the potential is for the creation of an unreasonable doubling of
the number of houses on this small street including the properties adjacent to and
across the street from his own home. He stated that the developers are going to
cram these houses onto lots where once only a single home stood, then they are
going to collect their profits and move on leaving the residents with the
overcrowding and the congestion.
Mr. Chandler stated that one of his biggest worries is with street congestion
because cars will be forced to park on the street, which will be a liability, it will be
unsafe, and it is completely unacceptable to the residents. Mr. Chandler stated that
he didn't think it was morally right for the City Council to allow the character of
their well -established neighborhood to be destroyed forever simply because they
happen to be victims of the "Old Fire". These lots once only had a single home on
them and that's the way they want to keep it. He noted that the Planning
Commission decided to change their original recommendation after hearing the
concerns of the residents, and he hoped the City Council would show the same
compassion and wisdom in supporting their decision. Mr. Chandler stated that his
41 07/18/2005
family and neighbors have worked for almost two years to clean, replant and
rebuild after the "Old Fire," and requested that they not be made to suffer from
another disaster from which there would be no recovery.
Don White, resident of Del Rosa Estates for 40 years, thanked the Planning
Commission for their decision and hoped the City Council felt the same way.
Deputy City Attorney Empeno noted that attached to the staff report in the backup
marked Exhibit 5 was a memorandum to the Planning Commission dated April 13,
2005, reciting the seven findings that the City Council had to make, and he advised
that the Council had to make all seven findings if they wanted to approve this
Tentative Parcel Map. He stated that in the above memo, Planning staff found two
findings, Nos. 2 and 4, which, the Planning Commission agreed on a 6 to 0 vote,
could not be made by the Planning Commission. Mr. Empeno stated that contrary
to the advice given by the attorney representing the applicant/developer in this
matter, the City Council has the discretion to support the Planning Commission's
decision and deny this Tentative Tract Map. Finding No. 2 requires that the
Council find that this subdivision is consistent with the General Plan, and as stated
in Finding No. 2: "The project is not consistent with Objective 1.8, which requires
subdivisions to retain the scale and character of existing residential neighborhoods.
Existing parcels to the north (on the same block) and to the east average between
1/3- and 1h-acre each. Therefore, the 'proposal will not retain the scale and
character of the properties that are adjacent to the proposed subdivision." Mr.
Empeno stated that Finding No. 4 is similar in stating that "the site is not
physically suitable for two single-family lots because the proposed subdivision
would create two lots that would be approximately half the size of existing parcels
on the same block. Therefore, the proposed subdivision will not have a density
and physical design that would be compatible with adjacent properties on the same
block."
Mr. Empeno stated that staff was in agreement with the Planning Commission's
findings and recommended that the Council not make findings in support of this
subdivision.
Mr. Coppess responded by stating that the City has three zoning categories:
Estate, RL, and RS and that zoning ordinances are enacted to be consistent with the
General Plan. He stated that this area was not zoned for estates, it was not zoned
RL, it was zoned RS, and anyone coming to this area would expect RS designated
standards to be applied. Mr. Coppess stated that this project is many thousands of
square feet over the minimum square foot requirement for RS and it would even
meet the RL requirements if it were rezoned as a means to block some of the
concerns that have been raised. He stated that he has served on the Planning
Commission in his hometown for six years, has been a neighborhood association
president, has represented similar concerns as were expressed here today, but
never with regard to a proposed single-family home on a 12,000 square foot lot.
Mr. Coppess stated that granted this neighborhood has seen more than its fair share
42 07/18/2005
of tragedy, but when you boil this all down, this is a project that meets all zoning
requirements, lot area requirements, lot width requirements, depth and lot coverage
requirements, and will not require any exceptions or variances whatsoever. He
requested that the application be approved.
Council Member/Commissioner Derry stated that he was probably one of the most
pro -development members of the Council, but with all the issues that have arisen in
the last number of years and particularly after the "Old Fire," he felt it was
important to keep the character of a community intact especially after a disaster of
this type. He stated that he understood the concerns of the developer, but in this
case he believed this would change the character and nature of the community and
stated that he supported the Planning Commission's decision.
Council Member/Commissioner Kelley stated that he also understood the
developer's point of view, but he felt that changing the character of the
neighborhood was inappropriate at this time.
Council Member/Commissioner McCammack made a motion, seconded by Council
Member/Commissioner Johnson, that the hearing be closed; and that the Mayor
and Common Council deny the appeal and uphold the Planning Commission's
denial of Tentative Parcel Map No. 16880, based upon the April 13, 2005
memorandum to the Planning Commission.
The motion carried by the following vote: Ayes: Council Members/
Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson,
McCammack. Nays: None. Absent: None.
45. Public Comments
Christina M. Marquez, 1494 W. 9' Street, San Bernardino, CA, stated that she
had called the Police Department to report the use of illegal fireworks at 1488 W.
9' Street on July 3, and again on July 4 after a police officer had driven by, talked
to the individuals, confiscated the fireworks, and then left without writing a
citation. She stated that after the officer left, and from sundown to midnight, these
same individuals ignited illegal fireworks. Ms. Marquez stated that as she sat in
her front yard she noticed several large fireworks displays in the 1300 block of W.
8' Street, the 1500 block of W. Union Street, and the 1400 block of W. Temple.
She stated that a vacant, overgrown lot behind the residence at 1488 W. 9' Street
had ignited and the Fire Department had to be dispatched. She wondered where
the additional officers were that should have been there writing citations. Ms.
Marquez stated that she was disappointed that they weren't there to help her secure
her home and keep her neighborhood safe.
43 07/18/2005
46. Adjournment
At 8:50 p.m., the meeting adjourned. The next joint regular meeting of the Mayor
and Common Council/Community Development Commission is scheduled for 1:30
p.m., Monday, August 1, 2005, in the Council Chambers of City Hall, 300 North
"D" Street, San Bernardino, California.
No. of Items: 46
No. of Hours: 7
RACHEL G. CLARK
City Clerk
Bl J�wai ,i.� �
Linda Sutherland
Deputy City Clerk
44 07/18/2005