HomeMy WebLinkAbout06-Council Mintues
CITY OF SAN BERNARDINO
3(}() N. "D" Street
San Bernardino, CA 92418
Website: www.sbcity.org
Mayor Patrick J. Morris
Council Members:
Esther Estroda
Dennis J. BOXIer
Tobin Brinker
'I' Ward - Vacant
Chas Kelley
Rikke Van Johnson
Wendy McCammiu:k
MINUTES
MAYOR AND COMMON COUNCIL AND
COMMUNITY DEVELOPMENT COMMISSION
OF THE CITY OF SAN BERNARDINO
JOINT REGULAR MEETING
FEBRUARY 2, 2009
COUNCIL CHAMBERS
The joint regular meeting of the Mayor and Conunon Council and Community
Development Commission of the City of San Bernardino was called to order by
Mayor/Chairman Morris at 1:34 p.m., Monday, February 2, 2009, in the Council
Chambers of City Hall, 300 North "0" Street, San Bernardino, California.
Roll Call
Present:
Mayor/Chairman Morris; Council Members/Commissioners Estrada,
Baxter, Brinker, Kelley, Johnson, McCarnmack; City Attorney Penman,
Interim City Manager Weinberg, City Clerk Clark.
Absent:
None.
Vacant:
Fourth Ward.
I. Closed Session
Pursuant to Government Code Section(s):
A. Conference with legal counsel - existing litigation - pursuant to
Government Code Section 54956.9(a):
In the Matter of the Industrial Disability Retirement Application of
Garrett Zimrnon and the City of San Bernardino - OAH Case No.
2007080890 ;
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02/02/2009
Koster v. San Bernardino City Fire Department, et al. - San Bernardino
County Superior Court, Case No. SCVSS 811048;
Alvarez, Jaime, et aI. - USDCCV - 00-03048 PA (Rcx);
Rodriguez v. Patton, et al. - San Bernardino County Superior Court,
Case No. CIVSS 808201.
B. Conference with legal counsel - anticipated litigation - significant
exposure to litigation - pursuant to subdivision (b) (I), (2), (3) (A-F) of
Government Code Section 54956.9:
Inland Communities Corp. v. City of San Bernardino (Paradise Hills)
California Aviation Services, Inc. v. City of San Bernardino
Helper, Linda & Guerra, Jerry
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. California State University
D. Closed Session - persounel - pursuant to Government Code Section
54957:
Chief of Police
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:
Fire Safety Unit
Police Safety Unit
Police Management Unit
Management/Confidential
Mid-Management Unit
General Unit
G. Conference with real property negotiator - pursuant to Government Code
Section 54956.8:
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02/02/2009
1.
Property Address:
450 North "E" Street
APN: 0134-121-24
N ejl;otiatinjl; Parties:
Emil A. Marzullo, Interim
Executive Director, on behalf of the
Redevelopment Agency and the
City. and Moctesuma Esparza, CEO
and Founder, on behalf of Maya
Cinemas.
Under Nejl;otiation:
Purchase price, loan terms and
conditions.
City Attorney Penman announced that the following additional case would be
discussed in closed session under Agenda Item lA, existing litigation:
Royce Jobe v. City of San Bernardino, et al. - San Bernardino County
Superior Court, Case No. CIVSS 816375.
Closed Session Announcement
City Clerk Clark announced that during closed session in the matter of Garrett Zimmon
a motion was made, seconded, and approved that the Council agreed with the
Administrative Law Judge's findings that Mr. Zimmon does not qualifY for disability
retirement.
Reading of Resolutions & Ordinances
Deputy City Clerk Hartzel read into the record the titles of all the resolutions and
ordinances on the regular agenda of the Mayor and Common Council and Community
Development Commission.
Moment of Silence
Mayor Morris extended condolences to the family and requested a moment of silence in
memory of Reverend Don InIoes.
Invocation/Pledge of Allegiance
The invocation was given by Reverend Bronica Martindale of The Master's Plan
Church of the Nazarene. The pledge of allegiance was led by Alvina Castaneda, a 6th
grade student at Bradley Elementary School.
2. Appointments
There were no Commission appointments.
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02/02/2009
3. Proclamations & Presentations
Michael Page, Director of Government and External Affairs for Verizon,
presented Verizon Foundation grants to the following nonprofit organizations:
San Bernardino City Unified School District
San Bernardino Sexual Assault Services
San Bernardino Community Hospital
Option House
Asian American Educational & Cultural Resource Center
Libreria Del Pueblo, Inc.
Applied Principals for Service, Inc.
$50,000
$45,000
$35,000
$24,000
$20,000
$20,000
$18,000
4. 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.
5. Waive Fun Reading of Resolutions & Ordinances
Council Member/Commissioner Johnson made a motion, seconded by Council
Member/Commissioner Baxter, that full reading of the resolutions and
ordinances on the regular agenda of the Mayor and Common Council and
Community Development Commission, be waived. The motion carried
unanimously with the Fourth Ward vacant.
6. Council Minutes
Council Member/Commissioner Johnson made a motion, seconded by Council
Member/Commissioner Baxter, that the minutes of the following meeting(s) of
the Mayor and Common Council/Community Development Commission of the
City of San Bernardino be approved as submitted in typewritten form:
December 15, 2008, and January 5, 2009. The motion carried unAnimously
with the Fourth Ward vacant.
7. Claims & Payroll
Council Member/Commissioner Johnson made a motion, seconded by Council
Member/Commissioner Baxter, that the claims and payroll and the authorization
to issue warrants as listed in the memorandum dated January 22, 2009, from
Barbara Pachon, Director of Finance, be approved. The motion carried
unanimously with the Fourth Ward vacant.
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02/02/2009
8. Personnel Actions
Council Members/Commissioners Johnson and McCamrnack stated that it might
not be prudent to approve the personnel actions (one appointment and six
promotions) at this time of budget crisis.
City Manager Weinberg explained that the reason several of these items were
included on the agenda is that the requested actions were in connection with the
sewer fund, which is a special fund with characteristics of an enterprise fund
and is not as problematic as the general fund. He stated that the paramedic-
fIrefIghter position is important in terms of its certifIcation; and the two code
enforcement positions are not so much promotions in the classic sense, but
rather an acknowledgment of a certain certifIcation level that we have in our
MODs that says that when you have completed a certain amount of training this
elevation automatically takes place.
Fire Chief Conrad explained that one of the FirefIghter EMTs had achieved
paramedic training and qualifIcations; and they do have vacancies in the
paramedic ranks, which is one of the department's most difficult positions to
staff. In addition, some of the potential reductions that may be coming may
require him to look at the Firefighter I category, and this allows him to move
one of the firefIghters into the medic ranks of FirefIghter II.
City Attorney Penman stated that he hoped that at least action Nos. I, 6, and 7
(appointment of sewer maintenance personnel) would not be delayed; and he
would concur with the Fire Chief regarding No.2, the promotion from
FirefIghter to FirefIghter Paramedic.
Council Member/Commissioner Kelley made a motion, seconded by Council
Member/Commissioner Baxter, that the personnel actions, as submitted by the
Chief Examiner, dated January 22, 2009, 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.
Council Member/Commissioner McCamrnack stated that she agreed with
approving action Nos. 1, 2, 6, and 7; however, she thought 3, 4, and 5 should
be held over until after the budget discussions.
Council Member/Commissioner McCamrnack made a substitute motion,
seconded by Council Member/Commissioner Johnson, that Personnel Action
Nos. 1, 2, 6, and 7 be approved; and that Nos. 3, 4, and 5 be continued to the
Council/Commission meeting of February 17, 2009.
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02102/2009
Mr. Weinberg pointed out that there are not going to be any additional cuts in
terms of public safety dispatching (action No.3), and there is a distinction
between the enforcement capabilities of the Code Enforcement Officer II versus
the Code Enforcement Officer I.
Interim Director of Code Enforcement, Wayne Harp, advised that the reason for
these promotions is because when the individuals were hired they didn't have
any PC 832 certification, so they must remain a Code Enforcement Officer I
until they obtain this certification. He supported the action for three reasons-I)
the individuals have been told this is what will take place, 2) there is an MOU
requirement for the action, and 3) to do the full range of code enforcement
actions they need to be Code Enforcement Officer lIs.
The substitute motion that Personnel Action Nos. 1, 2, 6, and 7 be
approved; and that Nos. 3, 4, and 5 be continued to the
Council/Commission meeting of February 17, 2009, carried unanimously
with the Fourth Ward vacant.
9. ORD. MC-1292 - An Ordinance of the City of San Bernardino amending
Chapter 15.24 of the San Bernardino Municipal Code relating to property
maintenance requirements. FINAL READING (Continued from January 20,
2(09)
Council Member/Commissioner Johnson made a motion, seconded by Council
Member/Commissioner Baxter, that said ordinance be adopted. Ordinance No.
MC-1292 was adopted unanimously with the Fourth Ward vacant.
10. Authorize the Director of Development Services to execute Contract Change
Order Number One with Nikola Construction Corporation for sewer
improvements in Industrial Parkway, Tippecanoe Avenue, and "I" Street
and Pavement Rehabilitation on Sterling Avenue (SW05-05, SW05-06,
SW04-36, & SS06-56), per Project Plan No. 11923A
Council Member/Commissioner Johnson made a motion, seconded by Council
Member/Commissioner Baxter, that the Director of Development Services be
authorized to execute Contract Change Order Number One with Nikola
Construction Corporation for sewer improvements in Industrial Parkway,
Tippecanoe Avenue, and "I" Street and Pavement Rehabilitation on Sterling
Avenue (SW05-05, SW05-06, SWQ4-36 & SS06-56), per Project Plan No.
11923A. The motion carried unanimously with the Fourth Ward vacant.
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02/02/2009
11. RES. 2009-18 - Resolution of the City of San Bernardino establishing a fair
market value and sales price of $527,323 and declaring the intention of the
City to sell City of San Bernardino Municipal Water Department owned
property generally located south of 9th Street and west of "H" Street to the
State of California Department of Transportation relative to the widening of
the 1-215 freeway and setting a public hearing for March 2, 2009 at 4:00
p.m., to consider said sale.
Council Member/Commissioner Johnson made a motion, seconded by Council
Member/Commissioner Baxter, that the Director of Development Services be
authorized to proceed with the sale of a portion of City of San Bernardino
Municipal Water Department owned real property to Caltrans generally located
south of 9th Street and west of "H" Street (APN 0140-191-41); and that said
resolution be adopted. The motion carried and Resolution No. 2009-18 was
adopted unanimously with the Fourth Ward vacant.
12. Item deleted
13. RES. 2009-19 - Resolution of the City of San Bernardino amending
Resolution 2008-149 establishing a fee for Fire Department removal of
hazardous materials spills resulting from traffic collisions.
Council Member/Commissioner Johnson made a motion, seconded by Council
Member/Commissioner Baxter, that said resolution be adopted; and that the
Director of Finance be authorized to amend the FY 2008/2009 adopted budget
and decrease General Fund revenue associated to Haz Mat cleanup included in
Account No. 001-000-4709 by $195,900 (rounded) from $477,500 to a new
total of $281,600; that a new revenue account for this fee with a budget of
$79,200 be established; and that the expenditures in the amount of $47,500
(rounded) associated with this program be incorporated into the FY 2008/2009
Fire Department Budget by appropriating $47,500 from the General Fund
Budget Reserve. The motion carried and Resolution No. 2009-19 was
adopted unanimonsly with the Fourth Ward vacant.
14. RES. 2009-20 - Resolution of the Mayor and Common Council of the City
of San Bernardino authorizing the Interim City Manager to execute
Amendment No. I to the vendor service agreement with Golden West
Landscape Contractor, and the Director of Finance to increase the following
contracts by the stated amounts: Contract Nos. 09-054 (Area "D") _
$12,176; 09-047 (Area "F") - $11,708; 09-048 (Area "G") - $78,114; 09-049
(Area "H") - $92,558; and, 09-053 (Area "I") - $5,703 issued to Golden
West Landscape Contractor for landscape maintenance services in
Landscape Maintenance Districts Areas "D", "F", "G", "H" and "I" for
the term February 2, 2009 through January 31, 2010.
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02/02/2009
Council Member/Commissioner Johnson stated that he would abstain because he
had been unable to determine whether he had a conflict with any of the
contracts. He left the dais and returned after the vote was taken.
Council Member/Commissioner McCammack expressed concern that there
appeared to be no escape clause for a breach of contract.
City Attorney Penman noted that this was an amendment to an existing contract,
and he knew it was checked before the amendment was approved; therefore, it
was his belief that it did contain an escape clause.
Jan Wages, Sr. Administrative Analyst in the Parks, Recreation and Community
Services Department, verified that there was a 3D-day termination clause in the
original contract.
Joe Ortiz, 387 West 251h Street, San Bernardino, CA, expressed concern
regarding exposed wiring on two light poles at Campo Santo Memorial Park and
some landscaping abutting the Holy Rosary Academy campus which needs to be
trimmed.
Council Member/Commissioner McCammack made a motion, seconded by
Council Member/Commissioner Baxter, that said resolution be adopted.
Resolution No. 2009-20 was adopted. Ayes: Estrada, Baxter, Brinker,
Kelley, McCammack. Nays: None. Abstentions: Johnson. Absent:
None. Vacant: Fourth Ward.
15. RES. 2009-21 - Resolution of the Mayor and Common Council of the City
of San Bernardino approving the template Letter of Agreement in concept,
and authorizing the Interim City Manager to execute a KaBOOM!
Outreach statement on behalf of the City of San Bernardino as required for
consideration for a community-build playground proposed for construction
at the Rudy C. Hernandez Community Center located at Meadowbrook
Park.
Council Member/Commissioner Kelley stated that he supports the KaBOOM!
projects and implored the Parks Department to consider AI Guhin Park for such
a project.
Council Member/Commissioner Johnson stated that it was his understanding that
staff had created a list for future projects so that Council members can see
where their parks stand on the list.
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02/02/2009
Kevin Hawkins, Director of Parks, Recreation and Community Services,.
advised that they have had to rely on the Parks Master Plan for construction of
the KaBOOM! builds, and parks with community centers are the priority at this
time.
Council Member/Commissioner Kelley made a motion, seconded by Council
Member/Commissioner Brinker, that said resolution be adopted. Resolution
No. 2009-21 was adopted unanimously with the Fourth Ward vacant.
16. Item deleted
17. RES. 2009-22 - Resolution of the Mayor and Common Council of the City
of San Bernardino authorizing execution of an agreement with the San
Bernardino Black Culture Foundation for fmancial assistance from the
Civic and Promotion Fund for FY 2008-09.
Council Member/Commissioner McCammack noted that the Council members
receive a lot of calls and e-mails advising them to use restraint when approving
waivers of fees. She explained that these monies are specifically related to fees
that developers pay into a Civic and Promotion Fund, which is restricted for this
type of thing-the money is not coming from the General Fund.
Council Member/Commissioner Kelley made a motion, seconded by Council
Member/Commissioner Brinker, that said resolution be adopted; and that the
Mayor and Common Council authorize direct funding in the amount of $4,500
and indirect funding in the amount of $21,331 be transferred from the 2008-09
Civic and Promotion Fund to various City departmental accounts as listed in the
attached staff report dated January 12, 2009 from Interim City Manager, Mark
Weinberg; and authorize a waiver of fees and use of City persounel and
equipment to assist with the 2009 Black History Parade scheduled for February
7, 2009. The motion carried and Resolution No. 2009-22 was adopted
unanimously with the Fourth Ward vacant.
18. Budget Workshop (EDA Board Room)
The following materials were distributed:
· Interoffice memorandum dated February 2, 2009, from Mark Weinberg,
Interim City Manager, to the Mayor and Common Council regarding
Recommended Budget Strategy
· The Budget Challenge: City of San Bernardino (hard copy of a
PowerPoint presentation made at the beginning of the meeting)
· DRAFT City of San Bernardino Projected General Fund Balance Fiscal
Years 2008-2009 and 2009-2010 - Attachment A (blue paper)
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02/02/2009
· City Manager's Recommended Budget Strategy - Attachment B (gray
paper)
· Alternative Budget Strategy - No 10% work week reduction -
Attachment C (salmon paper)
· Work Week Reduction Operational Plan - Appendix 1 (green paper)
· Staffmg in Administrative Departments - Appendix 2 (yellow paper)
· Revenue Enhancement Ideas Draft - 2/2/2009 - Appendix 3 (pink paper)
· General Fund Budget Reductions - Draft City Manager's Office
2/2/2009 (white paper)
· Appendix 4 - Department Budget Reduction Narrative and Scenarios
(buff paper)
· Inter Office Memorandum dated January 22, 2009, from Stephanie D.
Easland, Assistant City Attorney, to Mark Weinberg, City Manager,
regarding Proposal to Close City Hall on Fridays
· Inter Office Memorandum dated February 2, 2009, from John F.
Wilson, Senior Assistant City Attorney, to Mayor and Common Council,
regarding Impracticability of Closing City Attorney's Office on Fridays
Interim City Manager Weinberg explained that staff was looking for a consensus
from the Council-not actual actions.
Barbara Pachon, Director of Finance, reviewed some of the handouts. She
noted that there is about a $9 million shortfall for this fiscal year over what was
budgeted, due in large part to loss of revenues-especially sales tax. Using
staffs revised estimate for 08/09 and projecting that out to 09/10, again they are
seeing additional reductions in revenues that equate to a shortfall for 09/10 of
about $20 million. If you add to that the $9 million projected for this year, the
City is looking at a total shortfall of almost $29 million.
Mr. Weinberg reviewed the City Manager's Recommended Budget Strategy _
Attachment B, and stressed the need to act quickly and decisively in terms of
what needs to be done.
At the end of the PowerPoint presentation regarding The Budget Challenge there
was a List of Requested Actions, as follows:
· Authorize City Manager to proceed with changing work schedules as
needed to begin Friday closure of City Hall as soon as possible
· Authorize City Manager and Department Director to proceed with layoff
and/or bumping notices
· Prepare for final action by the Mayor and Council by the February 17
Council meeting
10
02/02/2009
Council Member/Commissioner Kelley made a motion to accept/authorize the
actions requested by Mr. Weinberg. (The motion was restated and seconded at
the end of the meeting-see page 14.)
Council Member/Commissioner Estrada expressed concern that the changes in
services will most seriously impact the large number of people that live in this
community that are low income individuals. She stated that she was not sure
that the Council had information that showed that staff took into account the
impact, for example, of the elimination of police officers-what impact that will
have on the crime rate; or the potential for more liability if we cut firefighter
positions.
She stated that she had recently learned of a company that has acquired a
number of parcels throughout the city and would and could be very interested
in, as an example, buying the Galaxy.
Mayor/Chairman Morris advised that the problem with the Galaxy center is that
it was given to the City by the u.S. Air Force as a recreation venue with
restrictions in how the City could utilize the funds that would be obtained from
its sale. He stated that if the City was to sell it, it was his understanding that we
are constrained to use those resources to acquire additional Parks and Recreation
facilities of like kind, so it is specifically designated in perpetuity for Parks and
Recreation functions.
Ms. Estrada suggested that since the current state of affairs is not a local
problem, but an international problem that we are facing, the government might
be willing to relax some of those restrictions. She asked the Mayor what assets
the City currently has.
Barbara Pachon, Director of Finance, stated that staff is putting together a list of
the City's assets; however, a lot of the buildings have already been used as
collateral. She stated that they are working with Real Property and cross
checking and making sure that they have the most up-to-date value of the
property .
Interim City Manager Weinberg stated that he appreciated Councilwoman
Estrada's comments, stating that they could take a more prudent look at
disposing of property in terms of it being a mid- to longer-term part of the
solution. He stated that even if we get through this immediate crisis to restore
the City's fiscal health, we really should be working towards a general fund
reserve of about $15-20 million; and that would be one way to do that.
Ms. Estrada concurred that anytime you can build up the reserve to $15-20
million it is very advisable. However, right now they are looking to deplete it
almost to nothing, and she is saying that she wants to go in the opposite
11
02/0212009
direction. She doesn't want to wait three to six months for answers if the
question she is asking could be answered tomorrow.
Mr. Weinberg agreed that they want to look into this, and if it looks like it's a
transaction that they could complete promptly, then of course they would. He
just thought that in terms of a broader strategy of selling off City assets, that it
is likely to be something that is going to take a little bit of time.
Mayor/Chairman Morris stated that he thought the City was constrained by the
Transfer Act of federal closed bases to municipalities and other nonprofits. He
stated that changing that in Washington is a worthy quest and he would
immediately pursue it with both Congressman Lewis and Congressman Baca.
Council Member/Commissioner McCammack stated that one of the first things
she researched coming in here was revenue. She stated that the Council was
being asked to make a decision on those items on the gray sheets, but those
actions all hinged on the revenue projections. If the revenue projections are
short by $3 million, then they are making $3 million worth of decisions that are
a) affecting service-critical service delivery, b) affecting lives with layoffs, and
c) they are really not being as prudent as they could be in raising revenues first.
She stated that you don't cut first; you raise revenue first.
She stated that they are not going after the revenue they should be going after,
and should have been going after a long time ago. She stated that she would
make sure that whatever proposal comes to this table, that the Council as a
body, has at least discussed all of those ideas. Ms. McCammack stated that in
her opinion we are underestimating what we are going to receive in revenue in
08/09 by $2.9 million for the year. According to Ms. McCammack, sales tax
alone is underestimated by $2.1 million.
She stated that the City needs to market its excess property. She also questioned
why staff doesn't get more aggressive on collections from the people who owe
the City money.
She noted that last year the Fire Department suggested that they ask insurance
companies to foot the bill for Fire personnel writing the reports for accidents, or
for the cleanup performed by the PD and Fire. She stated that they are still
talking about the same revenue enhancements they talked about a year ago, but
they have done nothing about them, and they are asking the employees to suffer
the consequences of their inaction.
Relative to the selling of obsolete real estate, Mr. Baxter asked whether staff
had done any in-depth research, or whether they had just given it a cursory look
right now.
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02/02/2009
Mr. Weinberg answered that they were just starting to look at that beyond a
cursory review. They have looked at it on a cursory basis, and they are finding
some properties that are restricted in terms of what they can do with them.
However, they are looking at that and they do think it is an important part of the
equation.
City Attorney Penman stated that in his department if they go to a 4-day work
week, the attorneys lose their exempt status, which means you have to pay them
time and one-half overtime for the hours that they work. He pointed out that
there is a minimum amount of work that has to be done for every case and for
all legal advice that is given in order to maintain professional standards.
Despite having that information, they are being told that they still have to cut
back in the City Attorney's office to four days. He stated that that was so
ridiculous because the overtime they will pay starting the very fIrst pay period
will wipe our the entire savings of going to four days per week and it will
increase the defIcit amount even more. The only people who will benefIt will be
the attorneys who will have a windfall of a huge additional salary.
Mr. Weinberg stated he would take issue with Mr. Penman's comments based
on the fact that he has experience to show that such a plan has worked well in
the past and was done under the advice of two separate attorneys.
Jack Banuelos, 6106 Layton Street, Alta Loma, CA, stated that he works in
traffic signal, and it appears that the budget cuts will affect two of those in their
shop. He explained the scope of their work including maintenance on 270
intersections every three months. Also, since street lights was privatized, they
are pitching in to do some of the things street lighting used to do'-things the
contractor should be doing and is being paid to do, but are actually being done
by traffic signal.
C. Patience Summers, 868 E. Rialto Avenue, San Bernardino, CA, told City
Manager Weinberg that he had promised not a single front-line cop would be cut
and that appeared to be a lie. She stated that sales tax began to fall with the
initiation of Operation Phoenix, but in her opinion, more boots on the street
prevent crime rather than programs like Operation Phoenix.
Evelyn Alexander, 1480 E. Verde Drive, San Bernardino, CA, stated that she
had retired from the library after 44 years and urged the elected officials to
figure out a way to keep the main library open at least five days a week.
Warner Hodgdon, 405 E. Arrowhead Road, San Bernardino, CA, stated that
he supports everyone here tonight and is encouraged to hear such a spirited
discussion. He stated that the problem is that the debt is cumulative and cited
examples such as the City Hall, the ballpark, etc.
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02/02/2009
Council Member/Commissioner Kelley made a motion, seconded by Council
Member/Commissioner Brinker, that the City Manager be authorized to proceed
with changing work schedules as needed to implement the reduced workweek
and commensurate Friday closure of City Hall effectivelbeginning on Friday,
March 6, 2009; that Human Resources initiate the meet and confer process with
labor groups regarding the impacts of this management decision, with a staff
report to corne to the Mayor and Council on February 17 to take the final action
necessary to implement this change; and that the City Manager and Department
Directors be authorized to proceed with issuing layoff and bumping notices.
The motion carried. Ayes: Estrada, Baxter, Brinker, Kelley, Johnson.
Nays: McCammack. Absent: None. Vacant: Fourth Ward.
COMMUNITY DEVELOPMENT COMMISSION
Present:
Mayor/Chairman Morris; Council Members/Commissioners Estrada,
Baxter, Brinker, Kelley, Johnson, McCamrnack; Assistant City Attorney
Wilson, Economic Development Agency Interim Executive Director
Marzullo and Agency Counsel Sabo, City Clerk Clark.
Absent:
None.
Vacant:
Fourth Ward
R19. Recommend transfer of personnel and certain assets of the City to the
Agency related to the CATV Division (Continued from January 20,2009)
RES. 2009-23 - Resolution of the Mayor and Common Council of the City
of San Bernardino approving the transfer of personnel and certain assets of
the City related to the CATV Division and the restructuring thereof within
the Redevelopment Agency of the City of San Bernardino and approving
and authorizing execution of an Asset and Personnel Transfer Agreement.
(R19A)
RES. CDC/2009-5 - Resolution of the Community Development Commi"Sion
of the City of San Bernardino concurring with Mayor and Common Council
resolution approving the transfer of personnel and certain assets of the City
related to the CATV Division and the restructuring thereof within the
Redevelopment Agency of the City of San Bernardino and approving and
authorizing execution of an asset and personnel transfer agreement. (R19B)
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02/02/2009
Council Member/Commissioner Kelley made a motion, seconded by Council
Member/Commissioner Brinker, that said resolutions be adopted. Mayor and
Common Council Resolution No. 2009-23 and Community Development
Commission Resolution No. CDC/2009-5 were adopted unanimously with
the Fourth Ward vacant.
R20. Watson-Westridge, LLC - Amendment No.1 to the 2005 Disposition and
Development Agreement (144.52-Acre residential development located north
of Foothill Drive and east of Sterling Avenue) (Continued from January 20,
2009)
RES. CDC/2009-6 - Resolution of the Community Development Commission
of the City of San Bernardino approving and authorizing the Interim
Executive Director of the Redevelopment Agency of the City of San
Bernardino ("Agency") to execute Amendment No. I to the 2005
Disposition and Development Agreement by and between the Agency and
Watson-Westridge, LLC, ("Developer") (144.52-acre residential
development located north of Foothill Drive and East of Sterling Avenue).
Council Member/Commissioner Baxter made a motion, seconded by Council
Member/Commissioner Kelley, that said resolution be adopted. Resolution No.
CDC/2009-6 was adopted unanimously with the Fourth Ward vacant.
R2I. Formation of a Property and Business Improvement District ("PBID") for
the San Bernardino Auto Center (Southeast Industrial Park and IVDA
Redevelopment Project Areas)
RES. 2009-24 - Resolution of Intent of the Mayor and Common Council of
the City of San Bernardino providing for the formation of a Property and
Business Improvement District within a certain area of the City of San
Bernardino and taking other actions in connection therewith (Auto Center
PBID) (Southeast Industrial Park and IVDA Redevelopment Project Areas).
Emil Marzullo, Interim Executive Director of the Economic Development
Agency, explained that just a few years ago the City of San Bernardino had in
its auto mall 12 different car makes being represented by 10 different
dealerships. Today they are down to 3 dealerships with only 5 different makes
being offered, and the dealerships are being weakened simply from the lack of
financing, lack of sales, or cost overruns. He stated that the Agency was alerted
to this fact by the Dealership Association at the Auto Mall just a few months
ago, at which time staff began looking at what other cities were doing to assist
their dealerships in the same situation.
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02/02/2009
He advised that the Agency was concerned that if they lose sales tax by
dealerships closing, the City's general fund goes down. Also, if a dealership
closes, then that property becomes devalued and the actual. property tax goes
down, which affects not only the general fund but affects the tax increment
within the redevelopment areas. Hence, the Agency talked to the dealers and
offered a suggestion in terms of a way to assist, but still have the City's interest
protected to the highest degree; and a Property and Business Improvement
District (PBID) is that recommendation that they have before the Council today.
Mr. Marzullo stated that a PBID is an assessment district by those properties
that participate in the program. They are petitioning the Commission to form
this district through this resolution of intention and asking that an election be
conducted-it wOnld come before the Commission in a separate action in future
weeks. What the Dealership Association has requested is an advance from the
Economic Development Agency in the amount of $1,218,372. Staff worked
with them through a business plan, and this is the amount of money that would
assist these car dealerships for a period of 6-9 months to a year to try and do
things that are in fact allowable under the PBID law-landscaping, lighting,
clean and safe kinds of programs, marketing-primarily the budget would be
used in marketing to try and get the word out that they are still here and in
business.
He explained that this amount actually would be a loan from the Agency to the
PBID-not to the dealers directly-but to the PBID if it is formed, payable back
over five years at zero interest. He stated that in the case of an assessment, the
assessment is placed in high priority with property taxes, so they are first in line
for recovery of debt in the case of a default. The action before the Commission
is a petition by these dealers to ask the City and the Agency to form a Property
and Business Improvement District and call an election wherein election staff
will be bringing to the Commission action to loan the PBm 1.218 million
dollars, to be paid back over a period of five years at zero percent interest. He
stated that their leverage was pretty good in this case-I. 2 million dollars to
save three dealerships and probably a multiple of many times that in sales tax
over the coming years is probably a very good leverage.
Council Member/Commissioner Brinker made a motion, seconded by Council
Member/Commissioner Baxter, that said resolution be adopted. (The vote was
taken following discussion.)t
Greg Engel, Windermere Commercial Real Estate, stated that he was recently
contacted to put up for sale or lease Jack Kennedy Cadillac, which has closed its
doors. He noted that Jack Kennedy Cadillac had been in this city for
approximately 35 years and had been paying roughly on an average of $150,000
a month in sales tax to the City.
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02/02/2009
He stated that he went to the City last week and tried to figure out what they
were going to do with this lot, and he was informed by the City that Jack
Kennedy Cadillac was not part of the Auto Zone. Mr. Engel asserted that
nobody had informed Mr. Kennedy that the Economic Development Agency
was considering doing anything to help the dealerships because he was not part
of the Association, even though he brought in large dollar amounts to the City.
Mayor/Chairman Morris stated it was important how the City treats those who
serve the city well over the years as illustrious businesses; and he thought Mr.
Engel would fmd the City ready to work with him in every way it legally could
to assist in making that mall and that site reusable and attractive.
Mr. Marzullo indicated that staff would be meeting the next day with other
dealers in town at 10 o'clock in the Agency's offices, and he would welcome
Mr. Engel and whoever else may want to come to talk about what happens for
the other dealers who are not in the Auto Mall.
Mr. Engel stated that Cadillac is gone and is not willing to come back to San
Bernardino. He stated that he was trying to figure out whether they were part of
the Auto Zone or not. If they are not part of the Auto Zone, then they would
like assistance to facilitate a change which would allow them to put in such
things as specialty cars or used cars on the property to generate money back to
the City. He has been told that they are not part of the Auto Zone, no one
approached them as part of the Auto Zone.
Mayor/Chairman Morris stated that this was a discussion that needed to be
continued, and Mr. Marzullo was hosting with the Mayor's office a meeting
tomorrow at 10 o'clock to discuss the possibilities of how they could come to
Mr. Engel's aid-whether there were strategies that they could articulate as a
City that would aid him in making use of that property as a new business.
Mr. Engel clarified that they were not asking for money; and Mayor/Chairman
Morris stated that he sensed they were looking for some type of a land use
change in that area.
Council Member/Commissioner McCarnmack stated that she was floored that
the City/Agency was willing to loan a whole bunch of money to Center
Chevrolet to keep them in business, but that they didn't do something to help
Kennedy. She stated that even if they didn't have the legal ability to offer them
anything within the PBID, they have lots of other legal abilities to help them
with lots of other pots of money and they didn't.
She stated she was heartsick, and all she wanted to say at this point is that the
Commission must do something if they are going to allow used boats to be sold
two doors down, and used wave runners, and allow them to park on unapproved
surfaces for years and years and years and not give them a ticket. If they are
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02/0212009
allowing that kind of use to go on, either one parcel or two parcels south of the
Kennedy Cadillac parcel, then they better be able to do something for the parcel
as it sits right now.
Council Member/Commissioner Brinker stated that many of the dealers reached
out to him going back to last year-the Chevy dealer being the first who really
came to him and said they were having some issues and went to our Economic
Development Agency and talked about ways that the City/Agency could work
with them. Ultimately, they couldn't find a way that they felt secured the City's
interest. In the meantime, other dealers continued to come forward, but he
never heard from the Cadillac dealer.
He stated that he received a message a week ago from Mr. Engel, asking to
meet, and he told his staff to set up the meeting. He stated that obviously, they
haven't met yet, but he hoped Mr. Engel left here today understanding they are
very interested in working with him. He noted that the other dealers had sought
out the City/Agency for help, and he was surprised that Kennedy Cadillac didn't
come talk to them a little sooner because he thought there was an interest in
making sure that their dealers do well, and they want to work with him to find
what's best for him and what's best for the City.
Council Member/Commissioner Baxter expressed regret over losing the only
Cadillac agency in the city, stating that he wished something had been done
before.
Discussion continued regarding what delineated the actual boundaries of the
PBID, the fact that each assessment was different based on the size of the
property and the amount of their marketing, and the fact that 90 percent of the
PBID would be used for security, landscaping, and marketing.
Council Member/Commissioner McCarnmack asked what pot of funds this
PBID was coming from. Mr. Marzullo answered that it would be taken from
the one-time reserves, loaned on a five-year basis, with the payback on an
annual basis.
Council Member/Commissioner Estrada inquired about how much money was
in the reserve.
According to Agency Counsel Sabo the money first carne up at least two fiscal
years prior and it was about $12.6 million; and he believed that there was about
$8 million now in what they considered to be the unallocated reserve funds.
Ms. Estrada asked Mr. Marzullo for a list of those projects that have been
funded out of that $12.6 million.
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02/02/2009
The motion made by Council Member/Commissioner Brinker, seconded by
Council Member/Commissioner Baxter, that said resolution be adopted carried.
Resolution No. 2009-24 was adopted unanimously with the Fourth Ward
vacant.
R22. Implementation of the Maya Cinemas North America, Inc., Disposition and
Development Agreement
Council Member/Commissioner Estrada made a motion, seconded by Council
Member/Commissioner Baxter, that the Mayor and Common Council of the
City of San Bernardino authorize the submittal of a HUD Section 108 Loan
Application to the U.S. Department of Housing and Urban Development. The
motion carried. Ayes: Estrada, Baxter, Brinker, Ketley, Johnson. Nays:
McCammack. Vacant: Fourth Ward.
PLANNING ITEMS
23. Public hearing - General Plan Amendment No. 07-01 & Conditional Use
Permit No. 07-34 - A request to change the General Plan land use
designation of a 17,516 square foot parcel from RS, Residential Suburban
to CG-l, Commercial General, with a request to construct a 3,600 square
foot multi-tenant retail building on the site located at the northeast coruer
of 30" and "E" Streets
RES. 2009-25 - Resolution of the City of San Bernardino adopting General
Plan Amendment No. 07-01 to the General Plan of the City of San
Bernardino to change the General Plan Land Use Designation from RS,
Residential Suburban, to CG-I Commercial General, and approving
Conditional Use Permit No. 07-34 to permit construction of a multi-tenant
retail building on a 17,516 square foot parcel located at the northeast comer
of 30" and "E" Streets.
Mayor/Chairman Morris opened the hearing.
Deputy Director/City Planner Terri Rahhal provided an overview of the staff
report.
Alex Irshaid, 670 Parkridge Avenue, Corona, CA, stated he was available to
answer any questions regarding the project.
No public comments were received.
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02/02/2009
Council Member/Commissioner Baxter made a motion, seconded by Council
Member/Commissioner Estrada, that the hearing be closed and that said
resolution be adopted. Resolution No. 2009-25 was adopted. Ayes: Estrada,
Baxter, Brinker, Johnson, McCammack. Nays: None. Abstentions:
Ketley. Vacant: Fourth Ward.
24. Appeal hearing - Conditional Use Permit No. 07-25 (Appeal No. 08-06) _
Appeal of the Planning Commi""ion's denial of a Conditional Use Permit to
construct a 1,893 square foot drive-thru restaurant and 3,440 square foot
retail building on a 29,537 square foot parcel located at the southeast comer
of Waterman Avenue and 29th Street in the CG-l, Commercial General land
use district
Mayor/Chairman Morris opened the hearing.
Pursuant to Resolution No. 2000-279, City Clerk Clark administered an oath to
the following individuals that they would provide true and honest testimony:
Margaret Cisneros, 7512 Sterling Avenue, Highland, CA, expressed
opposition to the project, stating that she owns four adjacent houses directly
across the street from the proposed project and it's not an appropriate place for
this establishment. She also mentioned concerns regarding traffic, the potential
for accidents, and the number of children in the area who attend Wilson School.
Sandy Parada, 333 East 29th Street, San Bernardino, CA, expressed opposition,
stating that traffic in the area is already terrible and this would just add to that
problem.
Council Member/Commissioner Baxter made a motion, seconded by Council
Member/Commissioner Brinker, that the matter be continued to the
Council/Commission meeting of February 17, 2009. The motion carried.
Ayes: Baxter, Brinker, Ketley, Johnson, McCammack. Nays: None.
Absent: Estrada. Vacant: Fourth Ward.
R25. RES. CDC/2009-7 - Resolution of the Community Development Commission
of the City of San Bernardino, California, approving an Agreement with
June Durr, Marketing and Public Relations Consultant, and authorizing
execution thereof, providing for professional marketing and public relations
consultant services.
Council Member/Commissioner Brinker made a motion, seconded by Council
Member/Commissioner Baxter, that said resolution be adopted. (Note: The
vote was taken following discussion.)
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02/02/2009
Council Member/Commissioner McCammack stated that she did some research
on the IRS website regarding independent contractors. Specific to employees, it
talks about before you can know how to treat payments that you make to
workers for services you must first know the business relatiouship that exists
between you and the person performing the services. The person performing
the services may be an independent contractor, a common law employee, a
statutory employee, or a statutory non-employee.
She stated that it talks about independent contractors, and whether people are
employees or independent contractors depends on the facts in each case. The
general rule is that an individual is an independent contractor if you, the person
for whom the services are performed, have the right to control or direct only the
result of the work and not the means and methods of accomplishing the results.
She stated that based on the staff report and based on everything that had been
given to the Council, she did not believe they were following the rules of this
particular publication. She stated that it also talked about sanctions if they don't
follow the IRS' rules. Unless there was a different staff report, it looked to her
like Ms. Durr was an employee-not an independent contractor.
Mayor/Chairman Morris advised that this issue was raised at the last Council
meeting and he had asked Mr. Marzullo and Mr. Sabo to look into it with
regard to a legal opinion on the subject.
Emil Marzullo, Interim Executive Director of the Economic Development
Agency, advised that they went to Gail Montgomery, who is the employment
partner of Lewis, Brisbois, Bisgaard, & Smith. He stated that the Agency's
contracts, like many, had been around and recycled for years, where sometimes
you get in a lull where you don't look at them critically. This caused them to
take a critical look at the contract and substantial amendments were made. He
stated that the staff report was the same; however, the contract before them for
approval was not. He added that he had a written legal opinion from Gail
Montgomery; and the contract before them does in fact meet the Internal
Revenue Service published guidelines.
Mr. Marzullo suggested that the motion be amended to state approval subject to .
legal approval by the City Attorney. He stated that he believed the
amendments, based upon the attorney's review, met the statutes and the
guidelines of the IRS.
Ms. McCammack then suggested that Mr. Marzullo change the staff report,
because the staff report specifically talks about Ms. Durr completing tasks that
she had been given while an employee. If she is following up on those same
tasks, according to this, she is following up on tasks she has already been
involved in.
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02/02/2009
Mr. Marzullo pointed out that Ms. Durr would be doing virtually the same tasks
as she did as an employee. However, her relationship in conducting those tasks
is different. She takes care of her own schedule-he doesn't set her schedule.
He gives her priorities and certain assignments-she decides if she needs to
come to the office, or if she performs them in another place. She carries her
own insurance, she has a City business license, and a number of other things
that distinguish her from being an employee of the City versus a contractor to
the City. He stated he was comfortable with it-that he understood and was
concerned that they make those differences, but he thought that the way they
have done this essentially establishes those differences.
Mayor/Chairman Morris noted that it had been suggested by the EDA director
that they have a motion approving this resolution, subject to the City Attorney's
approval of the contract.
City Attorney Penman stated that when they get employment contracts for
independent contractors, they look at the legal language of the document to
determine if the document itself is legally correct and within the IRS guidelines.
They do not do a background check to see whether the person is actually being
an independent contractor or not. Some of the things the IRS requires that they
look at are whether the person sets their own hours, whether they work under
direct supervision or not, whether they furnish their own office, their own
workplace and materials-those are the types of things they would look at. He
stated he was not aware of whatever the circumstances are in this particular
case, but no one had asked him to do this until right now, but if that is what
EDA would like they could certainly look at it and make their own evaluation.
Discussion ensued regarding whether Ms. Montgomery was a tax attorney,
whether Mr. Penman had a tax attorney on his staff, whether any minimum or
maximum hours had been established for Ms. Durr, etc.
The suggestion that language be included in the motion that the resolution be
approved subject to approval of the contract by City Attorney Penman was not
included in the motion.
The motion made by Council Member/Commissioner Brinker, seconded by
Council Member/Commissioner Baxter, carried. Resolution No. CDC/2009-7
was adopted. Ayes: Baxter, Brinker, Kelley, Johnson. Nays: Estrada,
McCammack. Absent: None. Vacant: Fourth Ward.
26. Report on fmal disposition of State Bar Complaint against City Attorney
James F. Penman rued by Arthur Margolis on behalf of Judith Valles Case
No. 05-17429/08-0-10457
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02/02/2009
City Attorney Penman submitted into the record and provided an overview of an
inter-office memorandum from him to the Mayor and Common Council dated
January 30, 2009. In addition to information regarding this agenda item, the
memorandum also included information regarding a request to utilize the
services of Attorney Erica Tabachnick to provide ethics advice to the City
Attorney's Office on an as-needed basis in an amount not to exceed $1,500
without further approval of the Mayor and Common Council; and the return of
$30,514.11 from the City Attorney's budget to the general fund.
Joe Ortiz, 387 West 25th Street, San Bernardino, CA, thanked Mr. Penman for
making the City proud, stating that old political hacks, who would damage the
City by making false allegations against the City Attorney, have been proven
wrong once again.
Council Member/Commissioner Baxter made a motion, seconded by Council
Member/Commissioner Estrada, that the Mayor and Common Council authorize
services of Erica Tabachnick, Attorney at Law, for City Attorney's Office ethics
issues in an amount not to exceed $1,500. The motion carried unanimously
with the Fourth Ward vacant.
27. Public Comments
Joe Ortiz, 387 West 25th Street, San Bernardino, CA, stated that the cost of the
City's graffiti removal program is double what the Los Padrinos program had
cost.
Richard Bernard, 1181 Montrose Avenue, San Bernardino, CA, stated that for
the last 14 months he has been unable to use his backyard because of a pit bull
in the yard behind his house. He made several allegations regarding how City
personnel have failed to help him resolve the problem, including City Attorney
Penman. Mr. Penman responded to the comments made by Mr. Bernard.
C. Patience Summers, 868 E. Rialto Avenue, San Bernardino, CA, spoke
regarding a young woman aTTested during an Operation Phoenix sweep, stating
that we should be giving people hope instead of trying to lock them up.
Margie Arnett, 1681 E. Echo Drive, San Bernardino, CA, expressed surprise,
in light of the tough economic times we are facing, that the Council would vote
to spend $80,000 for new trucks for the City's anti-graffiti team; urged residents
to buy locally; thanked those who volunteer locally; and provided a phone
number for anyone interested in mentoring a child (881-6760). She stated she
would like to hear from individuals regarding their efforts to volunteer and help
others-that they can contact her at www.joearnett.com. She also encouraged
Fourth Ward residents to cast their votes for her husband, Joe Arnett, who is
running for the Fourth Ward Council seat.
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02/02/2009
Joe Arnett, 1681 E. Echo Drive, San Bernardino, CA, stated that he is a
candidate for the Fourth Ward Council seat, that he will be a voice for the
people, that he supports public safety, and that he will provide independent
leadership for the Fourth Ward.
28. Adjournment
At 9:14 p.m. the meeting adjourned. The next joint regular meeting is
scheduled for 1:30p.m., Tuesday, February 17,2009.
RACHEL G. CLARK
City Clerk
By:
~<f>./d4-P
Linda E. Hartzel
Deputy City Clerk
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02/02/2009