HomeMy WebLinkAbout01-20-2009 Minutes
CITY OF SAN BERNARDINO
300 N. "D" Street
San Bernardino, CA 92418
Website: www.sbcity.org
Mayor Palrick J. Morris
Council Members:
Esther Estrada
Dennis J. Baxter
Tobin Brinker
4h Ward - Vacant
Chas Kelley
Rikke Van Johnson
Wendy McCamJ'IUlck
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MINUTES
MAYOR AND COMMON COUNCIL AND
COMMUNITY DEVELOPMENT COMMISSION
OF THE CITY OF SAN BERNARDINO
JOINT REGULAR MEETING
JANUARY 20, 2009
COUNCIL CHAMBERS
The joint regular meeting of the Mayor and Common Council and Community
Development Commission of the City of San Bernardino was called to order by
Mayor/Chairman Morris at 1:36 p.m., Tuesday, January 20, 2009, in the Council
Chambers of City Hall, 300 North "D" Street, San Bernardino, California.
Roll Call
Present:
Mayor/Chairman Morris; Council Members/Commissioners Estrada, Baxter,
Kelley, Johnson, McCarnmack; City Attorney Penman, Interim City Manager
Weinberg, City Clerk Clark.
Absent:
Council Member/Commissioner Brinker.
Vacant:
Fourth Ward
Council Member/Commissioner Brinker arrived at 3:26 p.m.
I. Closed Session
Pursuant to Government Code Section(s):
A. Conference with legal counsel - existing litigation - pursuant to
Government Code Section 54956.9(a):
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In the Matter of the Industrial Disability Retirement Application of Garrett
Zimrnon and the City of San Bernardino - OAH Case No. 2007080890;
San Bernardino Public Employees Association v. City of San Bernardino -
Case No. LA-CE-455-M;
Frank Ingram, III; et al. v. City of San Bernardino, Dave Green - USCA
No. 07-56616, USDC No. CV-05-00925 VAP/CFE;
City of San Bernardino Municipal Water Department v. The United States
Department of the Army - U.S. District Court Case Numbers: CV 96-
8867 & CV 96-5205;
State of California v. City of San Bernardino/George N. Voss, et al. - San
Bernardino County Superior Court Case No. CVISS 811831.
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:
Inland Communities Corp. v. City of San Bernardino (Paradise Hills)
California Aviation Services, Inc. City of San Bernardino
C. Conference with legal counsel - anticipated litigation - lmtJatJon of
litigation - pursuant to subdivision (c) of Government Code Section
54956.9:
City of San Bernardino v. California State University
City of San Bernardino v. American Home Mortgage, (4858 Cristy
Avenue, San Bernardino, CA (APN# 262-291-17-0000))
D. Closed Session - personnel - pursuant to Government Code Section
54957:
City Manager recruitment
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.
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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:
1. Property Address: 4858 North Cristy Avenue, San Bernardino
APN: 0262-291-17
Neg;otiating; Parties: Emil A. Marzullo, Interim Executive
Director, on behalf of the Redevelopment
Agency, and an authorized representative on
behalf of American Home Mortgage
Servicing, Inc.
Under Neg;otiation: Purchase price, terms and conditions.
City Attorney Penman announced that the following additional case would
be discussed in closed session:
Under Agenda Item No. 18, significant exposure to litigation:
Agenda Item No. 40.
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 and Community
Development Commission.
Moment of Silence
Mayor Morris extended condolences to the family and requested a moment of silence in
memory of retired City employee Janet Ward.
Invocation/Pledge of Allegiance
The invocation was given by Minister Robert W. Strong of Ecclesia Christian
Fellowship. The Pledge of Allegiance was led by Jennifer Chavarin, a student at
Ramona Alessandro School.
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2. Appointments
A. Lois Kipp - Animal Control Commission - Council Member McCammack
B. Councilman Rikke Van Johnson - Inland Valley Development Agency -
Mayor Morris
C. Councilman Tobin Brinker - Inland Valley Development Agency (Alternate)
- Mayor Morris
D. Councilman Rikke Van Johnson - San Bernardino International Airport
Authority (Alternate) - Mayor Morris
Council Member/Commissioner Kelley made a motion, seconded by Council
Member/Commissioner Baxter, that the appointments A-D, as requested by
Council Member McCarnmack and Mayor Morris, be approved. The motion
carried unanimously with the Fourth Ward vacant.
3. Presentations & Proclamations
Council Member/Commissioner McCarnmack publicly thanked and commended
Susan Benevy, not only for volunteering to serve on the Animal Control
Commission, but also for serving as chair of that commission for several years.
Council Member/Commissioner Johnson presented Certificates of Recognition to
the members of the California State University San Bernardino Women's
Volleyball Team who captured the CCAA Title, came in third in the NCAA West
Regional Championship, and was the 2008 NCAA National Runner-up. Head
Coach Kim Cherniss thanked the Mayor and Council for pointing out just how
much the community cares about the team's endeavors and how hard the girls
worked.
Rabbi Hillel Cohn, Chairman of the Bicentennial Ad Hoc Committee, presented
the committee's annual report to the Mayor and Council, and expressed
appreciation to Bob D'Amato who recently resigned from the Commission.
Council Member/Commissioner Kelley presented Citizen of the Month awards to
Sister Camillus Gavigan and Sister Maura Redington in honor of the lifetime of
support and leadership they have given the community.
Council Member/Commissioner Kelley presented a Proclamation to Claudia
Moerl, a foreign exchange student from Germany, commending her humanitarian
and academic accomplishments and appointing her an official Ambassador of the
City of San Bernardino.
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The following individuals were presented a service pin award by Mayor/
Chairman Morris in recognition of their many years of dedicated service to the
City:
Name
Bonnie Landa
Stephanie Battle
Monica Flores
Michael Potts
Department
Animal Control
Police
Police
Police
Years of Service
25
20
20
30
Milind Joshi, Director of Integrated Project Management with Omnitrans, and
A vrum Loewenstein, Parsons Transportation Group Project Manager, made a
PowerPoint and video presentation and answered questions posed by members of
the Common Council regarding the sbX Bus Rapid Transit Project.
4. Announcements
Announcements were made by 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 Full 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 1, 2008. The motion carried unanimously with the Fourth Ward
vacant.
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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 8, 2009, from
Barbara Pachon, Director of Finance, be approved. The motion carried
unanimously with the Fourth Ward vacant.
8. Personnel Actions
Council Member/Commissioner McCamrnack requested that she be provided with
documentation that shows the breakdown of the $637,000, which is the projected
total cost for personnel and equipment necessary to implement in-house graffiti
removal and property abatement services.
Council Member/Commissioner Baxter made a motion, seconded by Council
Member/Commissioner Brinker, that the personnel actions, as submitted by the
Chief Examiner, dated January 16, 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. The motion carried unanimously
with the Fourth Ward vacaut.
9. RES. 2009-1 - Resolution of the City of San Bernardino amending Resolution
2008-376 entitled in part, "Resolution...amending conflict of interest code...,"
by amending Appendix A to add, delete and change the titles of various
positions within departments of the City which must fIle conflict of interest
statements (Statements of Economic Interests, Form 700).
Council Member/Commissioner Johnson made a motion, seconded by Council
Member/Commissioner Baxter, that said resolution be adopted. Resolution No.
2009-1 was adopted unanimously with the Fourth Ward vacant.
10. Budget Amendment to fund Police helicopter services through June 30,2009
Council Member/Commissioner McCamrnack stated that due to the fact that the
City's budget shortfall for this fiscal year is predicted to be $8-12 million, she
could not support spending $278,000 on a helicopter.
Mark Weinberg, Interim City Manager, responded by saying that this is an
unaffordable expenditure; however, the City has few other alternatives. He stated
that during the budget deliberations at the outset of this fiscal year the Council
attempted to rescind this agreement, but the City Attorney advised that it was
probably best to reinstate the agreement because there was no clear language that
would allow it to be severed.
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Mr. Weinberg stated that the Council then directed him to find out whether they
could reduce their obligation this year by trying to negotiate a reduction in the
number of hours the helicopter is flown over the City and, perhaps as an
incentive, lengthen the agreement by an additional two years.
He stated that staff had some success in negotiating a modified agreement with
Mr. Bell that would have followed the direction of the Council, which was to
reduce the hourly rate the City was being charged, reduce the number of hours
being flown from 25 contractually (which he voluntarily reduced to 20) down to
12; and in return, because that was a compromise Mr. Bell felt he did not have to
make, the City asked Mr. Bell if he would be more amenable to that agreement if
the City lengthened the term of service another two years. Mr. Weinberg stated
that that would have reduced the hourly cost of flying by 10 percent, from $575
to $440, would have reduced the number of hours, and more importantly, would
have reduced the actual monthly expenditures from $41,600 to $22,000.
As close as staff got to bringing that new agreement back to the Council, they
kept getting additional financial information that made them wonder how prudent
that would be. Mr. Weinberg stated that if they cannot sever the contract, staff
would suggest that Mr. Bell be paid for his services through June 30, and that
they not exercise any option to lengthen the agreement by two years. The net
savings would be such that the City could immediately reduce the monthly charge
from $41,600 to $22,000, but over the extended term of another two years of
service there would be a net increase cost to the City of $375,000. He stated that
it is staff's recommendation that they pay for services through June 30 of this
year, and if for some reason the budget picture improves, or the Council wishes
to contract for more aviation services, they could do that.
Council Member/Commissioner Estrada requested as a precautionary measure
that staff begin to put together the necessary data so that when they start looking
at next year's expenditures they will have information that clearly explains their
options.
Council Member/Commissioner Kelley made a motion, seconded by Council
Member/Commissioner Brinker, that the Director of Finance be authorized to
amend the FY 2008/2009 adopted budget by appropriating $278,000 from
unallocated Measure Z funds to Account No. 001-223-5502 to provide helicopter
services through June 30, 2009. The motion carried. Ayes: Estrada, Baxter,
Brinker, Kelley, Johnson. Nays: McCammack. Vacant: Fourth Ward.
11. RES. 2009-2 - Resolution of the City of San Bernardino authorizing and
directing the execution of a Grant of Easement to Southern California Edison
across City owned property located at 1298 N. Pennsylvania Avenue, known
as Anne Shirrells Park (APN 0143-211-11).
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Council Member/Commissioner Johnson made a motion, seconded by Council
Member/Commissioner Baxter, that said resolution be adopted. Resolution No.
2009-2 was adopted unanimously with the Fourth Ward vacant.
12. RES. 2009-3 - Resolution of the City of San Bernardino amending Resolution
No. 3985 entitled, in part, "A Resolution...prohibiting parking upon certain
designated streets, alleys, or portions thereof..." to establish a no parking any
time zone on Lincoln Drive between Highland Avenue and the terminus of
Lincoln Drive approximately one-thousand two hundred feet south of
Twenty-first Street.
Council Member/Commissioner Johnson made a motion, seconded by Council
Member/Commissioner Baxter, that said resolution be adopted. Resolution No.
2009-3 was adopted unanimously with the Fourth Ward vacant.
13. RES. 2009-10 - Resolution of the City of San Bernardino amending
Resolution No. 3985 entitled, in part, "A Resolution...prohibiting parking
upon certain designated streets, alleys, or portions thereof..." to establish a
no parking any time zone on the west side of Sierra Way between Base Line
Street and three hundred twenty-five feet north of Base Line Street.
Council Member/Commissioner Baxter made a motion, seconded by Council
Member/Commissioner Brinker, that said resolution be adopted. Resolution No.
2009-10 was adopted unanimously with the Fourth Ward vacant.
14. RES. 2009-4 - Resolution of the City of San Bernardino amending Resolution
No. 3985 entitled, in part, "A Resolution... prohibiting parking upon certain
designated streets, alleys, or portions thereof..." to establish a no parking any
time zone on the north side of Cooley Avenue between two hundred thirty
feet west of Sunnyside A venue and five hundred forty-five feet west of
Sunnyside Avenue.
Council Member/Commissioner Johnson made a motion, seconded by Council
Member/Commissioner Baxter, that said resolution be adopted. Resolution No.
2009-4 was adopted unanimously with the Fourth Ward vacant.
15. Determination of Public Convenience or Necessity for a Type 20 Alcoholic
Beverage Control (ABC) license (Off-sale Beer & Wine) for the 3,020 square
foot service station and convenience store proposed at the northeast corner of
Palm A venue and Kendall Drive
Council Member/Commissioner Johnson made a motion, seconded by Council
Member/Commissioner Baxter, that the Mayor and Common Council determine
that the public convenience or necessity will be served by the proposed license
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and direct the Development Services Department to send a letter to the
Department of Alcoholic Beverage Control to support issuance of a Type 20 ABC
license for a 3,020 square foot service station and convenience store proposed at
the northeast corner of Palm Avenue and Kendall Drive. The motion carried
unanimously with the Fourth Ward vacant.
16. RES. 2009-11 - Resolution of the Mayor and Common Council of the City of
San Bernardino authorizing the execution of a parking agreement with the
Consulate of Mexico for two parking spaces.
Council Member/Commissioner McCammack made a motion, seconded by
Council Member/Commissioner Brinker, that said resolution be adopted.
Resolution No. 2009-11 was adopted unanimously with the Fourth Ward
vacant.
17. RES. 2009-5 - Resolution of the Mayor and Common Council of the City of
San Bernardino authorizing the execution of an Agreement for Services and
issuance of a purchase order to Texsun Construction for Fire Station 224,
Lath and Plaster Construction per Plans and Special Provisions No. 12551.
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 budget by
appropriating an additional $140,000 from the Fire Development Impact Fee
Funds in Fiscal Year 2008/2009 to Account No. 262-482-5504-7805, in
accordance with the staff report dated December 29, 2008, from Jim Sharer,
Director of Facilities Management. The motion carried and Resolution No.
2009-5 was adopted unanimously with the Fourth Ward vacant.
18. Item deleted.
19. Authorize the Director of Finance to amend the Parks, Recreation and
Community Services FY 2008/09 budget and transfer $80,000 from landscape
contracts (Account No. 001-382-5506) to materials and supplies (Account No.
001-382-5111); reduce landscape contracts (Account No. 001-382-5506) by
$100,000 and reduce EDA revenue reimbursement (Account No. 001-000-
4670) by $100,000, with no net impact to the City's budget
Council Member/Commissioner Johnson made a motion, seconded by Council
Member/Commissioner Baxter, that the Director of Finance be authorized to
amend the Parks, Recreation and Community Services FY 2008/09 budget and
transfer $80,000 from landscape contracts (Account No. 001-382-5506) to
materials and supplies (Account No. 001-382-5111), with no net impact to the
City's budget; and that the Director of Finance be authorized to amend the Parks,
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Recreation and Community Services FY 2008/09 budget and reduce landscape
contracts (Account No. 001-382-5506) by $100,000, and to also reduce EDA
revenue reimbursement (Account No. 001-000-4670) in a like amount of
$100,000, with no net impact to the City's budget. The motion carried
unanimously with the Fourth Ward vacant.
20. RES. 2009-6 - Resolution of the Mayor and Common Council of the City of
San Bernardino authorizing the Interim City Manager to execute
Amendment No.1 to the Vendor Service Agreement with Service Scape, and
the Director of Finance to increase the following contracts in an amount not
to exceed $64,000 in the aggregate: Contract Nos. 09-050 (Area "A" -
$12,500); 09-051 (Area "B" - $34,500); 09-054 (Area "E" - $6,700); and 09-
055 (Area "C" - $10,300) issued to Service Scape to cover the costs of
supplemental work in Landscape Maintenance District Areas "A", "B",
"C", and "E".
Council Member/Commissioner Johnson made a motion, seconded by Council
Member/Commissioner Baxter, that said resolution be adopted. Resolution No.
2009-6 was adopted unanimonsly with the Fourth Ward vacant.
21. Resolution of the Mayor and Common Council authorizing the execution of a
Services Agreement with Paramount Protective Services, Inc. to provide jail
staffmg for FY 2008-09.
Staff requested that this matter be tabled.
Council Member/Commissioner McCammack made a motion, seconded by
Council Member/Commissioner Kelley, that the matter be tabled. The motion
carried unanimously with the Fourth Ward vacant.
22. RES. 2009-7 - Resolution of the City of San Bernardino authorizing an
amendment to the Lease and Services Agreement with Nestor Traffic
Systems, Incorporated.
Council Member/Commissioner Johnson made a motion, seconded by Council
Member/Commissioner Baxter, that said resolution be adopted. Resolution No.
2009-7 was adopted unanimously with the Fourth Ward vacant.
23. Set a public hearing on March 2, 2009 at 4:00 p.m., for the placement of
liens on delinquent refuse collection accounts
Council Member/Commissioner Estrada requested that the department break
down the delinquent commercial accounts separately from the delinquent
residential accounts in their report.
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Council Member/Commissioner McCammack made a motion, seconded by
Council Member/Commissioner Estrada, that the Mayor and Common Council
set a public hearing for March 2, 2009 at 4:00 p.m., for the placement of liens on
delinquent refuse collection accounts. The motion carried unanimously with
the Fourth Ward vacant.
24. RES. 2009-12 - A Resolution authorizing the execution of an agreement and
issuance of a purchase order in the amount of $47,556.47 to Neff Rental
Company of San Bernardino pursuant to Section 3.04-010-B3 of the
Municipal Code for a SRECO-trailer mounted sewer rodder to be utilized by
the Public Services Department Street Division Sewer Maintenance Crew.
Joe Ortiz, 387 W. 25th Street, San Bernardino, CA, spoke regarding the method
of graffiti removal in the City.
Council Member/Commissioner McCarnmack made a motion, seconded by
Council Member/Commissioner Brinker, that said resolution be adopted; and that
the Director of Finance be authorized to amend the FY 2008/2009 budget by
transferring $47,600 from Account No. 132-431-5704 (Miscellaneous Equipment)
to Account No. 132-431-5701 (Motor Vehicles). The motion carried and
Resolution No. 2009-12 was adopted unanimously with the Fourth Ward
vacant.
25. RES. 2009-8 - Resolution of the Mayor and Common Council of the City of
San Bernardino authorizing the execution of an agreement and issuance of a
purchase order in the amount of $29,100 to All American Truck & Auto
Body in order to repair refuse unit 191.
Council Member/Commissioner Johnson made a motion, seconded by Council
Member/Commissioner Baxter, that the Director of Finance be authorized to
amend the FY 2008/09 adopted budget and transfer $29,100 from Account No.
527-412-5179 (Dump/Waste Fees) to Account No. 527-413-5172 (Equipment
Maintenance); and that said resolution be adopted. The motion carried and
Resolution No. 2009-8 was adopted unanimously with the Fourth Ward
vacant.
26. RES. 2009-13 - A Resolution authorizing the execution of an agreement and
issuance of a purchase order in the amount of $77,760.44 to Fairview Ford of
San Bernardino pursuant to Section 3.04.010-B3 of the Municipal Code
"Purchases Approved by the Mayor and Common Council" for the purchase
of (4) four 2009 Ford F-250 pick up trucks, to be utilized by the new Public
Services Department Graffiti Abatement Crew.
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Council Member/Commissioner McCarnmack voiced her concerns with
purchasing new trucks rather than used trucks for the graffiti abatement crew.
Joe Ortiz, 387 W. 25th Street, San Bernardino, CA, spoke regarding graffiti
removal by City crews versus graffiti removal by Los Padrinos.
C. Patience Summers, 868 E. Rialto Avenue, San Bernardino, CA, voiced her
concerns regarding the termination of the contract with Los Padrinos and the fact
that the City has to purchase new trucks and tools.
Council Member/Commissioner Kelley made a motion, seconded by Council
Member/Commissioner Brinker, that said resolution be adopted. Resolution No.
2009-13 was adopted. Ayes: Baxter, Brinker, Kelley, Johnson. Nays:
Estrada, McCammack. Vacant: Fourth Ward.
27. RES. 2009-9 - Resolution authorizing the execution of an agreement and
issuance of a purchase order to Fairview Ford of San Bernardino pursuant to
Section 3.04.010-B3 of the Municipal Code for the purchase of twelve (12)
refuse trucks complete with refuse bodies and LNG conversion to be utilized
by the IWM Division; and authorizing the purchasing manager to solicit
lease-purchase rate quotes and award a lease-purchase to the lowest
responsible leasing company.
Council Member/Commissioner Johnson made a motion, seconded by Council
Member/Commissioner Baxter, that said resolution be adopted. Resolution No.
2009-9 was adopted unanimously with the Fourth Ward vacant.
28. Ratification of the submittal of a grant application to the International City/
County Management Association (ICMA) for a Public Library Innovation
Grant
Council Member/Commissioner McCarnmack made a motion, seconded by
Council Member/Commissioner Baxter, that the Mayor and Common Council
ratify the submittal of a grant application to the International City/County
Management Association (ICMA) for a Public Library Innovation Grant and
authorize the City Manager to expend the grant funds, if awarded. The motion
carried. Ayes: Estrada, Baxter, Kelley, Johnson, McCammack. Nays:
None. Absent: Brinker. Vacant: Fourth Ward.
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29. An Ordinance of the City of San Bernardino amending Chapter 15.24 of the
San Bernardino Municipal Code relating to property maintenance
requirements. FIRST READING
Council Member/Commissioner Kelley made a motion, seconded by Council
Member/Commissioner Johnson, that said ordinance be laid over for final
adoption. The motion carried. Ayes: Estrada, Baxter, Kelley, Johnson,
McCammack. Nays: None. Absent: Brinker. Vacant: Fourth Ward.
30. Public hearing and resolution imposing liens on property located within the
City of San Bernardino for uncollected Business Registration fees
RES. 2009-14 - 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 Morris opened the hearing.
No public comments were received.
Council Member/Commissioner Kelley made a motion, seconded by Council
Member/Commissioner Estrada, that the hearing be closed; that the City Clerk be
directed to administratively remove any properties from Exhibit A to the staff
report dated December 29, 2008, from Rachel Clark, City Clerk, which have
been paid prior to the hearing; and that said resolution be adopted. The motion
carried and Resolution No. 2009-14 was adopted. Ayes: Estrada, Baxter,
Kelley, Johnson, McCammack. Nays: None. Absent: Brinker. Vacant:
Fourth Ward.
31. Public hearing - Resolutions approving the annexation, calling a special
election and certifying the results of an election relative to Community
Facilities District No. 1033 Annexation No. 7 for property consisting of a
commercial development located on the southwesterly side of Belmont
Avenue, southeasterly of Palm Avenue (CUP No. 07-31, First Assembly of
God Church)
RES. 2009-15 - A Resolution of the Mayor and Common Council of the City
of San Bernardino, California, authorizing the annexation of territory
generally located between Palm Avenue and Olive Avenue southwesterly of
Belmont Avenue (Annexation No. 7) to Community Facilities District No.
1033 and authorizing the levy of special tax and submitting the levy of tax to
the qualified electors. (31A)
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RES. 2009-16 - A Resolution of the Mayor and Common Conncil of the City
of San Bernardino, California, calling a special election and submitting to the
voters of Annexation No. 7 of City of San Bernardino Community Facilities
District No. 1033 propositions regarding the annual levy of special taxes
within Annexation No. 7 and the establishment of an appropriations limit.
(3IB)
RES. 2009-17 - A Resolution of the Mayor and Common Council of the City
of San Bernardino, California, making certain rmdings, certifying the results
of an election and adding property to Community Facilities District No. 1033,
Annexation No.7. (31C)
Mayor/Chairman Morris opened the hearing.
City Clerk Clark stated that she concurred in the holding of the special election
for the Community Facilities District Annexation.
No public comments were received.
Council Member/Commissioner Kelley made a motion, seconded by Council
Member/Commissioner Baxter, that the public hearing relative to Annexation No.
7 to Community Facilities District No. 1033 be closed; and that said resolutions
A and B be adopted. The motion carried and Resolution Nos. 2009-15 and
2009-16 were adopted. Ayes: Estrada, Baxter, Kelley, Johnson,
McCammack. Nays: None. Absent: Brinker. Vacant: Fourth Ward.
Mayor/Chairman Morris asked the City Clerk to tabulate the election results. He
stated that if greater than two-thirds of the votes cast were in favor of the
propositions, then the Mayor and Common Council may declare the election
results by adopting Resolution C.
City Clerk Clark advised that one ballot representing six votes had been received
and the vote was in favor of both Proposition A and Proposition B.
Council Member/Commissioner Kelley made a motion, seconded by Council
Member/Commissioner Johnson, that said resolution C be adopted. Resolution
No. 2009-17 was adopted. Ayes: Estrada, Baxter, Kelley, Johnson,
McCammack. Nays: None. Absent: Brinker. Vacant: Fourth Ward.
32. Public hearing - Development Code Amendment No. 08-03, an ordinance
amending Sections 19.06.025 and 19.06.030 of the Development Code to
modify restrictions on the location of convenience stores and off-site ABC
licenses in the City of San Bernardino
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An Ordinance of the City of San Bernardino amending Chapter 19.06
(Commercial Districts) Sections 19.06.025 and 19.06.030 of the San
Bernardino Municipal Code (Development Code) related to convenience
stores and off-site ABC licenses. FIRST READING
Mayor/Chairman Morris opened the hearing.
Council Member/Commissioner McCarnmack made a motion, seconded by
Council Member/Commissioner Estrada, that the hearing be closed, and that the
matter be referred to the Legislative Review Committee (LRC). No vote was
taken.
Council Member/Commissioner Brinker asked why this item was being referred
back to the Legislative Review Committee rather than laying the ordinance over
for final adoption.
Deputy City Attorney Henry Empefio stated that on both Agenda Item Nos. 32
and 33, the City Attorney's office declined to approve the proposed ordinances as
to form. He stated that they feel that the proposed ordinances lack objective
standards; therefore, they are vague and ambiguous and in violation of the due
process requirements of the Fifth and Fourteenth Amendments to the United
States Constitution. Without specific objective standards, Mr. Empefio stated that
the Mayor and Common Council, and even the Planning Commission, could
waive or modify the distance separation requirements in both of the ordinances
without any guidance; therefore, the decisions could be arbitrary and capricious.
In the case of these convenience stores, with a waiver or modification of the
distance requirements, a convenience store, and even a liquor store, could be
approved abutting a church, abutting a school, abutting a park, or abutting
another convenience store.
Council Member/Commissioner Brinker stated that they have had numerous
hearings on this issue over a long period of time and he could not believe that this
issue was now being raised by the City Attorney's office.
City Attorney Penman stated that when this came before the LRC he gave the
explanation to the committee at that time that what they were trying to do did not
pass constitutional muster and that it would undermine the moratorium. Mr.
Penman stated that Deputy City Attorneys Empefio and Dimichele had told him
that the Council would be better off to repeal the entire moratorium than to enact
these two changes because they would so undermine the ordinance that the
likelihood the City would be sued would be very great. And, it would not
necessarily be by someone who was denied a CUP for a 99 Cent Store or a
convenience store, but by a person who wanted to put something else in entirely
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different and could point to these two amendments should they be passed and
point out that this makes the entire moratorium arbitrary and capricious.
Valerie Ross, Development Services Director, stated that potential changes to
convenience stores and potential changes to the single-price overstock businesses
were interchangeably discussed at LRC three or four times. After LRC, she took
both items to Council separately for direction to proceed with the amendments.
On the convenience stores she was unable to come up with objective criteria to
allow consideration of two particular requests that had been brought to the
attention of the LRC. She stated that she felt the best thing they could do at this
point would be to go back to LRC. Part of what was being proposed were
changes to policy issues and she did recommend against them at the LRC;
however, she recognized that those were policy issues and it was up to the
Council to make that determination. With the Council's direction to proceed on
both of them, she understood that the Council was supporting them from policy
perspective.
Council Member/Commissioner Estrada suggested that in the future when these
items are brought before them, that the minutes of the LRC meeting are attached
to the item so that there can be no question as to who was at those meetings and
what was said, and that way the Mayor and Council would have a complete
background on the issue.
Council Member/Commissioner Baxter stated that he remembers this particular
item and he was against it because he recalled discussing a particular convenience
store at the corner of Highland and Mountain View where there had been
numerous problems adjacent to a laundromat, and they were told by
representatives of the franchise that it's up to each individual owner how they
police their own store. Representatives from the Police Department shared that
they have a high rate of calls at that location as well as other locations, and that is
why it was on the moratorium list to begin with.
Council Member/Commissioner Baxter stated that he was on the City Council
when the moratorium began over two and one-half years ago, and the reason why
they made that part of the moratorium was because of the high number of police
calls on those items where the moratorium exists, and that included certain types
of convenience stores, certain types of laundromats, tattoo parlors and smoke
shops, etc. Having been a party to that very moratorium to begin with, he could
not advocate that they would want to piece-meal this together, and as the City
Attorney has pointed out, potentially ruin the entire dedication of that particular
moratorium, which is to reduce crime in our City.
Council Member/Commissioner Kelley asked the Interim City Manager what the
committee's recommendation was to the full Council on these items.
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Interim City Manager Weinberg stated that the committee had recommended that
the Council move forward. Subsequently, the Council recommended that staff
move forward to draft legislation. He stated that those recommendations have to
be translated into statute, and when that was done, the City Attorney's Office had
some serious concerns and they have outlined those concerns, and have advised
that it creates undue liability.
Council Member/Commissioner McCarnmack stated that the moratorium was
unanimously adopted by the Council and was in place because of the hundreds of
phone calls many of them got relative to the types of businesses that were being
allowed to pop up in every single vacant store. However, some Council members
indicated that they would rather see a 99 cent store, a thrift store, a pawn shop, a
smoke shop, a check-cashing store, a convenience store, a laundromat, or a
boom-box store in every store front rather than see the stores vacant.
Council Member/Commissioner Brinker stated that he felt the moratorium did not
address the specific issues of those businesses. All it did was prevent other
businesses from coming in and it was done in such a broad way that suddenly all
businesses of that type and class were suddenly suspect.
Council Member/Commissioner Kelley made a substitute motion, seconded by
Council Member/Commissioner Brinker, that the hearing be closed; and that said
ordinance be laid over for final adoption. The motion failed. Ayes: Brinker,
Kelley. Nays: Estrada, Baxter, Johnson, McCammack. Vacant: Fourth
Ward.
Council Member/Commissioner McCammack made a motion, seconded by
Council Member/Commissioner Estrada, that the hearing be closed; and that the
item be referred back to the Legislative Review Committee for discussion. The
motion carried. Ayes: Estrada, Baxter, Brinker, Johnson, McCammack.
Nays: Kelley. Vacant: Fourth Ward.
33. Public Hearing - Development Code Amendment No. 08-04, an ordinance
amending Section 19.06.025 of the Development Code to provide for
exceptions to the prohibition of single-price overstock/discount stores in the
City of San Bernardino
An Ordinance of the City of San Bernardino amending Chapter 19.06
(Commercial Districts), Section 19.06.025 of the San Bernardino Municipal
Code (Development Code) related to single-price overstock/discount stores.
FIRST READING
Mayor/Chairman Morris opened the hearing.
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Council Member/Commissioner McCarnmack made a motion, seconded by
Council Member/Commissioner Estrada, that the hearing be closed; and that the
item be referred to the Legislative Review Committee. The motion carried.
Ayes: Estrada, Baxter, Brinker, Johnson, McCannnack. Nays: Kelley.
Vacant: Fourth Ward.
34. Workshop on Community Facilities Districts
Emil Marzullo, Economic Development Agency Interim Executive Director,
made a PowerPoint presentation regarding Assessment Districts and Community
Facilities Districts.
Council Member/Commissioner Kelley made a motion, seconded by Council
Member/Commissioner Johnson, that the matter be referred to the Ways &
Means Committee. The motion failed. Ayes: Baxter, Kelley, Johnson. Nays:
McCammack. Absent: Estrada, Brinker. Vacant: Fourth Ward.
Council Member/Commissioner McCarnmack made a motion, seconded by
Council Member/Commissioner Johnson, that the matter be referred to the
Redevelopment Committee for discussion. The motion carried. Ayes: Baxter,
Kelley, Johnson, McCammack. Nays: None. Absent: Estrada, Brinker.
Vacant: Fourth Ward.
35. Annual Report of the Bicentennial Ad Hoc Committee (This item was covered
under presentations.)
COMMUNITY DEVELOPMENT COMMISSION
Present: Mayor/Chairman Morris; Council Members/Commissioners Estrada, Baxter,
Kelley, Johnson, McCarnmack; Economic Development Agency Interim
Executive Director Marzullo and Agency Counsel Sabo; City Clerk Clark.
Absent: Brinker
Vacant: Fourth Ward
R36. 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 McCarnmack advised that the City may be in
violation of IRS law related to 1099s and independent contractors. She stated that
the IRS has issued warnings relative to 1099s, consultants, and contractors, and
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the rules are getting tighter. She stated that if there is a certain requirement for
so many hours of service or requirements of when and where to show up, and
how often to show up, you're not a contractor or a consultant, you're an
employee.
Tim Sabo, Agency Counsel, stated that it is always an issue when you have
someone acting as a consultant who is an individual rather than a company. The
risk is solely upon the contractor, and they would have to pay employment taxes,
and the Agency would have to pay a share as well.
Council Member/Commissioner McCarnmack stated that there are also sanctions
and penalties.
Emil Marzullo, Economic Development Agency Interim Executive Director,
stated that in this case June Durr is an independent contractor from the standpoint
that the Agency does not set her hours. He stated that her work is based upon a
set work product not a set work schedule. She has a business license within the
City and the Agency issues her a 1099. Section 9 of the contract clearly states
that if there are payroll taxes to be paid it is her responsibility and not the
Agency's. Had she been an employee, where she worked a set schedule from 8
a.m. to 5 p.m., five days per week, then that would be a different situation, but
that is not the case in this instance.
Council Member/Commissioner McCarnmack stated that there is only one
problem with that scenario and that is the fact that she was listed as being
provided an hourly wage up to a certain amount of money, so that actually
requires a certain amount of hours. She advised that that is not an independent
contractor per IRS law.
Mr. Marzullo stated that it is a not -to-exceed amount at a set rate per hour so if
she works 10 hours she gets paid that amount per hour, and if she works 100
hours she gets that amount, but it does not exceed the total of the contract, which
would be very similar to what they would do with any other independent
contractor.
Council Member/Commissioner McCarnmack asked where this work occurred.
Mr. Marzullo stated that the work occurred at their office.
Council Member/Commissioner McCarnmack stated that this meant she was not
an independent contractor.
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Council Member/Commissioner Johnson made a motion, seconded by Council
Member/Commissioner Kelley, that said resolution be adopted. The motion
failed. Ayes: Baxter, Kelley, Johnson. Nays: Estrada, McCammack.
Absent: Brinker. Vacant: Fourth Ward.
R37. Purchase of a diesel powered commercial riding lawn mower for use by the
Community Beautification Services and Blight Abatement Program Team
(Central City Meadowbrook, Central City North, Central City South,
Central City West, Central City East, Mt. Vernon Corridor, Southeast
Industrial, Uptown and South Valle Redevelopment Project Areas)
RES. CDC/2009-4 - 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"), or his designee, to purchase a diesel powered
commercial lawn mower for use by the Community Beautification Services
and Blight Abatement Program Team.
Council Member/Commissioner McCarnmack abstained because she owns
property within the Uptown Redevelopment Project Area. She left the dais and
returned after the vote was taken.
Council Member/Commissioner Kelley made a motion, seconded by Council
Member/Commissioner Baxter, that said resolution be adopted. Resolution No.
CDC/2009-4 was adopted. Ayes: Estrada, Baxter, Kelley, Johnson. Nays:
None. Absent: Brinker. Abstentions: McCammack. Vacant: Fourth
Ward.
R38. 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. 1 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).
Emil Marzullo, Economic Development Agency Interim Executive Director,
requested that this matter be continued. He stated that the City Attorney's Office
had reviewed this item and requested that a City resolution be included because it
involves a piece of City property.
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Council Member/Commissioner Estrada made a motion, seconded by Council
Member/Commissioner Baxter, that the matter be continued to the Council/
Commission meeting of February 2, 2009. The motion carried. Ayes:
Estrada, Baxter, Kelley, Johnson, McCammack. Nays: None. Absent:
Brinker. Vacant: Fourth Ward.
R39. Recommend transfer of personnel and certain assets of the City to the
Agency related to the CATV Division
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.
Resolution of the Community Development Commission 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.
Staff requested that the matter be continued in order to give the Council time to
review the backup material that had just been distributed.
Council Member/Commissioner McCarnmack made a motion, seconded by
Council Member/Commissioner Estrada, that the matter be continued to the
Council/Commission meeting of February 2, 2009. The motion carried. Ayes:
Estrada, Baxter, Kelley, Johnson, McCammack. Nays: None. Absent:
Brinker. Vacant: Fourth Ward.
PLANNING ITEMS
40. Appeal Hearing - Conditional Use Permit No. 08-09 (Appeal No. 08-05) - An
appeal of the Planning Commission's approval of a telecommunications
facility and associated equipment at an existing church site located at 2898
North "G" Street, in the RS, Residential Suburban, land use district
Council Member/Commissioner McCarnmack abstained because she and her
husband own a parcel of land that has a cell tower on it. She left the dais and
returned after the vote was taken.
Mayor/Chairman Morris opened the hearing.
Terri Rahhal, Development Services Deputy Director/City Planner, stated that
the project is a proposal to construct a monopine tower, which is a 75 foot
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wireless communications tower disguised as a pine tree, in the parking lot of
Faith Bible Church. She stated that the site is adjacent to Caltrans right-of-way
for the 259 Freeway, which connects the northbound 1-215 Freeway to the
eastbound 1-210 Freeway.
Ms. Rahhal stated that several residents had attended the Planning Commission
hearing, spoke against the proposal and submitted a petition in opposition to the
project. She stated that the residents voiced their concerns about the potential
impact and the visual impact of the proposed monopine on their community.
They also stated that cellular service is satisfactory in that area and they did not
believe additional facilities were needed to provide services at this location. The
Planning Commission approved the project based on the Findings of Fact
contained in the staff report dated September 16, 2008, including a finding that
the project does conform to the development standards in the City's Development
Code for telecommunication facilities, and that the site is appropriate to
accommodate a wireless communications tower. Staff recommended that the
Mayor and Council deny Appeal No. 08-05 and uphold the Planning
Commission's approval of Conditional Use Permit No. 08-09.
Pursuant to Resolution No. 2000-279, City Clerk Clark administered an oath to
the following individuals that they would provide true and honest testimony:
John Beke, Site Acquisition Manager for Metro PCS, 2280 Market Street, #320,
Riverside, CA, stated that the appeal is based on assertions that the existing
services in the area are satisfactory and the facility being located in a residential
zone is not appropriate. He stated that the proposed site is on the rear of the lot
next to the mature freeway landscaping. Mr. Beke stated that churches, parks
and schools have been good places for cell sites when located in residential zones.
Without this site in operation, Metro PCS would have a significant gap in
coverage whereby customers would not be able make calls, or existing calls
would drop when driving through this area. He requested that the Council deny
the appeal and uphold the Planning Commission's approval of CUP No. 08-09.
Ulisses Molinard, Radio Frequency Engineer with Metro PCS, 2280 Market
Street, #320, Riverside, CA, stated that he was available to answer any technical
questions regarding this project.
The following individuals spoke in support of the proposed cell tower:
Jenny Overton, 3850 Atlantic A venue, Highland, CA;
Dorothy Garrison, 2589 Amanda Street, Highland, CA;
Pastor John Frederick, 6102 McKinley, San Bernardino, CA;
Jan Flower, third grade teacher at San Bernardino Christian School, 518 S.
Indian Hill Blvd., #102, Claremont, CA.
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The following individuals spoke in opposition to the proposed cell tower:
Douglas Andrew Bubeck, 674 W. 29th Street, San Bernardino, CA;
Enrique Vazquez, Jr., 636 W. 29th Street, San Bernardino, CA;
Mario Galicia, 664 W. 29th Street, San Bernardino, CA.
Council Member/Commissioner Kelley made a motion, seconded by Council
Member/Commissioner Brinker, that the hearing be closed; and that the Mayor
and Common Council deny Appeal No. 08-05 and uphold the Planning
Commission's approval of Conditional Use Permit No. 08-09, based on the
Findings of Fact contained in the Planning Commission staff report dated
September 16, 2008. The motion carried. Ayes: Estrada, Baxter, Brinker,
Kelley, Johnson. Nays: None. Absent: None. Abstentions: McCammack.
Vacant: Fourth Ward.
41. Public Comments
Joe Arnett, 1681 E. Echo Drive, San Bernardino, CA, introduced himself to the
public and announced that he was a candidate for the 4th Ward Council seat.
Margie Arnett, 1681 E. Echo Drive, San Bernardino, CA, urged the residents of
San Bernardino to help initiate positive change by joining a neighborhood group,
helping clean up the City, painting over graffiti, joining the City's mentorship
program, helping a student with their homework, taking garbage from empty
fields to the dump, or helping a family in need.
Joe Ortiz, 387 W. 25th Street, San Bernardino, CA, spoke regarding the City's
new graffiti program and the termination of the contract with Los Padrinos.
C. Patience Summers, 868 E. Rialto Avenue, San Bernardino, CA, spoke about
the contract with Los Padrinos and the Operation Phoenix program.
Gil Navarro, 1440 W. 6th Street, San Bernardino, CA, spoke about Code
Enforcement's practice of selective enforcement. He pointed out that the street
lights on Mt. Vernon Avenue and Fifth Street were out again.
Charles Greenwood, City employee, thanked the members of the Fire
Department who helped his mom with her meter problems. He requested that the
City monitor the workload of the graffiti crew.
Trinity Wallace-Ellis, Executive Director of Child Advocates of San Bernardino
County, 555 "D" Street, San Bernardino, CA, shared information about the
foster care program and stated that they are in need of funding and volunteers.
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NBI. Interim appointment of Council Member Rikke Van Johnson to the Indian
Gaming Local Community Benefit Committee, per Mayor Morris' request
Council Member/Commissioner Kelley made a motion, seconded by Council
Member/Commissioner Baxter, that the matter arose subsequent to the posting of
the agenda. The motion carried. Ayes: Estrada, Baxter, Kelley, Johnson,
McCammack. Nays: None. Absent: Brinker. Vacant: Fourth Ward.
Council Member/Commissioner Kelley made a motion, seconded by Council
Member/Commissioner Baxter, that the interim appointment of Council Member
Rikke Van Johnson to the Indian Gaming Local Community Benefit Committee,
as requested by Mayor Morris, be approved. The motion carried. Ayes:
Estrada, Baxter, Kelley, Johnson. Nays: McCammack. Absent: Brinker.
Vacant: Fourth Ward.
42. Adjournment
At 9: 15 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, February 2, 2009.
RACHEL G. CLARK
City Clerk
BY~~ ./ UAJA~-1
Linda Sutherland
Deputy City Clerk
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