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HomeMy WebLinkAboutRS1- Economic Development ECONO IC DEVELOPMENT AG ( CY Or THE CITY OF SAN BERNARDINO REQUEST FOR COMMISSION/COUNCIL ACTION FROM: TIMOTHY C. STEINHAUS SUBJECT: STATE CONSOLIDATED Agency Administrator OFFICE AND CALTRANS BUILDINGS PROPOSAL DATE: July 29, 1993 ---------------------------------------------------------------------------------------------------------------------- Synopsis of Previous Commission/Council/Committe Action (s): None. --------------------------------------------------------------------------------------------------------------------- Recommended Motion(s): (Community Development Commission) MOTION: That the Community Development Commission review and approve for submission to the State of California the Agency's propos related to the State Consolidated Office and Caltrans buildings. TIMOTHY C. STE AUS Agency Administrator ------—------------------------ ----------___---____----- Contact Person(s): Timothy C. Steinhaus Phone: 5081 Project Area(s): All Ward(s): 1 - 7 Supporting Data Attached: Staff Report FUNDING REQUIREMENTS: Amount: $ N/A Source: N/A Budget Authority: N/A --------------------------------------------------------------------------------------------------------------------- Commission/Council Notes: - -------------------------------------------------------- TCS:Iag:STATE COMMISSION MEETING AGENDA Meeting Date: 08/02/1993 Agenda Item Number: 11��7�� ECONC ' IC DEVELOPMENT AC NCY Or THE CITY OF SAN BERNARDINO STAFF REPORT --------------------------------------------------------------------------------------------------------------------- State Consolidated Office and Caltrans Buildines Proposal A proposal to the State of California has been developed relating to the development of a State consolidated office building and a separate structure for the State Department of Transportation (CALTRANS). In keeping with prior Commission direction, said proposal is be submitted for review and approval prior to formal submission to the State. Based upon prior Commission actions and in an effort to expedite the negotiation process with the State, staff recommends adoption of the form motion. f-4-�4,L TIMOTHY e STEINHAUS, Administrator Economic Development Agency ---------------------------------------------------------------------------------------------------------------- TCS:Iag:STATE COMMISSION MEETING AGENDA Meeting Date: 08/02/1993 Agenda Item Number: CITY OF SAN BERNARDINO OFFICE OF THE CITY ATTORNEY JAMES F. PENMAN City Attorney August 2, 1993 Opinion No. 93-15 TO: Commission Member Ralph Hernandez RE: Possible Conflict of Interest of Consultant Rod MacDonald ISSUE You have inquired whether Rod MacDonald, currently retained by the Economic Development Agency as a consultant, has a conflict of interest as part of the Agency Team putting together a proposal for the State for a government block downtown, if as part of the proposal the team recommends that Mr. MacDonald be the project administrator. CONCLUSION The action of Mr. MacDonald in participating in the formulation of a proposal which includes the recommendation that his firm be the project administrator for the government block, does not run counter to any of the possibly applicable conflict of interest laws (Government Code 51090, Health and Safety Code 533130 and the Political Reform Act) . As a result Mr. MacDonald may proceed to work on this project if approved by the Commission to do so. He should, however, file a financial disclosure form under the Political Reform Act. ANALYSIS Since the retention of Mr. MacDonald in either capacity is a contract we will begin our analysis with Government Code 51090. This section provides: "Members of the legislature, state, county, district, judicial district, and city officers or employees shall not be financially interested in any DAB:ms[MacDonald.opn] 1 CITY HALL 300 NORTH 'D'STREET • SAN BERNARDINO, CALIFORNIA 92418 (714) 384-5355 TO: Commission Member Ralph Hernandez RE: Possible Conflict of Interest of Consultant Rod MacDonald Page 2 contract made by them in their official capacity, or by any body or board of which they are members. Nor shall state, county, district, judicial district, and city officers or employees be purchasers at any sale or vendors at any purchase made by them in their official capacity. "As used in this article, 'district' means any agency of the State formed pursuant to general law or special act, for the local performance of governmental or proprietary functions within limited boundaries. " Mr. MacDonald is neither an officer nor an employee of the City or of the Agency. The Court in City Council v. McKinley ( 1978 ) 80 CA 3d, 204, clearly specified the requirements for a public office: "It is apparent now there are two requirements for a public office; first, a tenure of office which is not transient, occasional, or incidental but is of such a nature that the office itself is an entity in which members succeed one another and which does not cease or exist with the termination of incumbency and, second, the delegation to the office of some portion of the sovereign functions of government either legislative, executive, or judicial . (Citation omitted) " ( at pg. 210) . The term "employee" does not include an independent contractor such as a consultant unless the statute clearly so provides ( see Government Code §812. 2, and 52 Cal.Jur. 3d "Public Officers and Employees" 5196 ) . In Old Town Dev. Corp. v. Urban Renewal Agency, ( 1967) 249 CA 3d 313, the court considered the situation of a consultant as part of a panel of experts selected to review development proposals. The consultant had had and was anticipated to continue to have a financial and business relationship with the developer which was recommended by the panel and ultimately selected by the Agency. An unsuccessful developer claimed that this arrangement was a conflict of interest. The Court concluded: "The decision of the agency to qualify only Custom House Associates was made by it. The review panel only offered recommendations, which the agency was free to adopt or reject in the exercise of its own discretion. " ( at pg. 328 ) . DAB:ms[MacDonald.opn] 2 TO: Commission Member Ralph Hernandez RE: Possible Conflict of Interest of Consultant Rod MacDonald Page 3 Since in the present instance Mr. MacDonald is neither an officer nor an employee and any participation by him in the formulation by the team of a proposal for the State was only a recommendation to the Mayor and Council, there can be no violation of Government Code §1090. The Mayor and Council are free to adopt or reject the proposal in the exercise of their discretion. Likewise the specific statutory provision relating to redevelopment law provides in pertinent part as follows: "No agency or community officer or employee who in the course of his or her duties is required to participate in the formulation of, or to approve plans or policies for, the redevelopment of a project area shall acquire any interest in any property included within a project area within the community. . . . " (Health and Safety Code S33130( a) ) . Not only is Mr. MacDonald neither an officer nor employee as discussed above, he is not proposing to acquire any interest in property as proscribed by the statute. Therefore there is also no violation of this statute. In 1974 by initiative measure, the electorate of the State adopted the Political Reform Act. Among other things this enactment imposes broad conflict of interest restrictions. The primary prohibition is found in Government Code 587100 which provides: "No public official at any level of state or local government shall make, participate in making or in any way attempt to use his official position to influence a governmental decision in which he knows or has reason to know he has a financial interest. " For the purposes of the Act "public official" is defined as: every member, officer, employee or consultant of a state or local government agency (Government Code 582408 - emphasis added) . Although "consultant" is included in the above definition the regulations adopted by the Fair Political Practice Commission clarify this term: " 'Consultant' shall include any natural person who provides, under contract, information, advice, DAB:ms[MacDonald.opnJ 3 TO: Commission Member Ralph Hernandez RE: Possible Conflict of Interest of Consultant Rod MacDonald Page 4 recommendation or counsel to a state or local government agency, provided, however, that 'consultant' shall not include a person who: (A) Conducts research and arrives at conclusions with respect to his or her rendition of information, advice, recommendation or counsel independent of the control and direction of the agency or of any agency official, other than normal contract monitoring; and (B) Possesses no authority with respect to any agency decision beyond the rendition of information, advice, recommendation or counsel. " ( 2 California Code of Regulations 518700( a) ( 2 ) ) . There is no judicial decision which we have been able to discover which gives any clarification to this provision. However from our understanding of the duties of Mr. MacDonald he was to prepare proposals for the development of a government block in downtown San Bernardino, in conjunction with, but not subject to the control and direction of, Agency Staff. In addition after the submission of his recommendations he has no further authority with respect to Agency decisions regarding those recommendations. As such he falls within the exception outlined above and the Act does not apply to him. In addition the law states that income from a public agency is not income for the purposes of the Political Reform Act. " ' Income' . . . does not include: " ( 2 ) Salary and reimbursements for expenses or per diem received from a state, local, or federal government agency . . . " (Government Code §82030(b) - See also Bach v. McNelis ( 1989 ) 207 CA 3d 852, 868) . Therefore if such compensation is not income as defined by the Act, it cannot be a financial conflict of interest for him to recommend as part of the proposal that he continue to be retained by the Agency as a consultant. DAB:ms[MacDonald.opn] 4 TO: Commission Member Ralph Hernandez RE: Possible Conflict of Interest of Consultant Rod MacDonald Page 5 Under Government Code §87301, regular financial disclosure is required by all designated employees. Under §82019 "designated employees" includes consultants. We would certainly recommend that consultants be formally added to the Agency' s (and City' s) list of designated employees, if they have not been already, but pending that formal action we advise that Mr. MacDonald file a financial disclosure form. In addition it should be clearly noted that under the provisions of Government Code §83114 as part of the Political Reform Act, any person may request an opinion of, or seek the advice of the Fair Political Practices Commission concerning his or her duties under the Act. Such an opinion or advice may be relied upon so long as the Commission was provided with all the material facts, and will constitute a complete defense to civil or criminal penalties under the Political Reform Act. We would strongly encourage Mr. MacDonald to avail himself of this opportunity. Respectfully submitted, i DENNIS.. BARLOW, Sr. Asst. City Attorney Concur: JAMES F. PENMAN c% ity Attorney cc: Tom Minor, Mayor Council Members Rachel Clark, City Clerk David C. Kennedy, City Treasurer Shauna Clark, City Administrator All Department Heads Rod MacDonald DAB:ms[MacDonald.opn] 5 AUG 02 '93 10:02AN DGS EXECUTIVE OFFICE P. t1/1 STATE OF CALIFoANIA-$TAM AND CONSUMER _,4 vlceS AGr:;., ' FST6 annLacn.Go remo. DEPA1RIMENT OF GENERAL SERVIC15S -� EXEGUTPVE DICE 1825 J STNSCT,SUnF 1.4in SACfIAMENTO, CA 9581s9 August 2, 1993 Mr. Timothy C. 'Steinhaaus 01 North E Street ;.San Bernardino, CA 9240"1.950'1 Dear Tirn: I would like to thank you for the dramatic progress and Cooporafmn shown by the Economn( Development Agency of San Sernardino in Support of our efforts to consolici to state office space in the downtown area, I would also like to emphasize again that wo are eager to move as quickly as possible in order to create jobs and take aclvantage of tha cast savings opportunity provided by such a move. Time is also of the esseow because we have available to us historiGglly low constructio, and financing co$ts� In order to move the project quickly, we are hoping that you can expedite the process of assembling a qualified development team. The State would like to participate in this process in two regards; 7. We would like to participate directly in the intefYewing and selecting of architects ;and contractors (I suspect that a developer does not need to be involved in this type of build suit). 2. We would like to have the typical rights of approval which major tenants enjoy including, but not limited to, the approval of architect, program, preliminary design, working drawings, schedule and budget. At your suggestion, we have discussed a number of options for selecting an architect for the project and we would be very pleased if you were able to retain the firm which we have had under consideration. With regard to general construction, I suggest that it is in both of our interests to select a contractor as quickly as possible but to reserve the right to competitively bid every s0- trade on the job.. Again, the speed and quality of your proposal are much appreciated and I look forward to working with you. Si erely, . DANIEL A. ROSENFELD Deputy Director DAR:ea Post-it"brand fax transmittal memo 7WI etorpOa t P. '°`i7�'I Sir riryqu- F'°"'n• 'n.C'�',r.,..��� Dept. phone x�'�- Fax If PROPOSED PROJECT TEAM Caltrans Building and Consolidated State Office Building Project Developer - Economic Development Agency Bond Counsel/Lease Negotiation - Timothy J. Sabo, Sabo & Green, a Professional Corp. Municipal Bond Underwriter - James E. Iverson, Miller & Schroeder Financial, Inc. Bond Trustee - Bank of America, N.T. & S.A., Trust Department Project Administration - MacDonald Properties State of California General Services Representatives Caltrans Representatives Project Architect - To Be Selected Urban Planning Concepts Consultant - To Be Selected Project General Contractor - To Be Selected Civil Engineer - To Be Selected Soils Engineer - To Be Selected Traffic Engineer - To Be Selected Parking Operation Consultant - To Be Selected Parking Garage Design Consultant - To Be Selected Retail Leasing Consultant - To Be Selected Property Management Consultlant - To Be Selected Landscape Architect - To Be Selected Security Equipment Consultant - To Be Selected Elevator Consultant - To Be Selected Energy Management Consultant - To Be Selected Title Insurance Company - To Be Selected Note: The City of San Bernardino reserves the right to replace proposed team members, as appropriate, with equally or better qualified consultants chosen through an equitable and legal process and upon acceptance by the State of California. RQM:pc:projt.-.da Np- July 30, 1993 Mr. James Penman, City Attorney Mr. Dennis Barlow, Sr. Assistant City Attorney Mr. Henry Empeno, Deputy City Attorney San Bernardino City Hall 300 North "D" Street San Bernardino, CA 92418 RE: Demolition Proposal Review No. 90-02 The Frank C. Platt Building Gentlemen: In your capacity as legal counsel for the City of San Bernardino I ask you to give careful consideration to the following: The need for Demolition Proposal No. 90-02 to be reviewed under the CA Environmental Quality Act (CEQA) process is plainly stated by Planning Staff in their official Staff Report. Further, General Plan policy 3.5.7 clearly mandates the applicability of CEQA in this case. Because the proposal to demolish the Platt Building requires CEQA review, all relevant aspects of the CA Environmental Quality Act apply. (Chapter 2.6 of the CA Public Resources Code.) Section 21084.1, added to the CA Public Resources Code reads as follows: A project that may cause a substantial adverse change in the significance of an historical resource is a project that may have a significant effect on the environment. For purposes of this section, an historical resource is a resource listed in, or determined to be eligible for listing in, the California Register of Historical Resources. Historical resources included in a local register of historical resources, as defined in subdivision (k) of Section 5020.1, or deemed significant pursuant to criteria set forth in subdivision (g) of Section 5024.1, are presumed to be historically or culturally significant for purposes of this section, unless the preponderance of the evidence demonstrates that the resource is not historically or culturally significant. The fact that a resource is not listed in, or determined to be eligible for listing in, the California Register of Historical Resources, not included in a local register of historical resources, or not deemed significant pursuant to criteria set forth in subdivision (g) of Section 5024.1 shall not preclude a lead agency from determining whether the resource may be an historical resource for the purposes of this section. (Added by Stats.1992, c. 1075 (A.B.2881), & 8.) Documentation, including the Hatheway & Associates study, "Determination of Eligibility Report for the Platt Building," dated June 1990, commissioned by the City, confirm the Platt Building's eligibility for inclusion on the National Register of Historic Places. CA will accept for its Register of Historical Resources any building qualifying for National Register Status. The Platt Building is historical, as defined in section 21084.1 of the Public Resources Code. Hence, the proposal to demolish the Platt Building is significant in terms of CEQA; therefore, an Environmental Impact Report (EIR) must be prepared. The CEQA process for Demolition Proposal Review No. 90-02 currently is incomplete. Until a full EIR has been prepared for the Platt Demolition Proposal any decision or consideration on the City, including its Economic Development Agency (EDA), based on the assumption that it currently has or will have the right to adversely alter or destroy the Platt Building would be erroneous. The State of CA recognizes the Platt and other qualifying structures as important historical resources. For the City to give consideration at this time to any proposed project which would require the destruction of, or pose a threat to, the Platt Building would be improper and unjustifiable. For the benefit of the citizens of the community and those of the State all those committed to serve, including San Bernardino's Mayor, Common Council, EDA, and City Staff need to be aware of and strive in every manner to uphold the protection and consideration the Platt Building is afforded under the law. Sincerely, d James Wirth 1980 North Sierra Way San Bernardino, CA 92405 Phone (909) 886-1880 ' l 74�-C I PUc e 6 141t 7k ,e c4s In e _ Ccx!�y�c c erg Coav n<OtaW b-a-lo- �' ,-�;,c�te r• Ls 966 / Cot>r-j i K C ITtJ� / �r G` v�el -G�T'�� L���,✓��� 11�" ` - c Oo, Qh-( Coves roc `h a i