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
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Synopsis of Previous Commission/Council/Committe Action (s):
None.
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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
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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
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Commission/Council Notes:
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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
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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
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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
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