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HomeMy WebLinkAbout07-05-2005 MinutesSan Mayor Judith Valles Council Members: CITY OF SAN BERNARDINO Esther Estrada 300 N. "D "Street Susan Longville Gordon McGinnis San Bernardino, CA 92418 Neil Derry Website: www.sbcity.org Chas Kelley Rikke Van Johnson Wendy McCammack MINUTES MAYOR AND COMMON COUNCIL AND COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO JOINT REGULAR MEETING JULY 5, 2005 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 Valles at 1:33 p.m., Tuesday, July 5, 2005, in the Council Chambers of City Hall, 300 North "D" Street, San Bernardino, California. Roll Call Roll call was taken by City Clerk Clark with the following being present: Mayor/ Chairman Valles; Council Members/Commissioners Estrada, McGinnis, Derry, Kelley, Johnson, McCammack; City Attorney Penman, City Clerk Clark, City Administrator Wilson. Absent: Council Member/Commissioner Longville. Council Member/Commissioner Longville Arrived At 3:06 p.m., Council Member/Commissioner Longville arrived at the Council/ Commission meeting. 1. Closed Session Pursuant to Government Code Section(s): A. Conference with legal counsel - existing litigation - pursuant to Government Code Section 54956.9(a): Mohammed Fawzi Hassan, et al. v. City of San Bernardino, et al. - United States District Court Case No. EDCV 05-328 (VAP) SGLx; 07/05/2005 Abdullah, et al. v. City of San Bernardino and San Bernardino Valley Municipal Water District - San Bernardino Superior Court Case No. SCVSS 126706; Adams v. City of San Bernardino and San Bernardino Valley Municipal Water District - San Bernardino Superior Court Case No. SCVSS 126708. B. Conference with legal counsel - anticipated litigation - significant exposure to litigation - pursuant to subdivision (b) (1), (2), (3) (A-F) of Government Code Section 54956.9. 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. Joe Ivan Espinoza City of San Bernardino v. Gregory Alan Goodwin, Jr. D. Closed Session - personnel - pursuant to Government Code Section 54957. E. Closed session with Chief of Police on matters posing a threat to the security of public buildings or threat to the public's right of access to public services or public facilities - pursuant to Government Code Section 54957. F h Conference with labor negotiator - pursuant to Government Code Section 54957.6: Negotiator: Fred Wilson, City Administrator Employee Organization: San Bernardino Confidential Unclassified Employees Management Association and Negotiator: Linn Livingston, Director of Human Resources Employee Organization: San Bernardino City Professional Firefighters Conference with real property negotiator - pursuant to Government Code Section 54956.8: 1. Proper : 247 West Third Street 2 07/05/2005 2. Negotiating Parties: Judith Valles, Mayor, on behalf of the Redevelopment Agency, property owners, and Gerry Newcombe, Deputy Administrative Officer, on behalf of the County of San Bernardino Under Negotiation: Purchase price, terms and conditions Proper That parcel consisting of approximately 67.75 acres identified as Parcel 1-2 at the San Bernardino International Airport, and generally bounded by Harry Sheppard Boulevard, Del Rosa Drive, Paul Villasenor Boulevard, and Memorial Drive Negotiating Parties: Don Rogers on behalf of the Inland Valley Development Agency. David Newsom on behalf of Hillwood/San Bernardino LLC. Bruce Varner on behalf of Stater Bros. Markets. James F. Penman on behalf of the City of San Bernardino Under Negotiation: Terms and conditions Central City North Redevelopment Project Area t L 5. Property: 745 W. 5`h Street APN 0134-093-05 and APN 0134-093-06 Negotiating Parties: Gary Van Osdel, Executive Director, on behalf of the Redevelopment Agency and Patrick A. Abitante Trust, property owner(s) Under Negotiation: Purchase price, terms, and conditions Property: Vacant Land APN 0134-054-24 Negotiating Parties: Gary Van Osdel, Executive Director, on behalf of the Redevelopment Agency and Fook Sung Investment Co. Ltd, property owner(s) Under Negotiation: Purchase price, terms, and conditions Proper 740 W. 4' Street APN 0134-093-43 Negotiating Parties: Gary Van Osdel, Executive Director, on behalf of the Redevelopment Agency and Penhun Ltd./Expo Ltd., property owner(s) 3 07/05/2005 Under Negotiation: Purchase price, terms, and conditions City Attorney Penman announced that the following additional items would be discussed in closed session: Agenda Item Nos. 25, 26, 29, 30, and S2; Under Agenda Item No. 1G, Conference with real property negotiator: Property: Missionary Baptist Church 631 West G Street Negotiating Parties: Gary Van Osdel, Executive Director, on behalf of the Redevelopment Agency, and Bill Lemann on behalf of Missionary Baptist Church Under Negotiation: Purchase price, terms, and conditions Reading of Resolutions & Ordinances Deputy City Clerk Hartzel read into the record the titles of all the resolutions and ordinances on the regular and supplemental agendas of the Mayor and Common Council and Community Development Commission. Invocation/Pledge of Allegiance The invocation was given by Father Patricio Guillen of Libreria del Pueblo, followed by the pledge of allegiance, led by Council Member/Commissioner Estrada. 2. Appointment — Margaret Hill — Board of Library Trustees — Mayor Valles Council Member/Commissioner McCammack made a motion, seconded by Council Member/Commissioner McGinnis, that the appointment of Margaret Hill to the Board of Library Trustees, as requested by Mayor Valles, be approved. The motion carried by the following vote: Ayes: Council Members/ Commissioners Estrada, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: Council Member/Commissioner Longville. 3. Presentations & Proclamations On behalf of Rotary International, Mr. Chehab El-Awar, Assistant Governor for Rotary District 5330, presented Mayor Valles with a plaque honoring her for her professional excellence. 4 07/05/2005 Millicent Price, Scholarship Committee Chair for the San Bernardino Confidential/Management Association presented $1,000 scholarships to the following children of City employees: • Kathleen M. Beaumont, daughter of William Beaumont, who works for the City's Fire Department, and his wife Melinda; and • Kenneth Neil Thomsen, son of Neil Thomsen, who works in the City's Water Department, and his wife Irene, who works in the City's Library. June Durr, Public Information Officer, Mayor's Office, announced the winners of the first annual Part-time Incentive Awards sponsored by the San Bernardino Confidential/Management Association, which were awarded as a way of recognizing the contributions made by the City's part-time employees and to give them an incentive to continue their education. 4. Announcements Announcements were made by the Mayor, members of the Common Council, elected officials, and a representative of the Chamber of Commerce regarding various civic and community events and activities. 5. Waive Full Reading of Resolutions and Ordinances Council Member/Commissioner Longville made a motion, seconded by Council Member/Commissioner McGinnis, that full reading of the resolutions and ordinances on the regular and supplemental agendas of the Mayor and Common Council/Community Development Commission, be waived. The motion carried by the following vote: Ayes: Council Members/ Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. 6. Council Minutes Council Member/Commissioner Longville made a motion, seconded by Council Member/Commissioner McGinnis, that the minutes of the following meeting of the Mayor and Common Council/Community Development Commission of the City of San Bernardino be approved as submitted in typewritten form: June 6, 2005. The motion carried by the following vote: Ayes: Council Members/ Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. 5 07/05/2005 7. Claims and Payroll Council Member/Commissioner Longville made a motion, seconded by Council Member/Commissioner McGinnis, that the claims and payroll and the authorization to issue warrants as listed on the memorandum dated June 28, 2005, from Barbara Pachon, Director of Finance, be approved. The motion carried by the following vote: Ayes: Council Members/ Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. 8. Personnel Actions Council Member/Commissioner Longville made a motion, seconded by Council Member/Commissioner McGinnis, that the personnel actions, as submitted by the Chief Examiner, dated June 29, 2005 in accordance with Civil Service rules and Personnel policies adopted by the Mayor and Common Council of the City of San Bernardino, be approved and ratified. The motion carried by the following vote: Ayes: Council Members/ Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. 9. RES. 2005-227 - Resolution of the Mayor and Common Council of the City of San Bernardino authorizing the Mayor to execute a Master Services Memorandum of Understanding with the Water Department for provision of City services for Fiscal Year 2005/2006. Council Member/Commissioner Longville made a motion, seconded by Council Member/Commissioner McGinnis, that said resolution be adopted. Resolution No. 2005-227 was adopted by the following vote: Ayes: Council Members/Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. 10. RES. 2005-228 - Resolution of the Mayor and Common Council of the City of San Bernardino approving the destruction of certain records no longer required to be maintained by the San Bernardino City Attorney's Office. Council Member/Commissioner Longville made a motion, seconded by Council Member/Commissioner McGinnis, that said resolution be adopted. Resolution No. 2005-228 was adopted by the following vote: Ayes: Council Members/Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. 6 07/05/2005 11. Review and take action regarding the need for continuing in effect the local emergency caused by the Old Waterman Canyon Fire pursuant to Government Code Section 8630 (c)(1) Note: No backup materials were distributed. Council Member/Commissioner Longville made a motion, seconded by Council Member/Commissioner McGinnis, that the Mayor and Common Council confirm the need for continuing in effect the local emergency caused by the Old Waterman Canyon Fire. The motion carried by the following vote: Ayes: Council Members/ Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. 12. Item Deleted 13. ORD. MC-1210 - An Ordinance of the City of San Bernardino modifying Chapter 19.06 (Commercial Districts), Section 19.06.030(2)(G)(4) of the San Bernardino Municipal Code (Development Code) related to locational requirements for service stations with ancillary convenience stores. FINAL READING Council Member/Commissioner Longville made a motion, seconded by Council Member/Commissioner McGinnis, that said ordinance be adopted. Ordinance No. MC-1210 was adopted by the following vote: Ayes: Council Members/Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. 14. ORD. MC-1211 - An Ordinance of the City of San Bernardino amending Chapter 19.22 (Sign Regulations) to add Section 19.22.080(7) related to off - site electronic message center signs. FINAL READING Council Member/Commissioner Longville made a motion, seconded by Council Member/Commissioner McGinnis, that said ordinance be adopted. Ordinance No. MC-1211 was adopted by the following vote: Ayes: Council Members/Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. 15. RES. 2005-234 - Resolution of the City of San Bernardino amending Resolution No. 655 entitled, in part, "A Resolution... designating certain streets, or portions thereof as through highways..." and establishing a four- way stop at the intersection of Little League Drive and Belmont Avenue. 7 07/05/2005 Council Member/Commissioner Kelley made a motion, seconded by Council Member/Commissioner Johnson, that said resolution be adopted. Resolution No. 2005-234 was adopted by the following vote: Ayes: Council Members/Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. 16. RES. 2005-229 - Resolution of the Mayor and Common Council of the City of San Bernardino authorizing execution of a Reimbursement Agreement with the City of Riverside for street improvements to Waterman Avenue. Council Member/Commissioner Longville made a motion, seconded by Council Member/Commissioner McGinnis, that said resolution be adopted. Resolution No. 2005-229 was adopted by the following vote: Ayes: Council Members/Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. 17. RES. 2005-230 - Resolution of the City of San Bernardino approving a Side Letter to Resolution No. 2001-94, establishing a compensation and benefits plan for the Management, Confidential and Unclassified Employees, amending Section 2, I - PERS and adding a new section to Section 2, X - Holidays, for Police Safety Management employees. Council Member/Commissioner Longville made a motion, seconded by Council Member/Commissioner McGinnis, that said resolution be adopted; and that the Director of Finance be authorized to amend the FY 2005-06 budget and transfer funds from Account No. 001-092-5011 to various Police Division salary benefit accounts. The motion carried and Resolution No. 2005-230 was adopted by the following vote: Ayes: Council Members/Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. 18. RES. 2005-231 - Resolution of the Mayor and Common Council of the City of San Bernardino authorizing the Mayor to execute a Grant Agreement with the County of San Bernardino concerning the use of Indian Gaming Special Distribution Funds for the San Bernardino Police Department. Council Member/Commissioner Longville made a motion, seconded by Council Member/Commissioner McGinnis, that said resolution be adopted; and that the Director of Finance be authorized to amend the FY 2005-06 budget for the Police Department by increasing the revenue budget in Account No. 001-213- 5011/5029 by $698,800 and in Account No. 001-213-5111 by $1,200 and increasing the expenditure budget in Account No. 001-213-5011/5029 by 8 07/05/2005 $698,800 for six (6) police officers (P-l's), one (1) police sergeant (P-3), and increasing the expenditure budget in Account No. 001-213-5111 by $1,200 for grant required signs. The motion carried and Resolution No. 2005-231 was adopted by the following vote: Ayes: Council Members/Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. 19. RES. 2005-232 - Resolution of the City of San Bernardino ratifying the submittal of a grant application and authorizing the Police Department to administer the FY 2005 Juvenile Accountability Block Grant (JABG) funds in accordance with the Grant Expenditure Plan. Council Member/Commissioner Longville made a motion, seconded by Council Member/Commissioner McGinnis, that said resolution be adopted. Resolution No. 2005-232 was adopted by the following vote: Ayes: Council Members/Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. 20. RES. 2005-233 - A Resolution of the Mayor and Common Council of the City of San Bernardino, successor to the South San Bernardino County Water District, assessing properties within the previous District boundaries in the amount of $16,587.50 for the Fiscal Year 2005/2006. Council Member/Commissioner Longville made a motion, seconded by Council Member/Commissioner McGinnis, that said resolution be adopted. Resolution No. 2005-233 was adopted by the following vote: Ayes: Council Members/Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. 21. Oral bids & award of bid - sale of City Water Department property - southeast corner of Mac Kay Drive and "D" Street Mayor/Chairman Valles opened the hearing. City Administrator Wilson provided an overview of the staff report, noting that fair market value for the property had been established at $130,000. He advised that only one bid had been received from Mapco/David E. Mlynarski in the amount of $160,000. No oral bids/public comments were received. 9 07/05/2005 Council Member/Commissioner Estrada made a motion, seconded by Council Member/Commissioner McGinnis, that the hearing accepting oral bids for the sale of City Water Department property, as per Bid Specification No. 15.05- 241, be closed; and that the bid amount of $160,000 (One Hundred Sixty Thousand Dollars) be awarded to Mapco/David E. Mlynarski, (APN 0141-311- 21). The motion carried by the following vote: Ayes: Council Members/ Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. 22. Oral bids & award of bid - sale of City Water Department property - northeast corner of Pine & Belmont Avenues & southeast corner of Ohio & Pine Avenues Mayor/Chairman Valles opened the hearing. City Administrator Wilson provided an overview of the staff report, noting that fair market value of Parcel 1 and Parcel 2 had been established at $970,000. He advised that two bids had been received —Bid No. 1 from J. R. Watson & Associates in the amount of $1 million, and Bid No. 2 from G.F.R. Enterprises, Inc. in the amount of $970,000. Mr. Wilson advised that a memo dated July 5, 2005, from Charlie Shumaker of Watson & Associates had been distributed to the Council wherein the developer had outlined a proposal to increase their bid to $1,275,000. Per Resolution 2000-279, City Clerk Clark administered an oath to Mr. Shumaker that he would provide true and honest testimony. Charlie Shumaker, J. R. Watson & Associates, 101 Main Street, Seal Beach, CA, stated that he was basically attending the meeting in order for Watson & Associates to outbid itself. He stated that Watson & Associates had decided that the parcel in question really needed a public park, and they wanted to increase their bid by the amount it would cost them to put in a park. Mr. Shumaker stated that the park would be approximately 2.5 acres containing trees and shrubs, a tot lot, and decomposed granite trails connecting to the trails system that goes from Cal State San Bernardino to the Verdemont area. City Attorney Penman thanked Mr. Shumaker and Watson & Associates for their added financial support of the park and commended Council Member/ Commissioner Kelley for his discussions with the developer regarding the additional park land. 10 07/05/2005 Council Member/Commissioner Kelley made a motion, seconded by Council Member/Commissioner Derry, that the hearing accepting oral bids for the sale of City and Water Department property, as per Bid Specification No. 15.05- 242, be closed; and that the oral bid amount of $1,275,000 be awarded to J. R. Watson & Associates Development Company for parcels 1 and 2 (APN 0261- 101-15, 16 & 17). The motion carried by the following vote: Ayes: Council Members/ Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. 23. Public hearing - resolution ordering vacation - proposed vacation of the east/west street lying between "D" Street & Stoddard Avenue Resolution of the City of San Bernardino ordering the vacation of the east/west street lying between "D" Street and Stoddard Avenue (Plan No. 11416A). City Attorney Penman advised that due to a problem with the service of notice the hearing would need to be continued to July 18. He apologized to those individuals who came to speak on the matter and asked them to come back with their comments in two weeks. Council Member/Commissioner Estrada made a motion, seconded by Council Member/Commissioner McGinnis, that the matter be continued to the Council/ Commission meeting of July 18, 2005. The motion carried by the following vote: Ayes: Council Members/ Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. 24. Public hearing - resolution ordering vacation - proposed vacation of portions of 19' Street, McKinley Street and various alleys south of 20' Street, east of Guthrie Street RES. 2005-235 - Resolution of the City of San Bernardino ordering the vacation of portions of 19`h Street, McKinley Street and various alleys south of 20th Street, east of Guthrie Street (Plan No. 11409). Mayor/Chairman Valles opened the hearing. City Administrator Wilson advised that this was the final step in the process. No public comments were received. 11 07/05/2005 Council Member/Commissioner McGinnis made a motion, seconded by Council Member/Commissioner Johnson, that the hearing be closed; that the Findings of Fact as set forth in the staff report dated June 29, 2005, from James Funk, Director of Development Services, as to why portions of 19' Street, McKinley Street and various alleys south of 20' Street, east of Guthrie Street, are no longer necessary for public street purposes, be adopted; and that said resolution be adopted. The motion carried and Resolution No. 2005-235 was adopted by the following vote: Ayes: Council Members/Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. 25. Appeal hearing - termination of Tow Services Agreement between the City of San Bernardino and Wilson Towing (Continued from June 20, 2005) (See Companion Item No. 26) The hearing remained open. Senior Assistant City Attorney Simmons stated that many of his comments were set forth in the staff report, but to him this was a very clear-cut prima facie case. He stated that the City has a resolution (Resolution 1999-86) which establishes criteria for companies to provide tow services for the City of San Bernardino and contracts with six towing companies. He advised that the resolution and the contracts incorporate the California Highway Patrol (CHP) Tow Service Agreement; and that both the 2004-2005 and the 2005-2006 CHP Tow Service Agreements contain a paragraph which states: "The sale or transfer of the controlling interest in a company shall immediately terminate the TSA. A new owner may apply for a rotation tow listing at any time during the remainder of the current TSA term regardless of the Area's enrollment period." Mr. Simmons also advised that the police ad hoc committee is currently working on the criteria for selecting tow carriers for the City's tow rotation. Mr. Simmons stated that both the Police Department and the City Attorney's office had been contacted and informed that two tow companies, Wilson and Big Z, had changed ownership. He stated that according to the records of the City Clerk's office, it has been approximately one year since Wilson Towing changed ownership. These records (shown as Exhibit 8 in the backup materials) show the Account Details Report of Wilson Towing in two parts. The first record shows the contact name as John Vach, Jr.; and the notes toward the bottom of the page say, "Change of ownership of over 50% of the company. Class remains the same, etc." He stated that on the second page, the Account Details Report shows that Rick Becker was the owner of Wilson Towing prior to Mr. Vach; and at the bottom 12 07/05/2005 of that page, under Notes, it says, "Closed per phone call, sold to new owner John & Lilliana Vach on 6/1/04. Instructed previous owner to advise new owner to come in and apply for zone and business license;" and that is exactly what Mr. Vach did. Mr. Simmons reiterated that the contract provides for immediate termination of the contract upon change of ownership, because even the CHP Agreement contains an experience requirement. He advised that while the new owners are free to apply when there are openings, other tow companies can apply as well. Therefore, City staff sent a letter to Wilson Towing indicating that pursuant to the CHP Tow Service Agreement and their contract with the City, that they were terminated due to the change in ownership. Subsequently, through their attorney, Wilson Towing sent a letter setting forth various parts of the agreement, indicating that they should have received 30 days notice of the termination. Due to the fact that there is some discrepancy between the City contract and the CHP Tow Services Agreement, the City Attorney's office set the matter for hearing and granted the 30 days notice that they requested. He stated that if the Council denies Wilson's appeal they would be terminated from the City's towing rotation effective July 10, 2005. Mr. Simmons advised that the language is the same in both the City's resolution and the City's Tow Service Agreement —"Tow carrier shall also comply with the most recent California Highway Patrol Tow Service Agreement. Where provisions of the Agreement and the CHP Tow Service Agreement are in conflict, the provisions of this agreement shall prevail." He stated that in order to determine whether there was a change in ownership, we go to the City Municipal Code, specifically, Section 5.04.026, subsection B, "In the event a permittee or certificate holder is a corporation, a new permit or certificate shall be required when there is an actual change in control or when ownership of more than 50 percent of the voting stock of the permittee or certificate holder is acquired by a person or group of persons acting in concert, none of whom already own 50 percent or more of the voting stock, singly or collectively." Mr. Simmons reiterated that the records of the City Clerk indicate that the change in ownership did occur, so the Police Department, after discussing it with the City Attorney's office and the police ad hoc committee, sent the termination letter to Wilson Towing indicating that they were terminated, originally, as of early June; then the City provided the 30 days notice that Wilson Towing requested, so the termination will be effective July 10, 2005, unless the Mayor and Council uphold their appeal. 13 07/05/2005 City Attorney Penman advised that what the Council was deciding on today was whether or not to uphold the decision made by the Police Department to terminate Wilson Towing from the tow rotation list. Mayor Valles pointed out that there was a choice of three recommended motions on the agenda relative to this matter; and Mr. Penman reviewed the content of the motions with the Council. Michael McGovern, attorney associated with Wilson Towing's attorney, Patrick Ragan, asked the Council for permission to address Agenda Item Nos. 25 and 26 at the same time, because it was the same issue. Mr. Penman inquired whether Mr. McGovern was asking the City to combine, in effect, both hearings, Agenda Item Nos. 25 and 26; and Mr. McGovern replied in the affirmative. Senior Assistant City Attorney Simmons stated that the evidence for Big Z Towing was slightly different from that of Wilson Towing. It was the consensus of the Mayor and Council to take the items separately. Mr. McGovern stated that it was important for the Council to know that Wilson Towing is one of the oldest towing companies in the city and has been in business for over 50 years; and for that period of time has been an official service provider for the City Police Department, and has recently been a provider pursuant to the contract that was referenced by Mr. Simmons —the contract approved by this Council. He advised that Wilson Towing is also an official service provider for the California Highway Patrol and for the County Sheriff's Department. He stated that significantly, Wilson Towing also provided tow service for the City's Code Enforcement Division, which rids the City of a lot of junk cars, which they do at a substantially discounted fee. He pointed out that throughout the 50 years that Wilson Towing has been in business in the city, its ownership has changed hands many times. In fact, it changed hands most recently last summer, and Wilson Towing does not dispute the fact that there was a change in ownership. He advised that the new owner was John Vach, a police officer who has acquired this towing company as a second career, bringing a different perspective to the towing industry and a sense of professionalism that has perhaps not been seen in the towing industry. Mr. McGovern pointed out that since the change of ownership last summer, Wilson Towing has continued to provide excellent service for the Police Department —he did not think there was any dispute about that, and he had not heard anything to the effect that their quality of service has deteriorated since 14 07/05/2005 the change of ownership. In fact, they have endeavored to improve the service that the company has provided, so that is not an issue. He added that it's not an issue about response time, it's not an issue about quality of employees, it's not an issue about equipment failures, safety issues, etc. As the City Attorney noted, the only issue and the only problem that has been raised is the fact that there has been a change of ownership —that is all. Mr. McGovern stated that he had had an opportunity to review the staff report that was provided to Mr. Ragan by Mr. Penman; and he respectfully disagreed with the critical sentence in that report. He noted that on the front page of the report in the third paragraph, it says that, "Resolution 1999-86 incorporated the terms of the California Highway Patrol Tow Services Agreement (TSA)." Mr. McGovern stated, however, that that statement was incorrect. According to Mr. McGovern, the contract does not incorporate the separate Highway Patrol Agreement —it does not do that. According to the language in Exhibit 4, which is the contract attachment to Resolution 1999-86, the language is the same in the contract and the resolution and was quoted earlier, "The towing carrier shall also comply with the most recent California Highway Patrol Tow Service Agreement." He stated that it is a substantially different matter to say that something must comply with the Tow Services Agreement than to say that that agreement is incorporated in the City's agreement. He stated that all the City has asked the company to do is be in compliance with the Highway Patrol rules and regulations; and that being the case, if a company is on the Highway Patrol rotation list, then they are in compliance. He stated that Wilson Towing remains to this day on the Highway Patrol's tow list, and submitted a copy of a letter dated June 24, 2005, certifying Wilson Towing as a member of the California Highway Patrol tow rotation list. Mr. McGovern reiterated that Wilson Towing remains a qualified and certified participant on the California Highway Patrol rotation tow list. He pointed out that what the City contract and what the resolution provides is that they be in compliance —and there is no question that they are in compliance and they still participate. He acknowledged that there was a change of ownership. However, under the California Highway Patrol Tow Services Agreement, if there is a change of ownership, what the towing company does is they go to the California Highway Patrol, tell them that there has been a change of ownership, and seek approval of the new owners. He stated that that is precisely what happened here. They continued working for the California Highway Patrol and remain in compliance with the California Highway Patrol Tow Services Agreement. That being the 15 07/05/2005 case, then they are in compliance with the City's contract and with the City's resolution. Mr. McGovern advised that it is not an absolute —the California Highway Patrol contract is not absolute. It does not say, if you change ownership you are terminated —that is not what it says. It says you are terminated, but you can come in, show your new ownership, demonstrate to us that you are going to continue to provide the service, and we will continue with you. That's exactly what happened. They are still working for the Highway Patrol, so they are in compliance. So the language in the staff report where it says that the contract was "incorporated" is incorrect. All it says is that they must be in compliance, and they are. Mr. McGovern stated that recently it was brought to his attention that the letter from the City Attorney's office may have been driven by some pending litigation by another towing company which has been filed in federal court against the City. He added that Wilson Towing is a defendant in that same lawsuit —that they have been sued, too, as conspirators with the City to foreclose this other company from being admitted to the tow list. He stated that one of the reasons that Wilson Towing retained his services, is that he somewhat specializes in representing towing companies, and he has dealt with a lot of litigation involving towing companies and municipal contracts. One of them, which he wanted to bring to the Council's attention, was a case that he represented —a towing company in Santa Ana who raised essentially the same argument that Armada Towing is raising against the City in this current lawsuit. Basically, the same complaint —that he had been shut out from the city's rotation towing list without any justification; and he complained that other towing companies weren't in compliance with the agreement and he should be let on, and he tried to force the city to put him on the rotation towing list. Mr. McGovern advised that the complainant lost that case. The 9' Circuit Court of Appeals said that he couldn't make a claim if he wasn't on the tow list to start with —that he had no claim against the city. He stated that he had reviewed the lawsuit that's been filed against the towing companies in the City of San Bernardino, and he found it to be without merit; and he anticipates filing a motion to dismiss for failure to state a cause of action and suspected that the City would do so also. He stated that he did not think that the lawsuit filed against the City should serve as a basis for this action that has been taken against Wilson Towing. He stated that he didn't think that case had any merit whatsoever; and he believed the City has broad discretion to choose the quality towing companies that it wishes to serve the public and serve the Police Department. 16 07/05/2005 Mr. McGovern summarized his comments by stating that first, there has been no violation of the contract. Wilson Towing remains in compliance with the Highway Patrol rules and regulations. And secondly, even if they weren't in compliance, the City has the discretion to overlook it under the court of appeals case he just cited. He added that certainly the City would want to overlook it in dealing with a company like Wilson Towing, who has been serving the City for 50 years. He stated that if it's a decision between a quality company like Wilson Towing and an unknown company like Armada, he would certainly suggest that the City should stay with Wilson Towing. He stated he was not sure of the language of the motions, but the request on the part of Wilson Towing would be to overrule or reverse the suspension that is pending against them now. Pursuant to Resolution 2000-279, City Clerk Clark administered an oath to Mr. John Vach that he would provide true and honest testimony. John Vach, controlling member of Wilson Towing, LLC, stated he was here to emphasize how important it is to Wilson Towing to be reinstated as a permanent member of the police tow rotation. He stated that when he assumed control of this company, approximately one year ago, he analyzed their business system and came to the realization that they needed to improve their tow service to the City of San Bernardino contract —that with 11 years of experience as a law enforcement officer, he saw the need to expedite their response times and level of service to the San Bernardino Police Department. Therefore, he made a critical decision to eliminate some of the smaller tow memberships that they belonged to, such as Good Sam's and Traveler's Tow Club, in order to enhance their service to the Police Department. As a result, their service increased and their response times went way down, allowing officers to leave the tow vehicles much, much quicker. He stated that this is important because uniformed presence and observation activities by law enforcement officers greatly reduces crime in the area. Mr. Vach emphasized that by reducing their business with other tow memberships, they generated 75-80 percent of their revenue servicing the police contract. He pointed out that the loss of membership to the police tow rotation would effectively eliminate his company from practicing business in the City of San Bernardino —a business that has been serving this community for over 50 years. He stated that they are the second oldest tow company in the city of San Bernardino, that one of the former owners still works for the company as well as a majority of the employees, and the manager has been employed with the company for over 15 years, serving through three owners. 17 07/05/2005 He stated that Wilson Towing would cease to exist because they took the steps to enhance the service they provide to the Police Department. He stated that it was also important to note that a skilled tow company, with experience assisting law enforcement officials, not only reduces crime, but City liability when towed vehicle owners do not file claims against the City. He stated that he could not tell how many times he has limited the risk of liability for all parties, the City and his company as well, due to his experience in law enforcement towing policy and procedure. Mr. Vach stated that a key element to Wilson Towing's service is having experienced professional personnel that are continually trained and held to a high standard of quality to continuous service. And that was the other reason why he was before the Council today —that in addition to the risk of losing his business, he was extremely concerned about the tow drivers, dispatchers, mechanics, and the managers that will all lose their jobs and their livelihoods. He stated that several of these individuals have been with this company for many, many years; and this bothers him greatly because they are depending on him and the police contract for employment. He pointed out that Wilson Towing also donates revenue to after -school programs and youth sports, and encourages after -school youth activities that prevent wayward youth from gang affiliation and criminal behavior. He stated that during the San Bernardino fires their trucks were involved in pulling vehicles out of the residences and streets in the area; and this was done free of charge —they volunteered their trucks and all their resources, almost losing two vehicles in the process. He stated that in addition to the San Bernardino fires, their company has been involved with the recent flooding that has occurred in the San Bernardino area as a result of the heavy rainfall season. Again, they have used their winches to retrieve vehicles and offered any service they could to prevent vehicles from being swallowed up. In fact, they suffered severe damage to their vehicles, but again, it was for the community —it wasn't just about being an owner in the city and taking a profit —it's also about what you do for others in the community, and to him it goes hand in hand. Mr. Vach concluded by reiterating that Wilson Towing has provided service for five decades and has been part of the fabric of life here in San Bernardino. He stated that the company represents the best San Bernardino has to offer, with employees who have been with them through three generations of management —a company that continues to employ and support the residents of this great city, and in times of crisis like the San Bernardino fire and flooding, they will continue to respond with integrity, honor, and community service. Council Member/Commissioner McCammack stated that Mr. McGovern had brought an issue up about the CHP's Tow Service Agreement in referencing the 18 07/05/2005 City's Tow Service Agreement, and she noticed on page 15 of 33 in the Highway Patrol's TSA, item 12C, "The sale or transfer of the controlling interest in a company shall immediately terminate the Tow Services Agreement. A new owner may apply for a rotation tow listing at any time during the remainder of the current TSA term, regardless of the Area's enrollment period." She asked City counsel how that inter -plays with the agreement that Wilson has signed with the City. Senior Assistant City Attorney Simmons stated that his reading of the City's agreement was that the City was incorporating that section of the CHP Agreement into its own agreement, and once the change in ownership occurred it not only terminated their relationship with the CHP, but it terminated their relationship with the City of San Bernardino. The way the City has been interpreting its contract, Wilson Towing could re -apply, but others could apply as well. Council Member/Commissioner Estrada asked whether it would be fair to say that it all boils down to two towing companies who changed ownership and the City was not notified; consequently, over this period of time they have been operating with an agreement that should have been null and void, and a new rotation, if it is going to happen, should have been performed. It does not seem to be anything to do with the quality of service that the company is providing. Mr. Simmons answered in the affirmative. Council Member/Commissioner Estrada noted that the ad hoc committee has not finalized the issue of how tow service companies will be selected in the City of San Bernardino, yet the City has terminated the agreements with Wilson Towing and Big Z, effective July 10. She questioned what this would do to the overall police need in terms of tow service. City Attorney Penman stated that that was an inappropriate consideration —that the Council was limited to making a decision based on the appeal. He explained that the appeal, according to the evidence presented, is a claim that the City's interpretation is incorrect —that the City's agreement does not require compliance with the Highway Patrol Agreement. He stated that Mr. McGovern had focused on the word "incorporates." He stated the way the agreement reads, on page 5, item 15, "Towing Carrier shall also comply with the most recent California Highway Patrol tow service agreement. Where provisions of this Agreement and the CHP tow service agreement shall be found to be in conflict, the provisions of this Agreement shall prevail." Also, the CHP tow service agreement, on page 15 of 33, Item 12C reads, "The sale or transfer of the controlling interest in a company shall immediately 19 07/05/2005 terminate the TSA. A new owner may apply for a rotation tow listing at any time during the remainder of the current TSA term, regardless of the Area's enrollment period." Mr. Penman stated that what the Council was focusing on is whether or not the City's agreement requires that. He then asked several questions of Mr. Simmons, basically recapping statements Mr. Simmons had already made relative to whether Wilson Towing had notified the City of San Bernardino when the ownership change occurred, and more specifically, whether they had notified the Police Department; how the Police Department became aware of the change in ownership; and once the Police Department found out about the change in ownership, what actions were then taken. Council Member/Commissioner McGinnis stated that it sounded to him, from the reading of it all, that there was really no conflict. The Highway Patrol accepted Wilson Towing again when they went and talked to them, and then (he thought) they continued to meet the CHP's criteria. City Attorney Penman indicated that this was not necessarily correct —that the Council had not made a decision to do that, that no one knows what the Council is going to do —they might decide to draw lots —no decision had been made. He stated that the pertinent information was that "The sale or transfer of the controlling interest in a company shall immediately terminate the TSA." The issue is whether or not the ownership changed hands, and whether or not by changing hands that automatically drops them off the tow list pursuant to the City's Agreement and the Highway Patrol Tow Service Agreement. Attorney McGovern stated that it may sound like splitting hairs, but it is the life of a company that is at stake here. He pointed out that the City Attorney keeps referring to provisions in the California Highway Patrol contract, but he (Mr. McGovern) thought what the City should be focused on is their own contract. He stated that the City's contract, which is what we are here about, says that the tow operator shall be in compliance with the California Highway Patrol contract —and they are. He noted that City counsel kept focusing the Council's attention to a contract that is not the City's contract. And the City's contract does not incorporate the Highway Patrol Contract. If it did, the City's contract must take this language right out of the Highway Patrol Contract and put it in the City's contract. But that's not what the City's contract says. The City's contract says, "You shall comply with the Highway Patrol." And they do. He stated that he thought the City should focus on its own contract because that's the language that's critical, the language in the City's contract —not the Highway Patrol contract. City Attorney Penman stated that he wanted Mr. Simmons to again respond to that. 20 07/05/2005 Mayor/Chairman Valles asked Mr. Simmons to read to the Mayor and Council the language exactly as it reads in the City's contract. Mr. Simmons answered that it seems, for the City's purposes —that reading it the way opposing counsel argues, and he understood his argument —but it seems that he's somewhat reading the clause out of it and it has no meaning to the City. He stated that opposing counsel was arguing that the City's contract, so long as the towing companies keep renewing with the CHP, that that sort of automatically renews the contract with the City and that the City, in effect, ignores the change in ownership. He stated that maybe the technical word is not "incorporate," but he believes the intent is that the City incorporated the CHP language from their tow services agreement and it applies to the City's contract. Council Member/Commissioner Kelley made a motion, seconded by Council Member/Commissioner Estrada, that the hearing be closed. The motion carried by the following vote: Ayes: Council Members/ Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. Council Member/Commissioner McCammack made a motion, seconded by Council Member/Commissioner Kelley, that the hearing be closed; and that the Mayor and Common Council uphold the termination by the Police Department, based upon the back-up information submitted and any additional evidence presented at the hearing, and direct the City Attorney to prepare findings and conclusions. The motion carried by the following vote: Ayes: Council Members/ Commissioners Estrada, Longville, Derry, Kelley, Johnson, McCammack. Nays: Council Member/Commissioner McGinnis. Absent: None. (Note: Later in the meeting the matter was reconsidered and the following action was taken.) Council Member/Commissioner McGinnis made a motion, seconded by Council Member/Commissioner Estrada, that Agenda Item No. 25 be reconsidered. The motion carried by the following vote: Ayes: Council Members/ Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. Council Member/Commissioner McGinnis made a motion, seconded by Council Member/Commissioner Estrada, that the Mayor and Common Council uphold the appeal of the applicant, in part, based upon the back-up information submitted and any additional evidence presented at the hearing, and direct the 21 07/05/2005 City Attorney's Office to prepare findings and conclusions consistent with its decision; and that Wilson Towing would remain on the tow rotation list until the ad hoc committee completes its findings and establishes its criteria. The motion carried by the following vote: Ayes: Council Members/ Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. 26. Appeal hearing regarding the termination of the Tow Services Agreement between the City of San Bernardino and Big Z Towing Company (Continued from June 20, 2005) (See Companion Item No. 25) The hearing remained open. Senior Assistant City Attorney Simmons advised that his comments directed to Wilson Towing were essentially the same as applies to Big Z Auto Works. As in the Wilson Towing case, the City heard about the change in ownership through someone reporting it to the Police Department; however, in this case, there was no change in ownership filed with the City Clerk. The Police Department went out and spoke to Big Z; and in turn, Mr. Simmons received a telephone call on April 25 from Mr. Desjardins, who is the new owner of Big Z Auto Works and owns a controlling interest. According to Mr. Simmons, in effect, Mr. Desjardins said, "Yes, I am the new owner," and they talked about it, and Mr. Simmons told him what the City had to do in light of the agreement and the City's interpretation of the agreement. From that point on, everything took place just like with Wilson Towing. A letter was sent terminating the company and, again, Mr. Ragan sent a letter requesting the 30-day notice provision. The City Attorney's office recommended that the matter be handled by appeal to the Mayor and Council and the termination would be effective July 10, 2005, just like with Wilson Towing. Again, the only difference is that the evidence of change of ownership was Mr. Desjardins statement that he was the new owner. Mr. McGovern stated that there were some additional points he wanted to make with regard to Big Z Towing. First of all, it's the oldest towing company in the city, having been founded in 1924; and has been providing service to the city for over 80 years. Another significant factor with regard to Big Z, that perhaps wasn't the same with Wilson, is the fact that the ownership of this business has changed several times. It changed last summer, which is the issue today. It also changed in the late 1990's under the same ordinance, under the same contract, and no action was taken by this Council when there was a change of ownership then. Therefore, the question is, why is it being taken now? Same company, same situation —change of ownership. And again, there are absolutely no safety issues involved. 22 07/05/2005 Mr. McGovern added that these two companies are the stellar performers for the Police Department and for the citizens of this city; and what we are talking about is a paper shuffle. He stated that all the Highway Patrol wants to know is, who is the new owner and are they going to comply with the agreement. He advised that Big Z is in compliance with the Highway Patrol and distributed copies of a letter dated June 24, 2005, from the CHP to Big Z Auto Works which stated that Big Z had been approved to participate in the 2005/2006 tow rotation for the California Highway Patrol San Bernardino Area. Attorney McGovern pointed out that like Wilson Towing, Big Z is in compliance with the California Highway Patrol contract, and that is what the City's contract calls for —compliance with the California Highway Patrol contract. He stated that the provision dealing with termination upon change of ownership does not exist in the City's contract —it's not in there. The City's contract just requires compliance, and they are in compliance. He stated that he really didn't know what more he could add, except that this is not a safety issue and it's not an issue of response —the Police Department is happy with these companies. Mr. McGovern stated that there was notification at some point to the Clerk's office about the change in ownership. These business owners thought that by complying with the CHP contract, which is what the City contract tells them to do, they were under the assumption that by doing what they were supposed to do and complying with the California Highway Patrol contract they were thereby in compliance with the City contract. In good faith, that's what they did. He stated that there is nothing in the contract that says they've got to come to the City and tell the City that they've changed ownership. It doesn't say that in the contract anywhere. All it says is that they have to be in compliance with the CHP. And according to the letters he provided the Council with copies of today, they did exactly what they thought they were supposed to do under the City's agreement. Mr. McGovern stated that this is very inequitable; that these companies are going to go out of business, and what's happening is very, very inequitable. Mr. Simmons stated that there was no difference between the two cases, other than the evidence of change in ownership. He stated that Mr. McGovern has admitted the change of ownership and he saw no difference. Mayor/Chairman Valles stated that she wanted Wilson Towing to understand that whatever action is taken on the Big Z appeal, certainly Wilson Towing has the opportunity to apply again to be on the rotation list. She thought they needed to know that —it is an opportunity that will be afforded to them. She stated that she could not speak to Council's of the past, in the 90's, why this 23 07/05/2005 action was not taken, but she knew that this Council now wants to adhere very closely to the rules and regulations that it has adopted. City Attorney Penman noted that Mr. Simmons had indicated that Big Z did not notify the Police Department or the City Clerk's office when they changed ownership last summer, and asked Mr. Simmons if that was correct. Mr. Simmons replied that that is what the records show. He stated that Exhibit 8 just lists the contact name as Big Z Auto Works —there was no name of the individual owning the controlling interest —whereas on the Account Details Report of Wilson Towing shows the two different names and actual change in ownership. City Attorney Penman asked Mr. Simmons if he was aware of any evidence that in 1990, that as Big Z's attorney just indicated, that they changed ownership and the City did not do anything. He asked Mr. Simmons whether the appellant had given him any evidence to show that they reported the information of change in ownership in 1990. Mr. Simmons answered that he didn't know if their attorney was speaking exactly of the year 1990, but the new agreement was entered into with all the tow companies in the city on the rotation in 1999. City Attorney Penman confirmed that they were operating under a 1999 agreement regardless of what happened in 1990. Mr. Simmons stated that he was not aware of a change in ownership in 1990. Council Member/Commissioner McGinnis addressed City Attorney Penman, stating that he wanted to make sure, since they were doing this judicial hearing, that he is not going to be asking the wrong thing. He asked Mr. Penman for confirmation that he had stated earlier that the City is still working on coming up with guidelines that the City is going to use. Mr. Penman confirmed that these guidelines would be for re -application and new application. Council Member/Commissioner McGinnis asked whether this Council could decide today, not during this hearing but after this hearing, to continue on an interim basis with these companies until it has been determined whether they meet the criteria, fall within the guidelines, etc. City Attorney Penman stated that he thought what Mr. McGinnis would want to do, if it was his desire and the desire of Council, would be to do that through Motion #3, which would be to uphold the appeal of the applicant, in part, based upon the back-up information submitted and any additional evidence presented 24 07/05/2005 at the hearing, and direct the City Attorney's Office to prepare findings and conclusions consistent with its decision. He stated that he thought what Mr. McGinnis was saying was that he wanted to leave them on the list, pending the new procedures; and Mr. McGinnis answered in the affirmative. Mr. Penman clarified that he was not suggesting that Mr. McGinnis adopt Motion #3; however, there was nothing else on the agenda relative to this matter, and under the Brown Act he didn't believe the Council would be able to do that at this time as a separate item. Council Member/Commissioner McCammack stated that she wanted to bring her colleagues' attention to one other item in City Resolution No. 1999-86, page 4, #7, "Any agreement entered into pursuant to the terms of this resolution may be terminated by either party, without prejudice, upon thirty days written notice to the other party." She asked Mr. Penman whether that was in fact what the Council was exercising here. City Attorney Penman stated that he thought the Council could make the constructive determination, a determination that that constructive notice was what was given; however, it was not argued by the attorney for the Police Department (Mr. Simmons). He stated that a 30-day notice was given, and the reason initially given is that they changed ownership. At the same time, either party is free to terminate the contract with 30 days notice, and that was also done. He stated that the second letter that was sent becomes the 30 days and is effective July 10—that would be the 30' day; so in response to Ms. McCammack's question, he thought the Council could make that determination. Pursuant to Resolution No. 2000-279, City Clerk Clark administered an oath to Jason Desjardins that he would provide true and honest testimony. Jason Desjardins, President of Big Z Auto Works, stated that he wanted to clarify some of the statements made by Mr. Simmons. He stated that there was a notification made to the Traffic Sergeant of the City last summer —that as soon as the change of ownership was made he met with the Traffic Sergeant of the City of San Bernardino. He stated that the sergeant had come in to either do a VIN check or some other thing; in fact, the old owner, Bob Wells, actually arranged the meeting. He stated that he introduced himself to no less than 15 officers within the City, so the change of ownership for Big Z Auto Works was well known —it was not a secret. He stated that he actually promoted the fact that Big Z, being a brick building, could be a quasi safe house for an officer possibly in trouble, as they are open 24 hours a day. He promoted that fact that they could come in and 25 07/05/2005 have coffee and water, or write their reports in the room that they always have set up. Attorney McGovern asked Mr. Desjardins whether the sergeant or any other police officer at any other time told him that there was something that he needed to do in order to transfer the ownership —that he needed to come to the City Council, or come to the City Attorney, or come to do anything? Mr. Desjardins stated that when he had that meeting, his best recollection was that he questioned the process and whether he was in compliance. He asked if there was anything he needed to do to the yard, or whether there was anything procedurally or paperwork wise that he needed to clear up to maintain his position on the rotation. Mr. Desjardins stressed the fact that his life was staked on this business —his house, his ten years of law enforcement workings, his income —everything was staked on this, so it was very important to him to make sure that he was not in any kind of violation. He stated that he was even CTTA certified; that he went to the tow truck school to make sure that he had the certificate to prove that he had the experience outside of his other experience. Mr. Desjardins stated that the sergeant's statement to him was, "Make sure that you have the approval from the California Highway Patrol, because without that California Highway Patrol approval you cannot be on any police rotation unless you are on the California Highway Patrol rotation." He stated that he immediately did that —he went and spoke with the CHP tow officer at the California Highway Patrol office on Highland; and he thought this officer was over the San Bernardino area. He stated that he not only spoke with him, but the officer actually came down and inspected their trucks. Mr. Desjardins stated that he tried to get as much approval as he thought he could get. So much so, in fact, that earlier this year in March or April, the City of San Bernardino Police Department came in and inspected their yard and made sure that their security was up to par, that their gates worked, that they had motion detectors and video camera surveillance, and so on and so forth. He added that their haz-mat fee was in order, all of their permits were in place, and everything is all there —and it was there from the beginning —from the time he purchased the business. He added that there is a rule in his own police department, the L.A. County Sheriff's Department of which he is a member, that if you go and entertain outside employment of any sort you have to be in compliance with the law — from infractions of the municipal code all the way up. You have to be in compliance with every code or you cannot do outside employment. 26 07/05/2005 At this time, Council Member/Commissioner Kelley left the dais, and City Attorney Penman requested that the Mayor declare a short break, to ensure the integrity of the hearing process, until Mr. Kelley was able to return. The following action was taken immediately upon the return of the Council/Commission members. Council Member/Commissioner McGinnis made a motion, seconded by Council Member/Commissioner Kelley, that the hearing be closed; that the Mayor and Common Council uphold the appeal of the applicant, in part, based upon the back-up information submitted and any additional evidence presented at the hearing and direct the City Attorney's Office to prepare findings and conclusions consistent with its decision; and that Big Z Towing Company would remain on the tow rotation list until the ad hoc committee completes its findings and establishes its criteria. The motion carried by the following vote' Ayes: Council Members/ Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. Council Member/Commissioner McCammack, speaking on behalf of the ad hoc committee, informed the towing companies in the room that criteria is currently being established to set in place the selection process to be used by the Police Department, probably quite a different process than it is today. Therefore, they needed to know, for a fact, 100 percent, that when they go to re -apply they will have to meet the new and current criteria, if in fact the Council agrees to set that into motion. And that process could be quite different from what it is now. She stated that, technically, they had been given another stay. They were already given one stay from the time they changed ownership —they had been given another stay from the 30 days to the interim period of time; and when that interim period of time was over, it's probably over. She wanted them to understand that what she was saying was that the criteria would probably change, so they needed to be on notice that when the criteria changes, they may be asked to re -apply and they would need to meet whatever the new criteria is. Mayor Valles asked for confirmation of her understanding that the new criteria would also apply to those currently on the list. Council Member/Commissioner McCammack replied that that was not necessarily true. Mayor/Chairman Valles asked if those companies currently on the list would be grandfathered in. City Attorney Penman answered that some may be grandfathered; however, the Council had not made a final decision on that. He stated that among the ideas 27 07/05/2005 that have been discussed is a point system. It has also been suggested that everybody that qualifies —their name would go into a hat and they would draw the companies that would be allowed to stay on the list or get on the list. So there has been no final decision made yet; but to the two tow companies that were present, and their attorney, what Ms. McCammack was talking about is that probably within the next 30-60 days the Council will be adopting some new procedure for deciding who is on the police tow rotation list. At that time they will decide whether or not they are going to grandfather anyone, and if so, why, and that type of thing. So, no final decision has been made, except that it seems to be the will of the Council that some new and different system be developed. 27. Set a workshop for the Capital Improvement Program (CIP) - to review the Five Year Capital Improvement Program - Fiscal Years 2005/2006- 2009/2010 (Continued from June 23, 2005) Council Member/Commissioner Kelley made a motion, seconded by Council Member/Commissioner Derry, that a CIP Workshop be set for Monday, July 18, 2005 at 5:00 p.m. in the Economic Development Agency Boardroom to review the Five Year Capital Improvement Program for Fiscal Years 2005/2006-2009/2010. The motion carried by the following vote: Ayes: Council Members/ Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. COMMUNITY DEVELOPMENT COMMISSION Staff Present: Mayor/Chairman Valles; Council Members/Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson, McCammack; Senior Assistant City Attorney Calkins, City Clerk Clark, Economic Development Agency Executive Director Van Osdel. Absent: None. R28. RES. CDC/2005-24 - Resolution of the Community Development Commission of the City of San Bernardino approving and authorizing the Executive Director of the Redevelopment Agency of the City of San Bernardino ("Agency") (1) to execute the Redevelopment Project Study and Redevelopment Assistance Agreement with Street -Manchester, LLC ("Developer"); and (2) to initiate a General Plan Amendment changing the land use from CR-1 to CR-2 within the Central City Projects Redevelopment Project Area to accommodate redevelopment of the site known as the Carousel Mall. Agency Executive Director Van Osdel provided an overview of the staff report, noting that the representatives of the mall ownership have signed off on this 28 07/05/2005 agreement, acknowledging that the proponents have their authority to enter into this agreement with the Agency. He stated that this is nothing more than an opportunity to look at the situation —it does not commit the Redevelopment Agency of the City of San Bernardino to do anything but join forces with Harold Street and Fred Stemmler and their consultant to take a hard look at the situation at the mall to see if there aren't some things that we can do to bring new life to downtown San Bernardino. Mr, Van Osdel clarified that the exhibit in the backup materials indicated that the project encompassed 72 acres, when in fact the size is only 44 acres —it encompasses only the property between 2' and 4' Streets and E Street and the convergence of 3rd and G Streets. Council Member/Commissioner Derry made a motion, seconded by Council Member/Commissioner McGinnis, that said resolution be adopted. Resolution No. CDC/2005-24 was adopted by the following vote: Ayes: Council Members/Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. 29. Appeal of Planning Commission Conditions of Approval for Conditional Use Permit (CUP) No. 04-33 regarding use restrictions - retail shopping center - northwest corner of Mill Street & Rancho Avenue Mayor/Chairman Valles opened the hearing. Valerie Ross, Deputy Director/City Planner, advised that on April 19 the Planning Commission approved a conditional use permit for this strip center located at the northwest corner of Mill Street and Rancho Avenue. She stated that the applicant was concerned with Condition #22 in the Planning Commission staff report, a condition that precludes certain specified businesses —businesses already prohibited on an interim basis by a moratorium established by Ordinance No. MC-1188. The applicant felt that when the moratorium was lifted he should not be precluded from having some of those businesses in his center. Ms. Ross noted that two of the Planning Commission members agreed with the applicant; three disagreed. The three that disagreed felt that the condition should remain, and they also added pawn shops as a prohibited business, consistent with the ordinance. Ms. Ross advised that both staff and the Planning Commission believed that Condition #22 should remain in place. She stated that the Planning Commission, in particular, was concerned about the viability of the center with 29 07/05/2005 reliance on those types of businesses. The Planning Commission concurred that the applicant has the ability in the future to request an amendment to the Conditions of Approval to either remove or modify any or all of those uses; and at that time the Planning Commission has the ability to make a determination whether it is appropriate or not. Ms. Ross concluded her remarks by stating that staff recommended that the Mayor and Council deny the appeal and uphold the Planning Commission's approval with Condition #22 intact. Pursuant to Resolution 2000-279, City Clerk Clark administered an oath to Mr. Mohammad Siddiqui that he would provide true and honest testimony. City Attorney Penman stated that he needed to advise Mr. Ali Yasin, the applicant, that by law he was entitled to a 10-day written notice before the hearing is held, and it was his understanding that Mr. Yasin had not been given the 10-day written notice. Mr. Yasin stated that he had been notified just this morning; however, his father was sick and he needed to leave the country as soon as possible and he was willing to go ahead with the hearing at this time. Mr. Penman reiterated that Mr. Yasin had a right to request a continuance to a later date in order for the City to comply with his rights. Mr. Yasin stated that he was willing to waive his right to a written 10-day notice. Mohammad Siddiqui, representative for Mr. Yasin, stated that their point is, why does his client have to come back to the Planning Commission again at a later date to have this condition removed or changed —why can't this Condition #22 be removed right now, because the condition already exists through the moratorium ordinance. He said he did not understand the point of view of the Planning Commission or the Planning Department. Ms. Ross stated that Mr. Yasin was made aware at the Development Review Committee meeting, as were other applicants, that this would be imposed as a condition of approval. She stated that staff believes it gives the City an additional mechanism to use in concert with the ordinance —that they get some very creative people at their counter coming up with different ways to categorize their business in an attempt to try and get around the provisions in the moratorium —so that is why they included it as a condition. Council Member/Commissioner McGinnis stated he was not sure why this condition had to be included in Mr. Yasin's conditional use permit, when it is already an ordinance. He stated that he knew it required the City to do its due 30 07/05/2005 diligence whenever any business is going in, to present to them what they can and cannot have under the City's interim ordinance now in place. However, he also understood what the difficulty would be for Mr. Yasin, if the Council did away with the ordinance and he then tried to get this condition removed from the conditional use permit of his property. He stated that he thought it was unfair to Mr. Yasin, and to anyone else coming to the counter, to have to have this in their conditional use permit, not knowing what the City is going to do a year from now. He stated he did not agree with adding this condition to Mr. Yasin's conditions of approval. Council Member/Commissioner Longville stated that she was concerned when she looked at her agenda and saw that there were not two motions to consider — one to uphold and one to deny. She stated she was sure that was just a clerical issue because she was going to speak in terms of upholding the appeal. She stated that she, too, thought it was only fair that after the City has finished its moratorium, and they have established standards that are going to determine how many of these stores are going to be permitted and in what areas, that this particular property owner should be under the same provisions as the rest of the property owners are. To include this in the conditions of approval implies that they are going to have this restriction forever, even after the moratorium ends; and she thought that was inappropriate. She stated that she supported doing a moratorium four years before the Council actually took action to do so, and she thought it was an important thing to do, but she certainly did not think that one particular person should be held hostage just because right now they are in the interim. Council Member/Commissioner Longville made a motion, seconded by Council Member/Commissioner McGinnis, that the hearing be closed; and that the Mayor and Council uphold Mr. Yasin's appeal. (Note: The vote was taken following additional discussion.) Council Member/Commissioner Derry stated that the Council is still in the middle of a policy decision —they've made a policy decision in the interim and it's going to come back to them. However, he has a great deal of concern with incorporating the terms of the interim policy as conditions of approval for a project when they don't come to the Council except as an appeal; and it is obvious that this has happened before. He stated that he had a great deal of concern of this happening again with other customers who are willing to do whatever needs to be done for them to get their approvals. He stated that he had great concerns with policy being set at the Planning Commission —that the Planning Commission is supposed to interpret policy and interpret the code —it's not supposed to set policies. He stated that he had a great deal of concern with this occurring in the future; and that he would 31 07/05/2005 prefer that this condition not be included, unless at some time there is an ordinance in place that is permanent and sets out the standards by which such approvals will be made. Council Member/Commissioner McCammack stated that she respected Ms. Ross' opinion greatly, and if some folks are getting very creative and ingenious and misrepresenting the types of businesses that are going into certain locations, it makes it very difficult for Development Services to enforce those conditions through a moratorium. She stated that staff only has the ability to enforce a CUP through the findings; therefore, if Ms. Ross felt this was an issue, based on the comments and opinions of the Planning Commissioners, then she was prepared to back her up. She added that she was prepared to back her up because the City doesn't have enough enforcement efforts —that if we had a code enforcement officer for every street in the City, maybe we would have enough enforcement out there to take care of the kinds of businesses that the Council did address as a policy. She stated she had a real problem not backing up the Planning Commission and not backing up Ms. Ross' comments; and advised that she was not prepared to uphold the appeal because she didn't believe the City had enough enforcement out there on the street to take care of business the way the Council has set into policy. Council Member/Commissioner Kelley asked Ms. Ross if including this condition was a tool that the department is using to make sure that in the future we don't have a corner that is full of 99-cent stores, smoke shops, and tattoo parlors. Ms. Ross stated that if it remains in as a condition of approval, then yes, that would preclude them until such time as the applicant requests a reconsideration of his permit. The motion made by Council Member/Commissioner Longville, seconded by Council Member/Commissioner McGinnis, to close the public hearing and uphold the appeal carried by the following vote: Ayes: Council Members/ Commissioners Longville, McGinnis, Derry, Johnson. Nays: Council Members/Commissioners Estrada, Kelley, McCammack. Absent: None. 30. Appeal of Planning Commission denial of request to subdivide 0.55 acre into two lots — vacant parcel at corner of Yucca and Camellia Drives Staff requested a continuance of this matter to July 18, 2005, due to lack of required notification. 32 07/05/2005 Council Member/Commissioner McCammack made a motion, seconded by Council Member/Commissioner Johnson, that the matter be continued to the Council/Commission meeting of July 18, 2005. The motion carried by the following vote: Ayes: Council Members/ Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. 31. Set joint workshop - Mayor and Common Council & Planning Commission - General Plan Update Program It was noted that staff could not be ready for the workshop by the proposed date of July 25; also, Deputy City Attorney Empeiio would be on vacation. Council Member/Commissioner Kelley made a motion, seconded by Council Member/Commissioner Johnson, that the Mayor and Common Council set a joint workshop with the Planning Commission for Monday, August 8, 2005, at 5 p.m., in the Economic Development Agency Boardroom, to discuss the General Plan Update Program. The motion carried by the following vote: Ayes: Council Members/ Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. 32. Public Comments Betty Long, 1541 North "G" Street, San Bernardino, CA, spoke regarding the need for people to look at what is going on around them in the City and the County and to take action to restore things to the way our forefathers had them. Jay Lindberg, 6340 Orange Knoll, San Bernardino, CA, spoke regarding the City's fireworks laws and medical marijuana. James Penman, 221 East Marshall Blvd., San Bernardino, CA, spoke regarding the political process, including political campaigns and running for office. Ken Ballinger, 2947 Orange Street, San Bernardino, CA, spoke regarding an open drain behind his house which floods his house and neighborhood when there are heavy rains. He stated he has called various agencies on numerous occasions and has never gotten a response, and he wants someone to fix it before the next rainy season. Mayor/Chairman Valles asked Mr. Ballinger to give his telephone number to a member of her staff and they would follow-up with him. 33 07/05/2005 Esther Estrada, stated that at the last Council meeting the Mayor and Council had discussed matters relative to the acquisition of properties in the downtown area in closed session, and told how surprised she was to see the whole matter spelled out in black and white in the newspaper the next day, and that the information had been provided by City Attorney Penman. She stated that on innumerable occasions Mr. Penman has admonished the Mayor, Council and staff that they cannot and must not discuss issues that take place in executive session outside of that room. She also took exception to some of the actual comments made by Mr. Penman in the article. City Attorney Penman stated he was very careful not to answer questions that were discussed in closed session; that the issue of eminent domain has always been a hot issue in the City; and explained the importance of a redevelopment plan. Mr. Penman advised that following publication of the article in question, he had called the newspaper. Subsequently, they published an article which stated that the original article "incorrectly characterized a statement by City Attorney James F. Penman —that the story should have clarified that Penman would not confirm or deny getting a legal opinion in closed session." S1. Report to Mayor and Common Council - various crime statistics Garrett Zimmon, Chief of Police, provided an overview/explanation of the crime statistic data contained in the backup materials and answered additional questions posed by the Council. Council Member/Commissioner McCammack made a motion, seconded by Council Member/Commissioner Kelley, that the Mayor and Common Council receive and file Chief Zimmon's report on various crime statistics. The motion carried by the following vote: Ayes: Council Members/ Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. S2. Waiver of potential conflict of interest of law firm of Best, Best & Krieger Council Member/Commissioner McGinnis made a motion, seconded by Council Member/Commissioner Derry, that the potential conflict of the law firm of Best, Best & Krieger, arising from that firm's past and current representation of the City and the request of the City of Loma Linda to hire said firm regarding an adverse position the City of Loma Linda has taken on a wastewater issue with the City of San Bernardino Municipal Water Department, be waived. 34 07/05/2005 The motion carried by the following vote: Ayes: Council Members/ Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. 33. Adjournment At 6:28 p.m., the meeting adjourned. The next joint regular meeting of the Mayor and Common Council and Community Development Commission is scheduled for 1:30 p.m., Monday, July 18, 2005, in the Council Chambers of City Hall, 300 North "D" Street, San Bernardino, California. No. of Items: 35 No. of Hours: 5 RACHEL G. CLARK City Clerk By: ev Linda E. Hartzel Deputy City Clerk 35 07/05/2005