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HomeMy WebLinkAbout07-18-2005 MinutesMayor Judith Valles Council Members: CITY OF SAN BERNARDINO Esther Estrada 300 N. "D"Street Susan Longville San Bernardino, CA 92418 Gordon McGinnis Neil Derry Website: www.sbcity.org Chas Kelley Rikke Van Johnson Wendy McCauunack MINUTES MAYOR AND COMMON COUNCIL AND THE COMMUNITY DEVELOPMENT COMMISSION AND THE SAN BERNARDINO CITY HOUSING AUTHORITY OF THE CITY OF SAN BERNARDINO JOINT REGULAR MEETING JULY 18, 2005 COUNCIL CHAMBERS The joint regular meeting of the Mayor and Common Council, Community Development Commission, and the San Bernardino City Housing Authority of the City of San Bernardino was called to order by Mayor/Chairman Valles at 1:34 p.m., Monday, July 18, 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, Longville, Derry, Johnson, McCammack; City Attorney Penman, City Clerk Clark, City Administrator Wilson. Absent: Council Members/Commissioners McGinnis, Kelley. Council Member/Commissioner Kelley Arrived At 1:40 p.m., Council Member/Commissioner Kelley 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): 07/18/2005 Aguilar v. City of San Bernardino, Southern California Edison - San Bernardino Superior Court Case No. 115557; Mohammed Fawzi Hassan, et al. v. City of San Bernardino, et al. - United States District Court Case No. EDCV 05-328 VAP (SGLx); Kimberlyn Hearns v. City of San Bernardino, et al. - United States District Court Case No. CV 05-04524 GHK (RZx); City of San Bernardino, et al. v. Valerie Pope -Ludlam, et al. - San Bernardino Superior Court Case No. SCVSS 108965; Benjamin Brown v. City of San Bernardino - San Bernardino Superior Court Case No. 107399; 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: Timothy V. Laughlin, individual and dba Dream Construction 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. San Bernardino Unified School District 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. Conference with labor negotiator - pursuant to Government Code Section 54957.6: Negotiator: Linn Livingston, Director of Human Resources 2 07/18/2005 M Employee Organization: San Bernardino City Professional Firefighters Conference with real property negotiator - pursuant to Government Code Section 54956.8: 1. Pro e : 247 West Third Street 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 2. Property: 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 Villaseiior 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 3. Property: Southwest corner of "J" Street and 17' Street APN 0144-123-03,0144-131-36, 0144-131-21, and 0144-123-46 Owner/Seller: Gary Van Osdel, Executive Director, on behalf of the Redevelopment Agency of the City of San Bernardino, property owner(s) Buyer: Inland Empire Concerned African American Churches IVDA Redevelopment Project Area (Meadowbrook Housing Project) 4. Proper 151 East 2n° Street APN 0135-291-09 Negotiating Parties: Gary Van Osdel, Executive Director, on behalf of the Redevelopment Agency and/or San Bernardino City Housing Authority, as buyer, and Ivan Miletich, property owner Under Negotiation: Purchase price, terms and conditions 3 07/18/2005 Property: 161 East 2nd Street APN 0135-291-11 Negotiating Parties: Gary Van Osdel, Executive Director, on behalf of the Redevelopment Agency and/or San Bernardino City Housing Authority, as buyer, and Alberto Falcon and Maria Garcia, property owners Under Negotiation: Purchase price, terms and conditions 6. Property: 167 East 2' Street APN 0135-291-12 Negotiating Parties: Gary Van Osdel, Executive Director, on behalf of the Redevelopment Agency and/or San Bernardino City Housing Authority, as buyer, and Pedro Medina Jr., property owner Under Negotiation: Purchase price, terms and conditions 7. Property: 156 East King Street APN 0135-291-27 Negotiating Parties: Gary Van Osdel, Executive Director, on behalf of the Redevelopment Agency and/or San Bernardino City Housing Authority, as buyer, and Miguel Ramirez, property owner Under Negotiation: Purchase price, terms and conditions Property: 253 East King Street APN 0135-302-09 Negotiating Parties: Gary Van Osdel, Executive Director, on behalf of the Redevelopment Agency and/or San Bernardino City Housing Authority, as buyer, and Victor Licon, property owner Under Negotiation: Purchase price, terms and conditions Central City North Redevelopment Project Area 9. Property: 745 West 5`s 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 10. Proper 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 11. Proper 740 West 41h Street APN 0134-093-19, 20, and 43 Negotiating Parties: Gary Van Osdel, Executive Director, on behalf of the Redevelopment Agency, and Penhun Ltd./Expo Ltd., property owner(s) Under Negotiation: Purchase price, terms and conditions City Attorney Penman announced that the following additional items would be discussed in closed session: Under Agenda Item No. 1A, Existing litigation: Avila v. City - San Bernardino Superior Court Case Nos. SCVSS 078410 and SCVSS 91020; Under Agenda Item No. 113, Significant exposure to litigation: The claim of Harold Sykes and Agenda Item Nos. 33-38; Under Agenda Item No. 11), Personnel: Agenda Item No. 8; Under Agenda Item No. 1G, Conference with real property negotiator: Property: Joint use of multi -purpose room/gymnasium at the Cesar Chavez Middle School 6650 Magnolia Court, San Bernardino, California Negotiating Parties: Marianne Milligan, City Attorney's Office, and Teri Baker, City Administrator's Office, City of San Bernardino; and Wael Elatar, Facilities Administrator, San Bernardino City Unified School District, property owner Council Member/Commissioner Kelley made a motion, seconded by Council Member/Commissioner Estrada, and unanimously carried, that the EDA closed session items be continued to August 1, 2005. 5 07/18/2005 Reading of Resolutions & Ordinances Deputy City Clerk Sutherland read into the record the titles of all the resolutions and ordinances on the regular agenda of the Mayor and Common Council, Community Development Commission, and the San Bernardino City Housing Authority. Council Member/Commissioner McGinnis Arrived At 3:10 p.m., Council Member/Commissioner McGinnis arrived at the Council/ Commission meeting. Invocation/Pledge of Allegiance The invocation was given by Dr. Woody Hall of Lutheran Church of Our Savior, followed by the pledge of allegiance, led by Diego Murillo, a student at Anderson School. Moment of Silence Mayor/Chairman Valles expressed condolences to the families and requested a moment of silence in memory of Mary White, who spent many years serving the City through the San Bernardino County Office of Small Business Development; and Elva Jane Henderson, co- owner of Bobby Rays Bar-B-Que in San Bernardino. 2. Appointment - Robin Cochran - Fine Arts Commission - Council Member/Commissioner McCammack Council Member/Commissioner McGinnis made a motion, seconded by Council Member/Commissioner Longville, that the appointment of Robin Cochran to the Fine Arts Commission, as requested by Council Member/Commissioner McCammack, be approved. The motion carried by the following vote: Ayes: Council Members/ Commissioners Longville, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: Council Member/Commissioner Estrada. Re -appointments - Board of Water Commissioners - Mayor/Chairman Valles . Cecilia "Toni" Callicott - retroactive to May 8, 2005; new term to expire May 8, 2011 . B. Warren Cocke - retroactive to May 13, 2001; new term to expire May 13, 2007 . Norine Miller - retroactive to May 9, 2004; new term to expire May 9, 2010 Council Member/Commissioner McGinnis made a motion, seconded by Council Member/Commissioner Derry, that the re -appointments of Cecilia "Toni" Callicott, B. Warren Cocke, and Norine Miller to the Board of Water Commissioners, as requested by Mayor/Chairman Valles, be approved. 6 07/18/2005 K 4. 5 The motion carried by the following vote: Ayes: Council Members/ Commissioners Longville, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: Council Member/Commissioner Estrada. Presentations A Certificate of Recognition was presented to Marcos Zapata for coming to the rescue of Patricia Vincent, Executive Director of "Camp Fire USA". Patricia was being assaulted and the perpetrator was trying to kidnap her, car jack her vehicle, and use her as the driver. Marcos' quick reaction foiled the attempted crime in progress as he wrestled the man to the ground and held him at bay until the police arrived and arrested him. Nick Gonzalez, Assistant to the Mayor, announced that the first -place winners of the Fourth of July Parade Float Category were: The Pioneer Heritage Group for Best of Theme; The Friends of Salute to the Route for Best Originality; Khemer Buddhist Group for Best Community Spirit; Danzas De Aztlan for Best Cultural Display; Club United for Best Performance; and Juan Pollo for Best in Humor. Dennis Baxter, Co-chairman of the Fourth of July Parade Committee, presented the Mayor with a reproduction of a poster called, "Hurray for the Flag 1902," from the Fourth of July of that year, in appreciation of her many years of support of the Fourth of July Parade. June Durr, Public Information Officer, Mayor's Office, read the names of the following individuals who were presented a service pin award by Mayor/Chairman Valles in recognition of their many years of dedicated service to the City: Name Department Years of Service Barry Reynolds Development Services 5 Mike Grubbs Development Services 20 Cynthia Cervantes One Stop Career Center 25 Announcements Announcements were made by the Mayor, members of the Common Council, elected officials, and a representative from the Chamber of Commerce regarding various civic, community, and chamber events and activities. Waive Full Reading of Resolutions & Ordinances Council Member/Commissioner McCammack made a motion, seconded by Council Member/Commissioner McGinnis, that full reading of the resolutions and ordinances on the regular agenda of the Mayor and Common Council, Community Development Commission, and the San Bernardino City Housing Authority, be waived. 7 07/18/2005 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 McCammack made a motion, seconded by Council Member/Commissioner McGinnis, that the minutes of the following meetings of the Mayor and Common Council/Community Development Commission of the City of San Bernardino be approved as submitted in typewritten form: June 7, 2005; June 16, 2005; and June 23, 2005. The motion carried by the following vote: Ayes: Council Members/ Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. 7. Claims & Payroll Council Member/Commissioner McCammack 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 July 13, 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 McCammack made a motion, seconded by Council Member/Commissioner McGinnis, that the personnel actions, as submitted by the Chief Examiner, dated July 18, 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. 2005-236 - Resolution of the Mayor and Common Council of the City of San Bernardino granting an extension of the Cable Franchises with Adelphia Communications, Charter Communications, and Mountain Shadows Cable. Council Member/Commissioner McCammack made a motion, seconded by Council Member/Commissioner McGinnis, that said resolution be adopted. 8 07/18/2005 Resolution No. 2005-236 was adopted by the following vote: Ayes: Council Members/Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. 10. RES. 2005-253 - Resolution of the Mayor and Common Council of the City of San Bernardino authorizing the execution of a purchase agreement with the Foundation for California State University, San Bernardino, and authorizing the Purchasing Manager to award a purchase order to the Foundation for California State University, San Bernardino, for the purchase of certain television broadcast equipment. Council Member/Commissioner Longville abstained because she is employed by California State University, San Bernardino. She left the Council Chambers and returned after the vote was taken. Council Member/Commissioner Estrada made a motion, seconded by Council Member/Commissioner Johnson, that said resolution be adopted. Resolution No. 2005-253 was adopted by the following vote: Ayes: Council Members/Commissioners Estrada, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Abstentions: Council Member/Commissioner Longville. Absent: None. 11. RES. 2005-237 - 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 McCammack made a motion, seconded by Council Member/Commissioner McGinnis, that said resolution be adopted. Resolution No. 2005-237 was adopted by the following vote: Ayes: Council Members/Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. 12. RES. 2005-254 - Resolution of the Mayor and Common Council of the City of San Bernardino approving the hiring of Richards, Watson & Gershon to represent the City regarding franchise transfers to Time Warner Cable. (12A) RES. 2005-254A - Resolution of the Mayor and Common Council of the City of San Bernardino authorizing the execution of a Professional Services Agreement between Richards, Watson & Gershon and the City of San Bernardino to represent the City regarding franchise transfers to Time Warner Cable. (12B) 9 07/18/2005 Council Member/Commissioner McGinnis made a motion, seconded by Council Member/Commissioner Estrada, that said resolutions be adopted. Resolution Nos. 2005-254 and 2005-254A were adopted by the following vote: Ayes: Council Members/Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. 13. 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 McCammack 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. 14. RES. 2005-238 — Resolution of the Mayor and Common Council of the City of San Bernardino authorizing an agreement to renew the Agreement between the City of San Bernardino and Wells Fargo Bank, N.A. for the provision of banking services and the deposit of monies for one year beginning July 1, 2005 and ending June 30, 2006. Council Member/Commissioner McCammack made a motion, seconded by Council Member/Commissioner McGinnis, that said resolution be adopted. Resolution No. 2005-238 was adopted by the following vote: Ayes: Council Members/Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. 15. RES. 2005-239 — 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 Mountain View Avenue at Thirteenth Street. Council Member/Commissioner McCammack made a motion, seconded by Council Member/Commissioner McGinnis, that said resolution be adopted. 10 07/18/2005 Resolution No. 2005-239 was adopted by the following vote: Ayes: Council Members/Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. 16. RES. 2005-240 - Resolution of the City of San Bernardino approving Amendment No. 1 to Agreement for Services with Transtech Engineers, Inc. for Engineering Plan Checking Services. Council Member/Commissioner McCammack made a motion, seconded by Council Member/Commissioner McGinnis, that said resolution be adopted. Resolution No. 2005-240 was adopted by the following vote: Ayes: Council Members/Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. 17. RES. 2005-241 - Resolution of the City Council of the City of San Bernardino amending the Liability Risk Coverage Agreement and the Joint Powers Agreement creating the Big Independent Cities Excess Pool Joint Powers Authority, and authorizing, ratifying, and approving certain other actions in connection therewith. Council Member/Commissioner McCammack made a motion, seconded by Council Member/Commissioner McGinnis, that said resolution be adopted. Resolution No. 2005-241 was adopted by the following vote: Ayes: Council Members/Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. 18. RES. 2005-242 - Resolution of the City of San Bernardino establishing a Management and Confidential Employee Compensation and Benefits Plan and repealing Resolution Nos. 2005-230, 2003-364, 2003-329, 2003-277, 2003-41 and 2002-104. Council Member/Commissioner McCammack 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 adopted budget and transfer $193,400 from General Government Account No. 001-092-5011 to various departmental salary and benefit accounts in accordance with implementation of this resolution. The motion carried and Resolution No. 2005-242 was adopted by the following vote: Ayes: Council Members/Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. 11 07/18/2005 19. RES. 2005-243 - Resolution of the City of San Bernardino amending Resolution resolution . information Unclassified). No. 6413, Sections Twelve and Fourteen, entitled in part, "A . . establishing a basic compensation plan . . ." by updating codifying prior Council action (Management/Confidential and Council Member/Commissioner McCammack made a motion, seconded by Council Member/Commissioner McGinnis, that said resolution be adopted. Resolution No. 2005-243 was adopted by the following vote: Ayes: Council Members/Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. 20. RES. 2005-244 - Resolution of the Mayor and Common Council of the City of San Bernardino authorizing the Mayor or her designee to execute an Agreement with the San Bernardino City Unified School District to provide contractual services for before & after -school recreation programs at eighteen (18) school district sites. Council Member/Commissioner McCammack made a motion, seconded by Council Member/Commissioner McGinnis, that said resolution be adopted. Resolution No. 2005-244 was adopted by the following vote: Ayes: Council Members/Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. 21. RES. 2005-245 - Resolution of the Mayor and Common Council of the City of San Bernardino authorizing the Mayor or her designee to execute Amendment No. 1 to the Service Agreement between the City of San Bernardino and Boys and Girls Club of San Bernardino Inc. to provide community services at the Delmann Heights Community Center. Council Member/Commissioner McCammack made a motion, seconded by Council Member/Commissioner McGinnis, that said resolution be adopted. Resolution No. 2005-245 was adopted by the following vote: Ayes: Council Members/Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. 22. RES. 2005-246 - Resolution of the Mayor and Common Council of the City of San Bernardino authorizing the Mayor or her designee to execute a Contract with the County of San Bernardino to administer a Program Continuation Contract from the State of California Community Based Services Program (CBSP) in the amount of $24,436 for the period of July 1, 2005 through June 30, 2006. 12 07/18/2005 Council Member/Commissioner McCammack made a motion, seconded by Council Member/Commissioner McGinnis, that said resolution be adopted. Resolution No. 2005-246 was adopted by the following vote: Ayes: Council Members/Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. 23. RES. 2005-247 - Resolution of the Mayor and Common Council of the City of San Bernardino authorizing the Mayor or her designee to execute Amendment No. 1 for Title III-B Contract through the County of San Bernardino Department of Adult and Aging Services (DAAS) for assisted transportation for a period of July 1, 2005 through June 30, 2006. Council Member/Commissioner McCammack made a motion, seconded by Council Member/Commissioner McGinnis, that said resolution be adopted. Resolution No. 2005-247 was adopted by the following vote: Ayes: Council Members/Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. 24. RES. 2005-248 - Resolution of the Mayor and Common Council of the City of San Bernardino authorizing the Mayor or her designee to execute Amendment No. 1 for Title III-B Contract through the County of San Bernardino Department of Adult and Aging Services (DAAS) for senior outreach services from the period of July 1, 2005 through June 30, 2006. Council Member/Commissioner McCammack made a motion, seconded by Council Member/Commissioner McGinnis, that said resolution be adopted. Resolution No. 2005-248 was adopted by the following vote: Ayes: Council Members/Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. 25. RES. 2005-249 - Resolution of the Mayor and Common Council of the City of San Bernardino authorizing the Mayor or her designee to execute Amendment No. 7 to the Agreement with San Bernardino City Unified School District, relating to delivery of breakfasts, snacks, and lunches to Delmar Heights Head Start Center. Council Member/Commissioner McCammack made a motion, seconded by Council Member/Commissioner McGinnis, that said resolution be adopted. Resolution No. 2005-249 was adopted by the following vote: Ayes: Council Members/Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. 13 07/18/2005 26. RES. 2005-250 — Resolution of the Mayor and Common Council of the City of San Bernardino authorizing the Mayor or her designee to execute Amendment No. 1 to the Services Agreement between the City of San Bernardino and New Hope Baptist Church to provide community services at the New Hope Family Life Center. Council Member/Commissioner McCammack made a motion, seconded by Council Member/Commissioner McGinnis, that said resolution be adopted. Resolution No. 2005-250 was adopted by the following vote: Ayes: Council Members/Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. 27. RES. 2005-251 — Resolution of the City of San Bernardino authorizing the execution of a Second Agreement to employ Robert Curtis on a part-time basis in Fiscal Year 2005/06. Council Member/Commissioner McCammack made a motion, seconded by Council Member/Commissioner McGinnis, that said resolution be adopted. Resolution No. 2005-251 was adopted by the following vote: Ayes: Council Members/Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. 28. RES. 2005-252 — Resolution of the Mayor and Common Council of the City of San Bernardino authorizing the execution of a purchase order to Filter Supply Company for the purchase and installation of eighteen diesel particulate filters to be utilized by the Refuse Division. Council Member/Commissioner McCammack made a motion, seconded by Council Member/Commissioner McGinnis, that said resolution be adopted. Resolution No. 2005-252 was adopted by the following vote: Ayes: Council Members/Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. 29. Combine the Deputy City Attorney and Sr. Deputy City Attorney Classes into one attorney series Council Member/Commissioner McCammack made a motion, seconded by Council Member/Commissioner Estrada, that the Mayor and Common Council combine the Deputy City Attorney and Sr. Deputy City Attorney classes into one attorney series, retaining the existing salary scales for the individual classifications, with placement or movement within the series to be determined by the City Attorney. 14 07/18/2005 30. The motion carried by the following vote: Ayes: Council Members/ Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. Implementation of the proposed Parks, Recreation & Community Services Department Reorganization Council Member/Commissioner McCammack made a motion, seconded by Council Member/Commissioner Estrada, that the Mayor and Common Council: Reclassify the position of Parks Project Manager, Range 4463, $4,469- $5,432/month to Parks Superintendent, Range 4515, $5,792-$7,040/month; Add the position of Recreation Superintendent, Range 4515, $5,792-$7,040/month; Adjust the salary range by 10% for Administrative Services Manager from Range 4466,$4,536-$5,514/month to Range 4485, $4,987-$6,062/month; and Leave the Assistant Director position unfunded. The motion carried by the following vote: Ayes: Council Members/ Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. 31. Public hearing - to consider a resolution initiating proceedings to adjust the traffic systems fee, public park development and recreation fee, and planned local drainage facilities fee; and to establish new impact fees for Police Department facilities, equipment, and vehicles and Fire Department facilities, equipment and vehicles RES. 2005-255 - Resolution of the Mayor and Common Council of the City of San Bernardino initiating proceedings to adjust the Traffic Systems fee, Public Park Development and Recreation fee, and Planned Local Drainage Facilities fee; and to establish new impact fees for Police Department facilities, equipment, and vehicles and Fire Department facilities, equipment and vehicles. Mayor/Chairman Valles opened the hearing. Fred Wilson, City Administrator, stated that it has been a number of years since the City has looked at the impact fees it charges new development. The City currently charges a traffic systems fee, a park and recreation fee, and a storm drain fee, as well as many other fees. The City is also looking at adding some new fees, which could potentially include a police and fire capital facilities fee and a parkline dedication fee. Mr. Wilson stated that the City is in the process of conducting a study that involves looking at the General Plan and how new development will pay 15 07/18/2005 only its fair share of those new facilities, and this study will take anywhere from three to five months to complete. Mr. Wilson added that this resolution simply notifies prospective development that the City intends to look at raising its fees. Council Member/Commissioner Kelley stated that the study needs to be mindful of the City's past when it collected a great deal of development fees in the Verdemont area, and it was speculated that those fees were spent on Hospitality Lane. He stated that the City needs to make sure the tracking mechanisms are in place to show where the fees are stored, whether any interest is accruing on the fees, and how those fees are being spent; and he requested that this information be included in the Nexus Study. Council Member/Commissioner Derry stated that mitigation fees are supposed to mitigate potential impacts of the development in the community and most of those impacts are directly related to the development itself such as street improvements, etc., and in some instances modifications may need to be done at a later time in the development to assure that there is adequate capacity, such as with sewer. He stated that many cities use building fees from one area of the city and put them in other areas where the need may have been, but where the mitigation did not have a nexus. For the record, Mr. Derry wanted it made clear that they are not approving any fee increases at this time, and if any proposed fee increases do occur, the matter will come back to the Council for approval. Council Member/Commissioner Estrada stated that fees that come from one area and are spent in another area have primarily been tax increment monies, and in those cases the law is very clear on how to do that. She stated that she has been party to many loan agreements where areas are loaned money from another redevelopment project area, but the purpose and use of those monies is clearly identified. In some cases, these agreements can show that the money is going to be used and it is going to impact a particular area such as traffic, which in turn may impact another area. She stated that this is called mutual resolution because the action is going to mutually impact both redevelopment project areas. Council Member/Commissioner McCammack stated that they need to be sure that they are addressing all the potential future costs in all of the yet -to -be -built neighborhoods in this Nexus Study, so that all of the taxpayers throughout the City won't have to bear the financial burden. Council Member/Commissioner Longville stated that she wants to make sure that the City doesn't do anything to reverse the credit on impact fees given to people who will come in and redevelop the blighted areas that are filled with vacant, boarded up buildings, as those incentives are desperately needed. She stated that in these times of growth people will pay what the market will bear in the new areas, but they will not pay what the market will bear in the areas that are not doing well. No public comments were received. 16 07/18/2005 Council Member/Commissioner McCammack made a motion, seconded by Council Member/Commissioner Johnson, that the hearing be closed; and that said resolution be adopted. The motion carried and Resolution No. 2005-255 was adopted by the following vote: Ayes: Council Members/Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. 32. Public hearing — resolution imposing hens on property located within the City of San Bernardino for uncollected business registration fees RES. 2005-256 — Resolution of the City of San Bernardino imposing liens on certain parcels of real property located within the City of San Bernardino for uncollected business registration fees. Mayor/Chairman Valles opened the hearing. Council Member/Commissioner Estrada made a motion, seconded by Council Member/Commissioner McGinnis, that the hearing be closed; that the City Clerk be directed to administratively remove any properties from Exhibit A, which have been paid prior to the hearing; and that said resolution be adopted. The motion carried and Resolution No. 2005-256 was adopted by the following vote: Ayes: Council Members/Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. 33. Appeal hearing regarding the results of a transient lodging tax audit for the Budget Lodge (Continued from May 2, 2005) The hearing remained open. James Penman, City Attorney, stated that Agenda Item Nos. 33-38 were continued in order to give Mr. Weiser, the attorney representing the appellants, and Mr. Simmons, the attorney representing the City, the opportunity to discuss a settlement. Mr. Penman stated that he had been informed by Mr. Simmons that there was no settlement offer for any of the six motels on today's agenda and that Mr. Weiser wanted to revisit the Astro Motel, which was heard at a previous Council meeting. He informed Mr. Weiser that he would look into placing it on the agenda for the next Council meeting. Pursuant to Resolution No. 2000-279, City Clerk Clark administered an oath to the following individuals that they would provide true and honest testimony: Robert Simmons, Sr. Assistant City Attorney, stated that the City Clerk's Office was asked to audit all the motels in the City. He stated that 36 motels were 17 07/18/2005 initially selected and those names were given to Mr. Al Capuchino, Principal Auditor with Progressive Solutions, who has 45 years of experience as an accountant auditing hotels, 30 years of which have dealt with auditing transient occupancy type taxes. Mr. Simmons stated that the issue to be decided in the appeal is the correct amount of the transient occupancy tax. He noted that at the last meeting, Mr. Weiser presented many legal arguments that he felt were inapplicable to this particular hearing. Mr. Simmons stated that at the last hearing Mr. Weiser had indicated that his clients were being selectively audited because they are members of the Hotel/Motel Association. He stated that that statement was not true and that the City Clerk has no knowledge whatsoever of the Hotel/Motel Association or its members. He stated that the same audit standards were applied to each of the hotels that were audited and the auditor was given no instructions by the City Clerk's Office on how to conduct the audits. Mr. Simmons stated that Mr. Capuchino would talk about the auditing procedures and the sampling techniques he applied to each hotel, called GAAP, which stands for Generally Accepted Accounting Principles. Cindy Buechter, Business Registration Supervisor, stated that the audit of the Budget Lodge was conducted by Mr. Capuchino on October 14, 2003. She stated that the discrepancies found that additional Transient Lodging Tax, penalties and interest in the amount of $13,792.49 was owed to the City. A hearing was held before the City Clerk on April 26, 2004, at which time the City Clerk upheld the auditor's findings. Mr. Simmons asked Ms. Buechter to explain how the hotels were selected. Ms. Buechter stated that in September 2003 she supplied a list of all the hotels in the City to Mr. Capuchino, including the owners names, addresses and phone numbers, and also provided him with a copy of the City's current ordinance so he would know how to proceed and what the laws were governing the City's TLT ordinance. She stated that Mr. Capuchino proceeded to perform field audits of the hotels/motels and that the City Clerk's Office did not give him any instructions other than provide him with a copy of the ordinance. Mr. Simmons asked Ms. Buechter if she had any knowledge of who the members of the San Bernardino Hotel/Motel Association are. Ms. Buechter stated that she had no knowledge of that information. Mr. Simmons asked Ms. Buechter if she had provided Mr. Capuchino with any instructions on how to conduct an audit. Ms. Buechter stated that she did not provide Mr. Capuchino with any instructions; and she added that he was hired because he is a specialist in that area. 18 07/18/2005 7- Mr. Simmons asked Ms. Buechter to explain what was contained in the boxes that were on the cart and where they were kept. Ms. Buecheter stated that during the hearings in the spring of 2004, the Astro Motel, Budget Lodge, Desert Inn Motel, and the Econo Lodge provided additional documentation and wanted the City to perform a more thorough audit. She stated that the records were sealed and kept in the City Clerk's vault until today. Mr. Simmons asked Mr. Capuchino to step up to the podium and state his name and occupation. Al Capuchin, Independent Contractor, stated that he contracts with municipalities throughout the State of California for the purpose of enhancing their revenue recovery through the course of performing audits in business licenses, franchise taxes and transient occupancy taxes. Mr. Simmons asked how long Mr. Capuchino has been doing this. Mr. Capuchino stated that he has been in the accounting profession for 45 years. He has been associated with municipalities first as the City Auditor with the City of Carlsbad and then as an independent contractor for approximately 28 years. Mr. Simmons asked what information Mr. Capuchino was given when he met with the City Clerk. Mr. Capuchino stated that the City Clerk did not instruct him in any way. He first made contact by letter informing the City Clerk's Office of the information he needed from them, which was a list of the names and addresses of owners of each hotel on their list. He then provided the Clerk's Office with a sample letter that would be placed on City letterhead and sent to each hotel/motel informing them that the City had contracted with him to independently review their records relative to the transient occupancy tax. He also provided a sample of the letter that he would be sending directly to the hotels/motels advising them of the date and time of his arrival. Mr. Simmons asked Mr. Capuchino if he had applied the same auditing standards for each hotel he audited. Mr. Capuchino stated that he has standard auditing procedures, but because each motel does not keep records in the same fashion, in many cases they had to adjust their auditing procedures so that it recognizes the different records they have to review. Mr. Simmons asked if Mr. Capuchino was familiar with Generally Accepted Accounting Principles in terms of performing audits on motels. 19 07/18/2005 Mr. Capuchino stated that he follows both Generally Accepted Accounting Principles and Generally Accepted Auditing Procedures. Mr. Simmons asked Mr. Capuchino if he looked at every record of every transaction when he performed the audits of all the hotels. Mr. Capuchino stated that he makes inquiries of the owners as to the type of records they have and the operating procedures they follow so he can formalize his approach to reviewing their records. Some records are on computers, some are manually prepared, and some are just the original documents bound together with rubber bands. Mr. Simmons stated that in each of these cases, Mr. Capuchino audited records for a three-year period. He asked Mr. Capuchino to explain how he performed the audit. Mr. Capuchino stated that he followed Generally Accepted Auditing Procedures to select a base year, and he finds it more convenient for the owners to select the most current year because that way they don't have to get into storage for the records. In this particular case, he requested records for the most current year, then he made a selection of 1 month within those 12 months to make his samples, then he tested all the records in that month. He stated that he tests clerical accuracy by checking to see if the records for that month match the records that were sent to the City and if they don't, he notes that exception as a variance and then later assesses the motel for additional revenue if they reported less than they should have. Mr. Simmons asked Mr. Capuchino if he had any knowledge of the San Bernardino Hotel/Motel Association. Mr. Capuchino stated that he knows it is an association, but doesn't know how it is organized or who the members are. Mr. Simmons asked Mr. Capuchino if the audit of the Budget Lodge was performed in the manner just described. Mr. Capuchino stated that they were late for the audit and when they did arrive they took the position that the review would not be necessary because the fashion in which they record their transactions is accepted by other cities. Mr. Capuchino informed them that regardless of how other cities have accepted their procedures, the City of San Bernardino wanted to review their records. He stated that the records that they gave him to inspect at that particular time would not enable him to perform the review in order to make a report to the City of the compliance with all the requirements set by the City. Mr. Capuchin then arranged to drive to the San Diego area where he went to the office manager at that time who was staying at a motel that was owned by the same owner and the records were kept in his personal motel room and that is where the records were examined. He stated that it was a very uncomfortable environment in which to perform his review. 20 07/18/2005 Mr. Simmons stated that eventually Mr. Capuchino submitted his report to the City Clerk with a narrative and the tabulation of the amount of taxes that were due. Mr. Capuchino stated that he sends his reports to Progressive Solutions, which contracts directly with the City. They then review his reports and make inquiries and any changes they feel are necessary prior to being sent electronically to the City. Mr. Simmons asked Ms. Buechter if the reports attached to the backup for Agenda Item No. 33 were the same reports she received from Progressive Solutions outlining the amount of tax due to the City. Ms. Buechter answered in the affirmative. Frank Weiser, attorney on behalf of all the appellants, asked Ms. Buechter if she ever provided him and/or the appellants with a list of all the motels that have been audited in this general City-wide audit. Ms. Buechter answered that she had not. Mr. Weiser asked Ms. Buechter if she was present at the appeal hearings before the City Clerk. Ms. Buechter answered that she was present at the hearings. Mr. Weiser asked if it was true that the Budget Lodge asked if they could provide additional records to Mr. Capuchino and they were told by Ms. Clark that they would have to pay for Mr. Capuchino's services at $100 per hour if they wanted to have those records reviewed. Ms. Buechter stated that it was her understanding that former Sr. Assistant City Attorney Carlyle responded to the issue of the records being left at the hearing in three separate letters to Mr. Weiser. Mr. Weiser stated that the Budget Lodge and the other appellants did leave records with the City Clerk. Ms. Buechter stated that that was correct. Mr. Weiser asked if those records were reviewed. Ms. Buechter stated that since there was no response from Mr. Weiser to Mr. Carlyle's letter, they did not proceed. 21 07/18/2005 Mr. Weiser stated that that was based upon Mr. Carlyle indicating that if they wanted the records reviewed, they would have to pay for Mr. Capuchino's services at $100 per hour. Ms. Buechter added "or any of his choosing." Mayor/Chairman Valles asked Mr. Weiser why all the documents were not ready at the same time and why was it necessary to come up with extra documents after the audit had been completed. Mr. Weiser stated that there were issues that came up at the appeal itself, but he noted that the appellants did try to provide the records as best they could. He stated that it was his understanding that in a de novo hearing the City Clerk could take new evidence at that time. Mr. Weiser asked Mr. Capuchino if he remembered a question coming up during the initial hearing for the Budget Lodge that if he was going to have to review records left by the appellants he would have to charge them for his services. Mr. Capuchino stated that he did not recall specifically, but that could be confirmed by reviewing the mintues. Mr. Simmons stated that attached to the backup on each of the appeals were copies of letters from Mr. Carlyle to Mr. Weiser explaining that he wanted the City's auditor to review these records and there would be a fee of $250 per hour. He stated that Mr. Weiser was sent three separate letters asking him to respond and he never did. Mr. Weiser asked Mr. Capuchino if he had conducted audits and attended appeal hearings before the City Clerk in other cities besides the City of San Bernardino. Mr. Capuchino answered in the affirmative. Mr. Weiser asked Mr. Capuchino if the appellants had provided records to him with respect to the appeal. Mr. Capuchino stated that appeals he had attended in other cities gave the motel an opportunity to take exception to the findings of the audit, but every appeal he had attended after the audit procedures were performed and requested by the motel was for the purpose of seeking leniency from the City —they never questioned his auditing procedures. Mr. Capuchino stated that in respect to his auditing procedures and with respect to the Budget Lodge, the initial finding was that they were assessed $22,000 with interest and penalties. 22 07/18/2005 Ms. Buechter stated that at the hearing on April 26 relative to the Budget Lodge, it was brought to her attention that ownership had been taken at a later date. The City Clerk received a revised report based on the start date that Mr. Hall took over, so the amount was revised from $22,000 to $13,792. Mr. Capuchino stated that he was not involved in that revision —it came from the corporate office of Progressive Solutions. He stated that he did the audit for a three-year period without taking into consideration the date of ownership change. Mr. Weiser stated that there was a mistake made by Progressive Solutions as far as the amount charged the Budget Lodge. Mr. Capuchino stated that there was no mistake —it was just brought to their attention. He stated that had he been told of the date of the ownership, he would have conducted the audit results from that date forward. Mr. Weiser asked Mr. Capuchino if he had asked the City who was licensed to run the Budget Lodge and when they took ownership, prior to auditing the Budget Lodge. Mr. Capuchino stated that the documents given to him did not indicate any change in ownership date. Mr. Weiser asked Mr. Capuchino how many years had he been performing audits for the City of San Bernardino and whether he got paid on an hourly basis or a contingency basis. Mr. Capuchino stated that this was his first auditing engagement for the City of San Bernardino and he charges a fixed rate of $100 per hour not to exceed a certain amount. He stated that he contracts directly with Progressive Solutions and that their arrangement with the City is information that he is not privy to. Mr. Weiser asked Mr. Capuchino what was the amount he was going to charge the appellants for reviewing the records. Mr. Capuchino stated that no one had approached him for that purpose so he had not arrived at a dollar amount. Mr. Weiser stated that he understood that it was $250 per hour, with a $500 minimum. Mr. Capuchino stated that he believed that was what the City had in their letter. Mr. Weiser made the stipulation that any legal objections raised relative to the Budget Lodge would apply to all the appeals. 23 07/18/2005 Mr. Simmons stated that he would stipulate to that, but he asked that Mr. Weiser stipulate that the brief he presented to the Mayor and Council, with a copy to Mr. Weiser, would also apply to all the appeals. Mr. Weiser stated that that was fine. Larry Hall, sole managing member of the Budget Lodge at Fairway Drive and Camino Real, stated that he also owned four other motels located in El Cajon; Victorville; Phoenix, Arizona; and Austin, Texas. He stated that he's been in the motel business for 15 years and has been through many Transient Occupancy Tax (TOT) audits and has never been found to owe a dime to any of the municipalities that conducted audits. Mr. Hall stated that this audit was performed by a company that works on a contingency basis. He stated that the City has received every penny that was collected by his facility and for two years he paid under protest because the City had taken the position that anyone who stayed there in excess of 30 days had to pay TOT taxes. He stated that he is now processing an appeal for a refund, request for those monies that total $29,000. Mr. Hall stated that this audit produced an original demand for $22,061 and after he and his auditor pointed out certain errors, including the length of time the audit was performed, that amount was then reduced by $8,200. Nearly half of the remaining demand is penalty for alleged violations that remain completely in dispute. In response to several statements made by Mr. Capuchino, Mr. Hall stated that he spent nearly three or four hours with him on the first day and produced a lot more documents than he has ever been asked to produce before, but he did not have a list of what records to bring. Mr. Hall stated that his night auditor lives at a motel in Victorville and he does the books for all five motels from that location via the internet. He stated that every transaction that goes into one of his motels goes into the computer at the time the customer is checked in, the registration card and front desk register are filled in by hand, but the data that's in the computer that is supposed to match is completely separate and is not auditable or changeable by any of his staff for security reasons. Mr. Hall stated that if there are any problems with check out dates, overages, or shortages, his auditor has both sets of data to arrive at the right conclusion. He stated that his central business office is in El Cajon, California, and after the records are completed, reviewed and finalized each month, they come down on a monthly basis and bookkeeping issues checks for TOT taxes, the electrical bill, payroll, etc. He added that Mr. Capuchino was provided with an empty room so that he could have privacy. Mr. Hall stated that during the appeal hearing they were asked for more documents that were provided later that have not been used since then. He stated that the documents were not requested prior to that date and they did not have a clear listing of what they needed to bring the day of the hearing, so that is why more data was brought forward after the first appeal hearing that was basically denied and which led to this hearing. Mr. Hall stated that Mr. Capuchino knew exactly what day they opened because the only records he could provide were dated after 24 07/18/2005 July 2001. He stated that Mr. Capuchino or his company made the six-month error in the projections. He stated that the name of the business changed and he couldn't do three years of auditing with only two and one-half years of records. Mr. Hall stated that he could provide records showing every transaction since July 2001 and he could summarize the records on a computer printout on a daily, weekly, monthly or annual basis. He stated that what is in dispute is not what they paid, but Mr. Capuchino's interpretation of other fees that they should have collected. Mr. Hall stated that Mr. Capuchino took numbers in that were gross and added tax to them where he collects the tax within the figures that he was working from so they should have been backed out and that is what is reflected on their TOTS. Mr. Weiser stated that given Mr. Capuchino's admission that he was charging the City $100 per hour and the appellants were being charged $250 per hour, he raised the equal protection and due process issues. He stated that they were willing to provide those records on all the appeals, but they did not want to pay for it. Council Member/Commissioner McCammack asked Mr. Hall what kind of questions were asked at the appeal hearing that required him to provide more data. Mr. Hall stated that it would have been data compiled to substantiate things they had talked about that day, but he would have to refer to the minutes to refresh his memory. He added that those documents had been produced by his staff. Council Member/Commissioner McCammack asked Mr. Hall if he owned the business or was he a partner in this business prior to its name change. Mr. Hall stated that he had nothing to do with the previous business which was called the Village Lodge and was owned by Dr. Thomas Lester. He stated that Dr. Lester still owns the property, and that he is currently in a lease -option position. He stated that he took it over on July 31, 2001, with the name Budget Lodge. Council Member/Commissioner McCammack asked Mr. Hall if he understood that he was to state the amount of the room charge and then add the tax to it and show it separately. Mr. Hall stated that he understood that that was one of the arguments —that he needed to provide a receipt with it broken out separately; however, he stated that making that happen accurately and correctly was almost impossible, but that it was possible within the computer environment. Mr. Hall stated that the amount was the same —he was basically paying the tax for the first 30 days. Council Member/Commissioner McCammack repeated her question. 25 07/18/2005 Mr. Hall stated that when he gets his new computer system, he will be able to do that. He understood that that was the request, but other cities are perfectly happy with what he does and they opt for the accuracy of his reports. Mr. Hall stated that he understood they were offered a settlement by the City to reduce all of the interest and penalties and he told Mr. Weiser that he wanted to turn down the offer because he did not believe he owed the tax. Council Member/Commissioner McGinnis asked Mr. Hall if he had hired anyone else to audit these records. Mr. Hall stated that he didn't plan to do so until he knew the outcome of this hearing. Mr. McGinnis asked Mr. Simmons if he knew how much Progressive Solutions charges for the audit. Ms. Buechter stated that the City of San Bernardino has a contract with Progressive Solutions only and does not have a contract with Mr. Capuchino. She stated that she has no idea what the contract is between Mr. Capuchino and Progressive Solutions, but Progressive Solutions does get a contingency at 121/z percent for any additional revenue they find. Mr. Weiser stated that he had misunderstood Mr. Capuchino's testimony that he was charging the City $100 per hour and that the appellants were being asked to pay him $250. He stated that this added to their bias claim. Mr. Simmons stated that the City only wants the tax to which it is entitled. He stated that Mr. Hall admitted in his testimony that he charges the same amount whether there is tax or not, but the tax is only for the first 30 days, and he had indicated that for the first week occupants would pay $140, and even for the sixth week they would pay $140, unless he is showing that he is somehow absorbing the tax himself, which also violates the City's ordinance. In terms of Mr. Hall asking the City to audit his records for free, he stated that Mr. Hall was offered many alternatives and ways to save costs in the letter sent to Mr. Weiser by Mr. Carlyle. The City employs professionals all the time for various things and many times the City gets a different rate than a member of the public could get from that provider for whatever reason, but there is no duty owed to Mr. Hall or to any of Mr. Weiser's clients. The City performed its audit and it has its audit results; and if the appellants wanted to contest those results they could have hired any auditor of their choosing to go through the same records and that could have been presented first to the City Clerk and then to the Council. Mr. Simmons requested that the Mayor and Council uphold the City Clerk's findings in this case and deny the appeal of the Budget Lodge. Mr. Hall added that there is nothing written anywhere that says he couldn't run a special for the first 30 days. 26 07/18/2005 Council Member/Commissioner McCammack made a motion, seconded by Council Member/Commissioner Derry, that the hearing be closed; and that the Mayor and Common Council uphold the decision of the City Clerk and adopt her letter of December 7, 2004, as its findings and conclusions, based upon the back-up information submitted and any additional evidence presented at the hearing. The motion carried by the following vote: Ayes: Council Members/ Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. 34. Appeal hearing regarding the results of a transient lodging tax audit for the Desert Inn Motel (Continued from May 2, 2005) The hearing remained open. Mr. Simmons asked Mr. Weiser if he was willing to stipulate that the testimony given by Mr. Capuchin and Ms. Buechter from the Budget Lodge hearing could be used in the remaining five hearings. Mr. Weiser stated that he would so stipulate, adding the same legal objections he raised above, except in the hearing for the Knights Inn, for which they will present new evidence. Cindy Buechter, Business Registration Supervisor, stated that Mr. Capuchino completed his audit on October 21, 2003, and presented his findings to the City. A hearing was held before the City Clerk on March 29, 2004, at which time she upheld the auditor's findings that additional Transient Lodging Tax, penalties and interest in the amount of $9,808.22 was owed to the City. Mr. Simmons asked Ms. Buechter if the report included as part of the backup materials was in fact the report that was received from Progressive Solutions outlining their audit findings on the amount of tax owed by the Desert In. Ms. Buechter answered in the affirmative. City Attorney Penman advised the Council that they should consider the information presented by Mr. Weiser and Mr. Simmons during their presentations on the Budget Lodge and the information included in the backup, along with Mr. Simmons' brief and the comments on that brief made by Mr. Weiser. No public comments were received. 27 1001 NUM 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 decision of the City Clerk and adopt her letter of December 7, 2004, as its findings and conclusions, based upon the back-up information submitted and any additional evidence presented at the hearing. The motion carried by the following vote: Ayes: Council Members/ Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. 35. Appeal hearing regarding the results of a transient lodging tax audit for the Econo Lodge (Continued from May 2, 2005) The hearing remained open. Cindy Buechter, Business Registration Supervisor, stated that Mr. Capuchino conducted his audit on October 22, 2003, and a hearing was held before the City Clerk on March 29, 2004, at which time she upheld the auditor's findings that additional Transient Lodging Tax, penalties and interest in the amount of $6,868.61 was owed to the City. Mr. Simmons asked Ms. Buechter if the report included as part of the backup materials was in fact the report that was received from Progressive Solutions outlining their audit findings on the amount of tax owed by the Econo Lodge. Ms. Buechter answered in the affirmative. Mr. Weiser and Mr. Simmons stipulated that the information and testimony that was offered on Agenda Item No. 33 relative to the Budget Motel also applied to the Econo Lodge. Mr. Weiser stated that he would so stipulate, adding the same legal objections he raised on the Budget Motel. City Attorney Penman advised that the Council should consider the information presented by Mr. Weiser and Mr. Simmons during their presentations on the Budget Lodge and the information included in the backup, along with Mr. Simmons' brief and the comments on that brief made by Mr. Weiser. No public comments were received. Council Member/Commissioner Longville made a motion, seconded by Council Member/Commissioner Estrada, that the hearing be closed; and that the Mayor and Common Council uphold the decision of the City Clerk and adopt her letter of December 7, 2004, as its findings and conclusions, based upon the back-up information submitted and any additional evidence presented at the hearing. 28 07/18/2005 The motion carried by the following vote: Ayes: Council Members/ Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. 36. Appeal hearing regarding the results of a transient lodging tax audit for the Foothill Motel (Continued from May 2, 2005) The hearing remained open. Cindy Buechter, Business Registration Supervisor, stated that Mr. Capuchino conducted his audit on November 25, 2003, and a hearing was held before the City Clerk on March 29, 2004, at which time she upheld the auditor's findings that additional Transient Lodging Tax, penalties and interest in the amount of $1,120.53 was owed to the City. Mr. Simmons asked Ms. Buechter if the report included as part of the backup materials was in fact the report that was received from Progressive Solutions outlining their audit findings on the amount of tax owed by the Foothill Motel. Ms. Buechter answered in the affirmative. Mr. Weiser and Mr. Simmons stipulated that the information and testimony that was offered on Agenda Item No. 33 relative to the Budget Motel also applied to the Foothill Motel. Mr. Weiser stated that he would so stipulate, adding the same legal objections he raised on the Budget Motel. City Attorney Penman advised that the Council should consider the information presented by Mr. Weiser and Mr. Simmons during their presentations on the Budget Lodge and the information included in the backup, along with Mr. Simmons' brief and the comments on that brief made by Mr. Weiser. No public comments were received. Council Member/Commissioner Estrada made a motion, seconded by Council Member/Commissioner McCammack, that the hearing be closed; and that the Mayor and Common Council uphold the decision of the City Clerk and adopt her letter of December 7, 2004, as its findings and conclusions, based upon the back- up information submitted and any additional evidence presented at the hearing. The motion carried by the following vote: Commissioners Estrada, Longville, McGinnis, McCammack. Nays: None. Absent: None. Ayes: Council Members/ Derry, Kelley, Johnson, 07/18/2005 37. Appeal hearing regarding the results of a transient lodging tax audit for the Knights Inn (Continued from May 2, 2005) The hearing remained open. Cindy Buechter, Business Registration Supervisor, stated that Mr. Capuchino conducted his audit on November 5, 2003, and a hearing was held before the City Clerk on March 29, 2004, at which time she upheld the auditor's findings that additional Transient Lodging Tax, penalties and interest in the amount of $1,523.61 was owed to the City. Mr. Simmons asked Ms. Buechter if the report included as part of the backup materials was in fact the report that was received from Progressive Solutions outlining their audit findings on the amount of tax owed by the Knights Inn. Ms. Buechter answered in the affirmative. Mr. Weiser and Mr. Simmons stipulated that the information and testimony that was offered on Agenda Item No. 33 relative to the Budget Motel also applied to the Knights Inn in addition to whatever Mr. Weiser had to offer specifically on this particular appellant. Mr. Weiser stated that he would so stipulate, adding the same legal objections he raised on the Budget Motel. Pursuant to Resolution No. 2000-279, City Clerk Clark administered an oath to the following individuals that they would provide true and honest testimony: Dinish Patel, General Manager of the Knights Inn, San Bernardino, stated that he was asked by Mr. Capuchino how he accepted his vouchers. He provided Mr. Capuchino with a printout of the vouchers for 2000, 2001 and 2003; however, he stated that Mr. Capuchino did not check the folios, which explain the room tax and the room rent. Mr. Patel provided the folios for three months in 2002, and for all of 2001. (Mr. Penman called a short recess at this time in order to give staff the opportunity to review the documents.) City Attorney Penman advised that the Council should consider the information presented by Mr. Weiser and Mr. Simmons during their presentations on the Budget Lodge and the information included in the backup, along with Mr. Simmons' brief and the comments on that brief made by Mr. Weiser. After reviewing the documents, Mr. Simmons stated that the audit findings were based on the actual registration cards that contained different information than what was shown on the computerized summary that was reviewed in the records. He asked Mr. Capuchino to explain the findings of the audit compared to the record. 30 07/18/2005 Mr. Capuchino stated that they looked at the records and he didn't find any exception there other than what he had seen earlier in his examination of Mr. Patel's records. In fact, he stated that his audit report commended the facility for their records and the fact that they do properly separate the tax from the room rate, but when it comes to social agencies providing lodging for individuals that require that assistance, this hotel, like others in San Bernardino, is not alone. Consistently throughout the City, hotels do not acknowledge that the $40 flat rate they receive from the County has tax included —they make that assumption —but there's nothing contained in the document that's provided by the County or in the document they provide to the tenant that recognizes the tax as being included in the $40 flat rate. When they make the entry into their records, they do separate it, but the City is quite clear in that this has to be related to the occupant that is staying on the premises, and that is where the exception took place. Mr. Simmons asked Mr. Capuchino why the tax was not shown separately on the registration card. Mr. Capuchino stated that that was because the County pays the bill, not the tenant. He stated that they take the tax out of the $40 flat rate when they make their entries into their computer records, which is inconsistent with the requirements of the Code, so they were assessed for the tax based on the $40 flat rate. Council Member/Commissioner McCammack asked Mr. Penman how the City would find out what a motel would charge when relocating people from dwellings that are not up to code. Mr. Penman stated that the City, like the County, has to comply with the City's ordinances. Once an ordinance is passed by the Mayor and Council it becomes a law and under State law it has the full force and effect of the law. The City has to comply with its own Charter and its own ordinances. Just as the City could not waive the TLT when someone is placed in a motel, neither can the County or any other government entity waive the TLT by saying they would only pay $40 for a voucher. When giving vouchers, the County has the right to choose to pay only $40 and the motel owner has to make the decision whether to accept that $40 and pay part of that as the TLT, or pay the TLT out of his or her own pocket, but a motel owner cannot say that the County only gave him $40, so he was just going to take the $40 and was not going to pay the TLT. Mr. Penman stated that he doesn't know what the motels do with the money the City pays them when they relocate someone. He stated that they ask the motel what their rates are and they try to negotiate the best rate they can, but there is nothing they give the motel owner that says they are exempt from the TLT. Motel owners are still expected to comply with the City's ordinances because no one has the authority to make an exception to a City law, State law, or Federal law. Council Member/Commissioner McGinnis asked if they could reduce their price so that the price of the room and the tax is under the $40. 31 07/18/2005 Mr. Capuchino stated that the question of the audit assessment was the requirement of the City of the hotel relating to the tenant and how much of that amount was rent and how much was tax and this was not done in this particular situation. It was recorded after he collected the money into his records, but it was never communicated to the occupant that was staying there. Council Member/Commissioner McGinnis asked if Mr. Patel could reduce the price to $36 and then take $3.60 as the tax as long as he tells the person that that's what he's doing and then he puts it in writing. Mr. Capuchio stated that then it would be documented that way. Council Member/Commissioner McCammack clarified that the owners need to document the price they're charging for the room, they need to document the TLT separately, and then the guest must be given that information. Mr. Weiser requested that the records be admitted into the evidence. Mr: Penman advised the Council that they should receive the records and take a few moments to look at them before they make a decision on how they want to vote. Mr. Simmons objected and stated that the records presented were not relevant to the actual audit as they were not the records reviewed in the audit —they were not the original registration cards —they were computer summaries. Mr. Penman stated that in administrative hearings it was best to accept and consider all the evidence. He recommended that the Mayor overrule the objection made by Mr. Simmons and give the Council time to review the documents that Mr. Weiser asked to be admitted into the record. Council Member/Commissioner Longville asked Mr. Simmons if he could summarize the contents of the files she was being asked to review. Mr. Simmons stated that the documents were a ledger type summary of each guest who paid with a County voucher. (He requested that each Council Member take a folder and follow along with him.) The original registration card viewed by Mr. Capuchin showed $40. When it was entered on the computer ledger it showed rent of $36 and some change and tax of $3.60. He stated that those are not the documents that are given to the occupant of the room. This is done for internal purposes for preparation of his tax return. Mr. Simmons cited Municipal Code Section 355.030(A) Collection of Tax, which states, "Each operator receiving a room rental payment that is subject to the transient lodging tax, at the time of receipt of the room rental payment, shall collect the amount of the tax imposed. The operator shall provide a receipt for payment of the transient lodging tax to the transient." Also, Municipal Code Section 3.55.070(A)(5) Records, states that the 32 07/18/2005 registration card shall show "the room rental to be charged for the lodging space." So if the registration card shows $40, the auditor has to presume that the room rate is $40 as opposed to these records which are done after the room has been rented. Mr. Simmons stated that if the room rental was $40, the occupant should have paid $4 in tax, which is a difference of about $.33 per room times a lot of transactions over a three-year period. Council Member/Commissioner Derry asked if a printed receipt was provided to customers at the end of their stay. Mr. Patel stated that the customer is given a printout when he checks out. Mr. Weiser asked Mr. Capuchino if he was saying that Mr. Patel did not pay the tax or was there a dispute with the amount of the tax. Mr. Capuchino stated that the documents he reviewed showed $40 as a flat fee being recorded as a split between the rent and the tax, but it was not noted on the original documents or the registration card. Mr. Weiser asked who Mr. Patel was supposed to charge for the tax —the transient or the County. Mr. Capuchino stated that by definition the tax is the transient's responsibility. When Federal agencies pay the room rent for the occupant and they claim exemption because they are a federal agency, but the individual staying there is the occupant and by the length of stay he, by definition, is a transient, the tax would be imposed over and above the voucher amount that was paid by the agency. He stated that the tax could be charged to the transient or Mr. Patel could create a document that separates the amount of rent from the tax, and as long as he corresponds that to the individual who is staying there, that would be acceptable. Mr. Weiser asked Mr. Capuchino if he was aware that Mr. Patel could charge the County for the tax. Mr. Capuchin stated that the County is not exempt and could be billed for the tax. He stated that it was not the City's responsibility to dictate operating procedures and that's what he explained to the operators. They only have to comply with the requirements of the City's ordinance, which is specific in its requirements, one of which is that the tax be disclosed to the transient and the amount of the rent separated from the tax. Council Member/Commissioner McCammack stated that she wanted clarification from Mr. Penman in that the law states that when the guest checks in they are required to be told what the room rate is separate from the tax. If the motel owner decides to tell the guest that the room rate is $36 plus some change and then the tax is 10 percent, or $3.60, and then that total is $40, that's his prerogative, but he has to do that upon the check -in of the guest on the written signature card or whatever 33 07/18/2005 they fill out when the guest checks in. So the difference between that and what this particular motel owner did was that he reconciled this after the guest checked in. Mr. Capuchino stated that he didn't know the sequence, all he knew is that the information that was filled out on the documents he saw during his testimony in February did not document that nor was it related to the guest upon check -in. Mr. Weiser stated that he wanted to make an objection to the effect that he took serious issue with the City Attorney's analysis that there is even a tax owed. He stated that the County is paying it and he didn't think you could tax the County. He stated that Mr. Simmons made a mistake when he cited the present code and his definition of a transient occupancy is also tied into consideration of rent and who pays the rent. Mr. Weiser stated that there is also a section for exemptions that you cannot tax anyone who it is beyond your power to tax and he didn't believe the County is a person defined as the person subject to the tax. He stated that these are tax exempt transactions to begin with. Mr. Patel did in fact pay them, but they are not persons as defined under the City's Code and they would have an exemption as a matter of law. -Mr. Weiser stated that there was no evidence contradicting that Mr. Patel did in fact tell the guest at some point the amount of the tax and how it is broken up. He didn't see what the difference was in telling them in the beginning or telling them at the end of the first day —they were still informed. Mr. Weiser stated that these were occupants being paid by the County and these are people who cannot afford apartments and they are in fact being paid by the County. He stated that they are not able to pay the tax themselves, and if you are going to say that you can impose the tax on these people, you are in fact discriminating on the matter of housing. Mr. Penman stated that the ordinance is clear that it is the transient lodger who is taxed. He stated that he knows for a fact that the County pays the City's Transient Occupancy Tax when they put up witnesses in the Radisson Hotel who are going to testify in court. He stated that the argument that you cannot tax the County is irrelevant because the tax is on the transient and it is up to the motel owner to decide whether or not to accept the amount of money the County is willing to pay for a person. If they choose to accept that amount, then they owe the tax that the ordinance prescribes. He stated that you're not taxing the County, you're taxing the occupant of the room. Mayor/Chairman Valles stated that in looking at the printouts, it appears that from the $40 Mr. Patel gets from the County, he has broken it down to $36.36 for the room and $3.64 for the tax. Mr. Patel stated that if they charge these people $4 in tax they will simply move on to the next City because they don't have money to spare. 34 07/18/2005 KI:I 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 decision of the City Clerk and adopt her letter of December 7, 2004, as its findings and conclusions, based upon the back-up information submitted and any additional evidence presented at the hearing. The motion carried by the following vote: Ayes: Council Members/ Commissioners Estrada, Longville, Kelley, McCammack. Nays: Council Members/Commissioners McGinnis, Derry. Absent: Council Member/ Commissioner Johnson. Appeal hearing regarding the results of a transient lodging tax audit for the Terrace Motel (Continued from May 2, 2005) The hearing remained open. Mr. Simmons stated that he had been informed by Cindy Buechter, Business Registration Supervisor, that the Terrace Motel paid the tax, including penalties and interest. Council Member/Commissioner McCammack made a motion, seconded by Council Member/Commissioner Estrada, to table the matter. (No vote was taken at this time.) Mr. Weiser stated that the appellants could still request a refund even though payment was made under protest. Cindy Buechter, Business Registration Supervisor, stated that Mr. Capuchino conducted his audit on November 12, 2003, and a hearing was held before the City Clerk on March 29, 2004, at which time she upheld the auditor's findings that additional Transient Lodging Tax, penalties and interest in the amount of $375.45 was owed to the City. Mr. Simmons asked Ms. Buechter if the report included as part of the backup materials was in fact the report that was received from Progressive Solutions outlining their audit findings on the amount of tax owed by the Terrace Motel. Ms. Buechter answered in the affirmative. Mr. Simmons asked the Mayor and Council to uphold the amount of the assessment including tax, penalties and interest, and deny the appeal on the Terrace Motel. 35 07/18/2005 Mr. Weiser and Mr. Simmons stipulated that the information and testimony that was offered on Agenda Item No. 33 relative to the Budget Motel also applied to the Terrace Motel. Mr. Weiser stated that he would so stipulate, adding the same legal objections he raised on the Budget Motel. Council Member/Commissioner McCammack made a substitute motion, seconded by Council Member/Commissioner Estrada, that the hearing be closed; and that the Mayor and Common Council uphold the decision of the City Clerk and adopt her letter of December 7, 2004, as its findings and conclusions, based upon the back- up information submitted and any additional evidence presented at the hearing. The motion carried by the following vote: Ayes: Council Members/ Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. 39. Public hearing - resolution ordering vacation - proposed vacation of the east/west street lying between "D" Street and Stoddard Avenue (Continued from July 5, 2005) 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). Mayor/Chairman Valles stated that staff recommended that this item be continued to the next Council meeting. Council Member/Commissioner McGinnis made a motion, seconded by Council Member/Commissioner Estrada, that the matter be continued to the Council/ Commission meeting of August 1, 2005. The motion carried by the following vote: Ayes: Council Members/ Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. 40. Workshop for the Capital Improvement Program (CIP) - to review the Five- year Capital Improvement Program - Fiscal Years 2005/2006 - 2009/2010 - EDA Boardroom (Continued from July 5, 2005) 36 07/18/2005 The following documents were submitted into the record: City of San Bernardino, 2005106-2009110 Capital Improvements Program General Buildings, Streets and Street Lighting, Sewers, Storm Drains, Traffic Controls, and Parks and Recreation; Capital Improvement Public Services Street Division Presentation; and 2005-2010 Capital Improvements Program, City of San Bernardino, Parks, Recreation and Community Services, June 2005. James Funk, Director of Development Services, stated that preparing a CIP is a year-round process for staff that appears from the outside to be an objective process, but there are considerable subjective and judgmental components that enter into the process. He stated that this year's CIP contains 345 projects, and the budget totals over $44,400,000, compared to last year's CIP budget which totaled $35,500,000. Mr. Funk stated that included in this year's CIP is $23,450,000 in carryover funds for on -going projects including pavement rehabilitation projects that have been completed, but have not yet been closed out by the Finance Department. He added that more than 20 of these carry-over projects were awarded last fiscal year and are either about ready to get under construction or are under construction at the present time. He stated that the largest carry-over project is SS05-25, the Victoria Avenue Improvement Project, totaling over $5 million in carryover funds. A design contract was awarded to Engineering Resources of Southern California at the Council meeting of January 10, 2005, and completion of the design is expected in October 2005. Also included in this fiscal year's CIP is anticipated revenue totaling $21 million, almost $10 million of which is anticipated to come from a proposed State infrastructure loan. Representatives from Development Services; Facilities Management; Public Services; and Parks, Recreation and Community Services presented an overview of current, recently completed, and proposed CIP projects in their respective areas. Council Member/Commissioner Longville made a presentation of several streets in the Second Ward that are in dire need of repair. No action was taken. 41. Authorization to establish a three-way stop at the intersection of Crestview Avenue and 18' Street Council Member/Commissioner Longville made a motion, seconded by Council Member/Commissioner McGinnis, that the Mayor and Common Council authorize the establishment of a three-way stop at the intersection of Crestview Avenue and 18' Street subject to the results of the traffic counts as noted in the staff report dated July 13, 2005. The motion carried by the following vote: Commissioners Estrada, Longville, McGinnis, McCammack. Nays: None. Absent: None. Ayes: Council Members/ Derry, Kelley, Johnson, 37 07/18/2005 COMMUNITY DEVELOPMENT COMMISSION Staff Present Mayor/Chairman Valles; Council Members/Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson, McCammack; City Attorney Penman, City Clerk Clark, Economic Development Agency Executive Director Van Osdel. Absent: None. R42. Public hearing - Disposition and Development Agreement - TELACU Development, LLC (40' Street Redevelopment Project Area) Resolution of the Mayor and Common Council of the City of San Bernardino approving the 2005 49`s Street Single Family Residential Disposition and Development Agreement by and between the Redevelopment Agency of the City of San Bernardino ("Agency") and TELACU Development, LLC ("Developer") (TELACU 49th Street New Homes Project - 40'h Street Redevelopment Project Area). (R42A) Resolution of the Community Development Commission of the City of San Bernardino approving and authorizing the Executive Director to execute the 2005 49`s Street Single Family Residential Disposition and Development Agreement by and between the Redevelopment Agency of the City of San Bernardino ("Agency") and TELACU Development, LLC ("Developer") (TELACU 49' Street New Homes Project - 40`s Street Redevelopment Project Area.). (R42B) Note: No backup materials were distributed. Mayor/Chairman Valles stated that staff requested that this item be continued to the next Council meeting. Council Member/Commissioner McGinnis made a motion, seconded by Council Member/Commissioner Estrada, that the matter be continued to the Council/ Commission meeting of August 1, 2005. The motion carried by the following vote: Ayes: Council Members/ Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. R43. Public hearing - Disposition and Development Agreement by and between the Redevelopment Agency of the City of San Bernardino and Arrowhead Central Credit Union (Central City South Redevelopment Project Area) 38 07/18/2005 Resolution of the Mayor and Common Council of the City of San Bernardino approving the 2005 Disposition and Development Agreement by and between the Redevelopment Agency of the City of San Bernardino ("Agency") and the Arrowhead Central Credit Union, A California Corporation ("Developer") — (Central City South Redevelopment Project Area). (R43A) 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") to execute the 2005 Disposition and Development Agreement by and between the Agency and Arrowhead Central Credit Union, A California Corporation ("Developer") — (Central City South Redevelopment Project Area). (R43B) Note: No backup materials were distributed. Mayor/Chairman Valles stated that staff requested that this item be continued to September 6, 2005. Council Member/Commissioner Johnson made a motion, seconded by Council Member/Commissioner Estrada, that the matter be continued to the Council/ Commission meeting of September 6, 2005. The motion carried by the following vote: Ayes: Council Members/ Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. 44. Appeal of Planning Commission denial of a request to subdivide 0.55 acre into two lots (Continued from July 5, 2005) Mayor/Chairman Valles opened the hearing. Valerie Ross, City Planner/Deputy Director of Development Services, provided highlights of the staff report. She stated that this parcel map originally was submitted as a three -lot parcel map, but was later amended by the developer to include just two lots. Ms. Ross stated that based on their review of the application and their knowledge of the area, the Planning Commission determined that the proposed parcel map of this subdivision was not consistent with the General Plan and did not retain the scale and character of the existing residential neighborhood. She stated that the lot adjacent to this lot and those that are northerly of Yucca Drive are similarly sized. The lots that are a little bit smaller are on the south side of Yucca Drive. She stated that this particular lot had a house on it that was burned during the "Old Fire" and it was staffs understanding that the original owners did not wish to rebuild and sold the lot. Ms. Ross stated that she wanted to point that out because staff did not believe that a subdivision was necessary in order to make this developable or feasible. 39 07/18/2005 Ms. Ross stated that after additional review and after hearing the Planning Commission's comments, staff recommended that the Mayor and Council deny the appeal and uphold the Planning Commission's denial of Tentative Parcel Map No. 16880, based upon the Findings of Fact in the April 13, 2005 memorandum to the Planning Commission. Pursuant to Resolution No. 2000-279, City Clerk Clark administered an oath to the following individuals that they would provide true and honest testimony: Mike Duffy, Project Engineer, stated that the creation of two parcels would average roughly 12,000 square feet. He stated that the five parcels that are the closest in the same block run about 14,000 square feet and all the parcels on the two blocks south of the subject property run between 9,000 and 11,000 square feet. He stated that there are half -acre parcels spread out to the north and northeast of this parcel and there are only about six of them in these two blocks. Mr. Duffy stated that because of frontage and depth requirements, he did not believe this subdivision would set a precedent where all these lots would change in size and shape. He stated that the subject property meets all the minimum requirements and he felt it would be a good fit for this kind of subdivision. Jesse Corral, appellant and one of the property owners, stated that their intention was to subdivide the lot and build two homes that would add value to the existing homes. Michael Coppess, attorne}4 representing the owners, stated that the subject lot is in the RS, Residential Suburban, land use district, which allows single-family residential development on lots of 7,200 square feet. He stated that the initial proposal to split the property into three lots was well within the zoning designation for this site. Due to staff s recommendation the proposal was changed, although it was his opinion that the initial proposal for three lots was consistent with the General Plan and would meet all General Plan and Development Code requirements for the site. Mr. Coppess stated that as he read the Planning Commission staff report he agreed with staffs recommendation that the requested lot split be granted, and in doing so, they found that there was General Plan consistency. Ms. Ross stated that several homes were lost in this area due to the "Old Fire" and all of them are going in on existing lots of record. She stated that prior to the "Old Fire" and today this is still a stable neighborhood and it is not a neighborhood in transition, which is one of the factors the Planning Commission looked at in recommending denial. Ms. Ross stated that just because there is a vacant parcel because a house burned down, they didn't believe that was reason enough to further subdivide it as opposed to replacing it. The policies and guidelines that the Council has adopted to encourage fire rebuilds as far as no fees for any City services, even if it is an increase in the footprint size from what was there 40 07/18/2005 previously, the Council has indicated their desire to maintain and help re-establish stable neighborhoods. Jane Sneddon, 3530 Camellia Drive, San Bernardino, CA, asked that the Council uphold the Planning Commission's decision of April 5, 2005, and deny the lot split at the corner of Yucca and Camellia Drive in the Del Rosa Estates area. She stated that if the "Old Fire" had not ravaged the area, this lot would still be occupied by a single-family residence and she felt that a speculator should not be allowed to come in and change the character of the neighborhood. Ms. Sneddon stated that several of the lots in the area are as large if not larger than the lot in question, but if the Council grants this lot split a precedent will be set that would allow other lots to be split and that would be extremely detrimental to the existing homes. Evelyn Alexander, President of the Del Rosa Neighborhood Action Group, P.O. Box 30491, San Bernardino, CA, stated that she had been asked by the members living in the Del Rosa Estates to speak in opposition of the proposed subdivision of the properties at Yucca and Camellia. She asked that the Council follow the recommendation of the Planning Commission and deny the subdivision of the property. George Gorian, 3840 El Camino Drive, San Bernardino, CA, stated that he believed this action would set a precedent and requested denial of the project. Martin Chandler, 1520 Yucca Drive, San Bernardino, CA, stated that this request was not based upon a need to rebuild —it was based solely upon greed. He stated that he believed the decisions formed today would determine not only the number of houses that would be built on the lot in question, but all the other lots on the street as well. He stated that the present average lot size in his neighborhood is 19,500 square feet, much larger than that proposed by the developers. Mr. Chandler stated that the potential is for the creation of an unreasonable doubling of the number of houses on this small street including the properties adjacent to and across the street from his own home. He stated that the developers are going to cram these houses onto lots where once only a single home stood, then they are going to collect their profits and move on leaving the residents with the overcrowding and the congestion. Mr. Chandler stated that one of his biggest worries is with street congestion because cars will be forced to park on the street, which will be a liability, it will be unsafe, and it is completely unacceptable to the residents. Mr. Chandler stated that he didn't think it was morally right for the City Council to allow the character of their well -established neighborhood to be destroyed forever simply because they happen to be victims of the "Old Fire". These lots once only had a single home on them and that's the way they want to keep it. He noted that the Planning Commission decided to change their original recommendation after hearing the concerns of the residents, and he hoped the City Council would show the same compassion and wisdom in supporting their decision. Mr. Chandler stated that his 41 07/18/2005 family and neighbors have worked for almost two years to clean, replant and rebuild after the "Old Fire," and requested that they not be made to suffer from another disaster from which there would be no recovery. Don White, resident of Del Rosa Estates for 40 years, thanked the Planning Commission for their decision and hoped the City Council felt the same way. Deputy City Attorney Empeno noted that attached to the staff report in the backup marked Exhibit 5 was a memorandum to the Planning Commission dated April 13, 2005, reciting the seven findings that the City Council had to make, and he advised that the Council had to make all seven findings if they wanted to approve this Tentative Parcel Map. He stated that in the above memo, Planning staff found two findings, Nos. 2 and 4, which, the Planning Commission agreed on a 6 to 0 vote, could not be made by the Planning Commission. Mr. Empeno stated that contrary to the advice given by the attorney representing the applicant/developer in this matter, the City Council has the discretion to support the Planning Commission's decision and deny this Tentative Tract Map. Finding No. 2 requires that the Council find that this subdivision is consistent with the General Plan, and as stated in Finding No. 2: "The project is not consistent with Objective 1.8, which requires subdivisions to retain the scale and character of existing residential neighborhoods. Existing parcels to the north (on the same block) and to the east average between 1/3- and 1h-acre each. Therefore, the 'proposal will not retain the scale and character of the properties that are adjacent to the proposed subdivision." Mr. Empeno stated that Finding No. 4 is similar in stating that "the site is not physically suitable for two single-family lots because the proposed subdivision would create two lots that would be approximately half the size of existing parcels on the same block. Therefore, the proposed subdivision will not have a density and physical design that would be compatible with adjacent properties on the same block." Mr. Empeno stated that staff was in agreement with the Planning Commission's findings and recommended that the Council not make findings in support of this subdivision. Mr. Coppess responded by stating that the City has three zoning categories: Estate, RL, and RS and that zoning ordinances are enacted to be consistent with the General Plan. He stated that this area was not zoned for estates, it was not zoned RL, it was zoned RS, and anyone coming to this area would expect RS designated standards to be applied. Mr. Coppess stated that this project is many thousands of square feet over the minimum square foot requirement for RS and it would even meet the RL requirements if it were rezoned as a means to block some of the concerns that have been raised. He stated that he has served on the Planning Commission in his hometown for six years, has been a neighborhood association president, has represented similar concerns as were expressed here today, but never with regard to a proposed single-family home on a 12,000 square foot lot. Mr. Coppess stated that granted this neighborhood has seen more than its fair share 42 07/18/2005 of tragedy, but when you boil this all down, this is a project that meets all zoning requirements, lot area requirements, lot width requirements, depth and lot coverage requirements, and will not require any exceptions or variances whatsoever. He requested that the application be approved. Council Member/Commissioner Derry stated that he was probably one of the most pro -development members of the Council, but with all the issues that have arisen in the last number of years and particularly after the "Old Fire," he felt it was important to keep the character of a community intact especially after a disaster of this type. He stated that he understood the concerns of the developer, but in this case he believed this would change the character and nature of the community and stated that he supported the Planning Commission's decision. Council Member/Commissioner Kelley stated that he also understood the developer's point of view, but he felt that changing the character of the neighborhood was inappropriate at this time. Council Member/Commissioner McCammack made a motion, seconded by Council Member/Commissioner Johnson, that the hearing be closed; and that the Mayor and Common Council deny the appeal and uphold the Planning Commission's denial of Tentative Parcel Map No. 16880, based upon the April 13, 2005 memorandum to the Planning Commission. The motion carried by the following vote: Ayes: Council Members/ Commissioners Estrada, Longville, McGinnis, Derry, Kelley, Johnson, McCammack. Nays: None. Absent: None. 45. Public Comments Christina M. Marquez, 1494 W. 9' Street, San Bernardino, CA, stated that she had called the Police Department to report the use of illegal fireworks at 1488 W. 9' Street on July 3, and again on July 4 after a police officer had driven by, talked to the individuals, confiscated the fireworks, and then left without writing a citation. She stated that after the officer left, and from sundown to midnight, these same individuals ignited illegal fireworks. Ms. Marquez stated that as she sat in her front yard she noticed several large fireworks displays in the 1300 block of W. 8' Street, the 1500 block of W. Union Street, and the 1400 block of W. Temple. She stated that a vacant, overgrown lot behind the residence at 1488 W. 9' Street had ignited and the Fire Department had to be dispatched. She wondered where the additional officers were that should have been there writing citations. Ms. Marquez stated that she was disappointed that they weren't there to help her secure her home and keep her neighborhood safe. 43 07/18/2005 46. Adjournment At 8:50 p.m., the meeting adjourned. The next joint regular meeting of the Mayor and Common Council/Community Development Commission is scheduled for 1:30 p.m., Monday, August 1, 2005, in the Council Chambers of City Hall, 300 North "D" Street, San Bernardino, California. No. of Items: 46 No. of Hours: 7 RACHEL G. CLARK City Clerk Bl J�wai ,i.� � Linda Sutherland Deputy City Clerk 44 07/18/2005