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HomeMy WebLinkAbout06-Council Minutes CITY OF SAN BERNARDINO 300 N. "D" Street San Bernardino, CA 92418 Website: www.sbcity.org Mayor PoJrick J. Morris CouncU Members: Esther Estrada Dennis J. Boxter Tobin Brinker 4' Ward - Vacant Chas Kelley Rikke Van Johnson Wendy McCammack ~ MINUTES MAYOR AND COMMON COUNCIL AND COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO JOINT REGULAR MEETING JANUARY 20,2009 COUNCIL CHAMBERS The joint regular meeting of the Mayor and Common Council and Community Development Commission of the City of San Bernardino was called to order by Mayor/Chairman Morris at 1:36 p.m., Tuesday, January 20, 2009, in the Council Chambers of City Hall, 300 North "D" Street, San Bernardino, California. Roll Call Present: MayorlChairman Morris; Council Members/Commissioners Estrada, Baxter, Kelley, Johnson, McCammack; City Attorney Pemnan, Interim City Manager Weinberg, City Clerk Clark. Absent: Council MemberlCommissioner Brinker. Vacant: Fourth Ward Council Member/Commissioner Brinker arrived at 3:26 p.m. 1. Closed Session Pursuant to Government Code Section(s): A. Conference with legal counsel - existing litigation - pursuant to Government Code Section 54956.9(a): 01/20/2009 In the Matter of the Industrial Disability Retirement Application of Garrett Zirnmon and the City of San Bernardino - OAH Case No. 2007080890; San Bernardino Public Employees Association v. City of San Bernardino - Case No. LA-CE-455-M; Frank Ing;ram, III; et aI. v. City of San Bernardino, Dave Green - USCA No. 07-56616, USDC No. CV-05-00925 VAP/CFE; City of San Bernardino Municipal Water Department v. The United States Department of the Army - U.S. District Court Case Numbers: CV 96- 8867 & CV 96-5205; State of California v. City of San Bernardino/Georg;e N. Voss, et aI. - San Bernardino County Superior Court Case No. CVISS 811831. B. Conference with legal counsel - anticipated litigation - significant exposure to litigation - pursuant to subdivision (b) (1), (2), (3) (A-F) of Government Code Section 54956.9: Inland Communities Corp. v. City of San Bernardino (Paradise Hills) California Aviation Services, Inc. City of San Bernardino C. Conference with legal counsel - anticipated litigation - lrutJatJon of litigation - pursuant to subdivision (c) of Government Code Section 54956.9: City of San Bernardino v. California State University City of San Bernardino v. American Home Mortgage, (4858 Cristy Avenue, San Bernardino, CA (APN# 262-291-17-0000)) D. Closed Session - personnel - pursuant to Government Code Section 54957: City Manager recruitment E. Closed session with Chief of Police on matters posing a threat to the security of public buildings or threat to the public's right of access to public services or public facilities - pursuant to Government Code Section 54957. 2 01/20/2009 F. Conference with labor negotiator - pursuant to Government Code Section 54957.6: Fire Safety Unit Police Safety Unit Police Management Unit Management/Confidential Mid-Management Unit General Unit G. Conference with real property negotiator - pursuant to Government Code Section 54956.8: 1. Property Address: 4858 North Cristy Avenue, San Bernardino APN: 0262-291-17 Negotiating Parties: Emil A. Marzullo, Interim Executive Director, on behalf of the Redevelopment Agency, and an authorized representative on behalf of American Home Mortgage Servicing, Inc. Under Negotiation: Purchase price, terms and conditions. City Attorney Penman announced that the following additional case would be discussed in closed session: Under Agenda Item No. 18, significant exposure to litigation: Agenda Item No. 40. Reading of Resolutions & Ordinances Deputy City Clerk Sutherland read into the record the titles of all the resolutions and ordinances on the regular agenda of the Mayor and Common Council and Community Development Commission. Moment of Silence Mayor Morris extended condolences to the family and requested a moment of silence in memory of retired City employee Janet Ward. Invocation/Pledge of Allegiance The invocation was given by Minister Robert W. Strong of Ecclesia Christian Fellowship. The Pledge of Allegiance was led by Jennifer Chavarin, a student at Ramona Alessandro School. 3 01/20/2009 2. Appointments A. Lois Kipp - Animal Control Commission - Council Member McCammack B. Councilman Rikke Van Johnson - Inland Valley Development Agency - Mayor Morris C. Councilman Tobin Brinker - Inland Valley Development Agency (Alternate) - Mayor Morris D. Councilman Rikke Van Johnson - San Bernardino International Airport Authority (Alternate) - Mayor Morris Council MemberlCommissioner Kelley made a motion, seconded by Council MemberlCommissioner Baxter, that the appointments A-D, as requested by Council Member McCammack and Mayor Morris, be approved. The motion carried unanimously with the Fourth Ward vacant. 3. Presentations & Proclamations Council MemberlCommissioner McCammack publicly thanked and commended Susan Benevy, not only for volunteering to serve on the Animal Control Commission, but also for serving as chair of that commission for several years. Council MemberlCommissioner Johnson presented Certificates of Recognition to the members of the California State University San Bernardino Women's Volleyball Team who captured the CCAA Title, came in third in the NCAA West Regional Championship, and was the 2008 NCAA National Runner-up. Head Coach Kim Cherniss thanked the Mayor and Council for pointing out just how much the community cares about the team's endeavors and how hard the girls worked. Rabbi Hillel Cohn, Chairman of the Bicentennial Ad Hoc Committee, presented the committee's annual report to the Mayor and Council, and expressed appreciation to Bob D' Amato who recently resigned from the Commission. Council MemberlCommissioner Kelley presented Citizen of the Month awards to Sister Camillus Gavigan and Sister Maura Redington in honor of the lifetime of support and leadership they have given the community. Council MemberlCommissioner Kelley presented a Proclamation to Claudia Moerl, a foreign exchange student from Germany, commending her humanitarian and academic accomplishments and appointing her an official Ambassador of the City of San Bernardino. 4 01/20/2009 The following individuals were presented a service pin award by Mayorl Chairman Morris in recognition of their many years of dedicated service to the City: Name Bonnie Landa Stephanie Battle Monica Flores Michael Potts Deparunent Animal Control Police Police Police Years of Service 25 20 20 30 Milind Joshi, Director of Integrated Project Management with Onmitrans, and A vrum Loewenstein, Parsons Transportation Group Project Manager, made a Power Point and video presentation and answered questions posed by members of the Common Council regarding the sbX Bus Rapid Transit Project. 4. Announcements Announcements were made by members of the Common Council, elected officials, and a representative from the Chamber of Commerce regarding various civic, community, and chamber events and activities. 5. Waive Full Reading of Resolutions & Ordinances Council MemberlCommissioner Johnson made a motion, seconded by Council MemberlCommissioner Baxter, that full reading of the resolutions and ordinances on the regular agenda of the Mayor and Common Council and Community Development Commission, be waived. The motion carried unanimously with the Fourth Ward vacant. 6. Council Minutes Council MemberlCommissioner Johnson made a motion, seconded by Council MemberlCommissioner Baxter, that the minutes of the following meeting(s) of the Mayor and Common CouncillCommunity Development Commission of the City of San Bernardino, be approved as submitted in typewritten form: December 1, 2008. The motion carried unanimously with the Fourth Ward vacant. 5 o l/20/2009 7. Claims & Payroll Council Member/Commissioner Johnson made a motion, seconded by Council Member/Commissioner Baxter, that the claims and payroll and the authorization to issue warrants as listed in the memorandum dated January 8, 2009, from Barbara Pachon, Director of Finance, be approved. The motion carried unanimously with the Fourth Ward vacant. 8. Personnel Actions Council Member/Commissioner McCammack requested that she be provided with documentation that shows the breakdown of the $637,000, which is the projected total cost for personnel and equipment necessary to implement in-house graffiti removal and property abatement services. Council Member/Commissioner Baxter made a motion, seconded by Council Member/Commissioner Brinker, that the personnel actions, as submitted by the Chief Examiner, dated January 16, 2009, in accordance with Civil Service rules and Personnel policies adopted by the Mayor and Common Council of the City of San Bernardino, be approved and ratified. The motion carried unanimously with the Fourth Ward vacant. 9. RES. 2009-1 - Resolution of the City of San Bernardino amending Resolution 2008-376 entitled in part, "Resolution...amending conflict of interest code...," by amending Appendix A to add, delete and change the titles of various positions within departments of the City which must me conflict of interest statements (Statements of Economic Interests, Form 700). Council Member/Commissioner Johnson made a motion, seconded by Council Member/Commissioner Baxter, that said resolution be adopted. Resolution No. 2009-1 was adopted unanimously with the Fourth Ward vacant. 10. Budget Amendment to fund Police helicopter services through June 30, 2009 Council Member/Commissioner McCammack stated that due to the fact that the City's budget shortfall for this fiscal year is predicted to be $8-12 million, she could not support spending $278,000 on a helicopter. Mark Weinberg, Interim City Manager, responded by saying that this is an unaffordable expenditure; however, the City has few other alternatives. He stated that during the budget deliberations at the outset of this fiscal year the Council attempted to rescind this agreement, but the City Attorney advised that it was probably best to reinstate the agreement because there was no clear language that would allow it to be severed. 6 01/20/2009 Mr. Weinberg stated that the Council then directed him to find out whether they could reduce their obligation this year by trying to negotiate a reduction in the number of hours the helicopter is flown over the City and, perhaps as an incentive, lengthen the agreement by an additional two years. He stated that staff had some success in negotiating a modified agreement with Mr. Bell that would have followed the direction of the Council, which was to reduce the hourly rate the City was being charged, reduce the number of hours being flown from 25 contractually (which he voluntarily reduced to 20) down to 12; and in return, because that was a compromise Mr. Bell felt he did not have to make, the City asked Mr. Bell if he would be more amenable to that agreement if the City lengthened the term of service another two years. Mr. Weinberg stated that that would have reduced the hourly cost of flying by 10 percent, from $575 to $440, would have reduced the number of hours, and more importantly, would have reduced the actual monthly expenditures from $41,600 to $22,000. As close as staff got to bringing that new agreement back to the Council, they kept getting additional [manciaI information that made them wonder how prudent that would be. Mr. Weinberg stated that if they cannot sever the contract, staff would suggest that Mr. Bell be paid for his services through June 30, and that they not exercise any option to lengthen the agreement by two years. The net savings would be such that the City could immediately reduce the monthly charge from $41,600 to $22,000, but over the extended term of another two years of service there would be a net increase cost to the City of $375,000. He stated that it is staff's recommendation that they pay for services through June 30 of this year, and if for some reason the budget picture improves, or the Council wishes to contract for more aviation services, they could do that. Council Member/Commissioner Estrada requested as a precautionary measure that staff begin to put together the necessary data so that when they start looking at next year's expenditures they will have information that clearly explains their options. Council Member/Commissioner Kelley made a motion, seconded by Council Member/Commissioner Brinker, that the Director of Finance be authorized to amend the FY 2008/2009 adopted budget by appropriating $278,000 from unaIlocated Measure Z funds to Account No. 001-223-5502 to provide helicopter services through June 30, 2009. The motion carried. Ayes: Estrada, Baxter, Brinker, Kelley, Johnson. Nays: McCammack. Vacant: Fourth Ward. II. RES. 2009-2 - Resolution of the City of San Bernardino authorizing and directing the execution of a Grant of Easement to Southern California Edison across City owned property located at 1298 N. Pennsylvania Avenue, known as Anne ShirreIls Park (APN 0143-211-11). 7 o l/20/2009 Council Member/Commissioner Johnson made a motion, seconded by Council Member/Commissioner Baxter, that said resolution be adopted. Resolution No. 2009-2 was adopted unanimously with the Fourth Ward vacant. 12. RES. 2009-3 - Resolution of the City of San Bernardino amending Resolution No. 3985 entitled, in part, "A Resolution...prohibiting parking upon certain designated streets, alleys, or portions thereof..." to establish a no parking any time zone on Lincoln Drive between Highland Avenue and the terminus of Lincoln Drive approximately one-thousand two hundred feet south of Twenty-first Street. Council Member/Commissioner Johnson made a motion, seconded by Council Member/Commissioner Baxter, that said resolution be adopted. Resolution No. 2009-3 was adopted unanimously with the Fourth Ward vacant. 13. RES. 2009-10 - Resolution of the City of San Bernardino amending Resolution No. 3985 entitled, in part, "A Resolution...prohibiting parking upon certain designated streets, alleys, or portions thereof..." to establish a no parking any time zone on the west side of Sierra Way between Base Line Street and three hundred twenty-five feet north of Base Line Street. Council Member/Commissioner Baxter made a motion, seconded by Council Member/Commissioner Brinker, that said resolution be adopted. Resolution No. 2009-10 was adopted unanimously with the Fourth Ward vacant. 14. RES. 2009-4 - Resolution of the City of San Bernardino amending Resolution No. 3985 entitled, in part, "A ResoIution...prohibiting parking upon certain designated streets, alleys, or portions thereof..." to establish a no parking any time zone on the north side of Cooley Avenue between two hundred thirty feet west of Sunnyside Avenue and five hundred forty-five feet west of Suunyside Avenue. Council Member/Commissioner Johnson made a motion, seconded by Council Member/Commissioner Baxter, that said resolution be adopted. Resolution No. 2009-4 was adopted unanimously with the Fourth Ward vacant. 15. Determination of Public Convenience or Necessity for a Type 20 Alcoholic Beverage Control (ABC) license (Ocr-sale Beer & Wine) for the 3,020 square foot service station and convenience store proposed at the northeast comer of Palm A venue and Kendall Drive Council Member/Commissioner Johnson made a motion, seconded by Council Member/Commissioner Baxter, that the Mayor and Common Council determine that the public convenience or necessity will be served by the proposed license 8 01/20/2009 and direct the Development Services Department to send a letter to the Department of Alcoholic Beverage Control to support issuance of a Type 20 ABC license for a 3,020 square foot service station and convenience store proposed at the northeast corner of Palm Avenue and Kendall Drive. The motion carried unanimously with the Fourth Ward vacant. 16. RES. 2009-11 - Resolution of the Mayor and Common Council of the City of San Bernardino authorizing the execution of a parking agreement with the Consulate of Mexico for two parking spaces. Council Member/Commissioner McCammack made a motion, seconded by Council Member/Commissioner Brinker, that said resolution be adopted. Resolution No. 2009-11 was adopted unanimously with the Fourth Ward vacant. 17. RES. 2009-5 - Resolution of the Mayor and Common Council of the City of San Bernardino authorizing the execution of an Agreement for Services and issuance of a purchase order to Texsun Construction for Fire Station 224, Lath and Plaster Construction per Plans and Special Provisions No. 12551. Council Member/Commissioner Johnson made a motion, seconded by Council Member/Commissioner Baxter, that said resolution be adopted; and that the Director of Finance be authorized to amend the FY 2008/2009 budget by appropriating an additional $140,000 from the Fire Development Impact Fee Funds in Fiscal Year 2008/2009 to Account No. 262-482-5504-7805, in accordance with the staff report dated December 29, 2008, from Jim Sharer, Director of Facilities Management. The motion carried and Resolution No. 2009-5 was adopted unanimonsly with the Fourth Ward vacant. 18. Item deleted. 19. Authorize the Director of Finance to amend the Parks, Recreation and Community Services FY 2008/09 budget and transfer $80,000 from landscape contracts (Account No. 001-382-5506) to materials and supplies (Account No. 001-382-5111); reduce landscape contracts (Account No. 001-382-5506) by $100,000 and reduce EDA revenue reimbursement (Account No. 001-000- 4670) by $100,000, with no net impact to the City's budget Council Member/Commissioner Johnson made a motion, seconded by Council Member/Commissioner Baxter, that the Director of Finance be authorized to amend the Parks, Recreation and Community Services FY 2008/09 budget and transfer $80,000 from landscape contracts (Account No. 001-382-5506) to materials and supplies (Account No. 001-382-5111), with no net impact to the City's budget; and that the Director of Finance be authorized to amend the Parks, 9 01/20/2009 Recreation and Community Services FY 2008/09 budget and reduce landscape contracts (Account No. 001-382-5506) by $100,000, and to also reduce EDA revenue reimbursement (Account No. 001-000-4670) in a like amount of $100,000, with no net impact to the City's budget. The motion carried unanimously with the Fourth Ward vacant. 20. RES. 2009-6 - Resolution of the Mayor and Common Council of the City of San Bernardino authorizing the Interim City Manager to execute Amendment No.1 to the Vendor Service Agreement with Service Scape, and the Director of Finance to increase the following contracts in an amount not to exceed $64,000 in the aggregate: Contract Nos. 09-050 (Area "A" - $12,500); 09-051 (Area "B" - $34,500); 09-054 (Area "E" - $6,700); and 09- 055 (Area "C" - $10,300) issued to Service Scape to cover the costs of supplemental work in Landscape Maintenance District Areas "A", "B", "C", and "E". Council Member/Commissioner Johnson made a motion, seconded by Council Member/Commissioner Baxter, that said resolution be adopted. Resolution No. 2009-6 was adopted unanimously with the Fourth Ward vacant. 21. Resolution of the Mayor and Common Council authorizing the execution of a Services Agreement with Paramount Protective Services, Inc. to provide jail staffing for FY 2008-09. Staff requested that this matter be tabled. Council Member/Commissioner McCanunack made a motion, seconded by Council Member/Commissioner Kelley, that the matter be tabled. The motion carried unanimously with the Fourth Ward vacant. 22. RES. 2009-7 - Resolution of the City of San Bernardino authorizing an amendment to the Lease and Services Agreement with Nestor Traffic Systems, Incorporated. Council Member/Commissioner Johnson made a motion, seconded by Council Member/Commissioner Baxter, that said resolution be adopted. Resolution No. 2009-7 was adopted unanimously with the Fourth Ward vacant. 23. Set a public hearing on March 2, 2009 at 4:00 p.m., for the placement of liens on delinquent refuse collection accounts Council Member/Commissioner Estrada requested that the department break down the delinquent commercial accounts separately from the delinquent residential accounts in their report. 10 01120/2009 Council Member/Commissioner McCanunack made a motion, seconded by Council Member/Commissioner Estrada, that the Mayor and Common Council set a public hearing for March 2, 2009 at 4:00 p.m., for the placement of liens on delinquent refuse collection accounts. The motion carried unanimously with the Fourth Ward vacant. 24. RES. 2009-12 - A Resolution authorizing the execution of an agreement and issuance of a purchase order in the amount of $47,556.47 to Neff Rental Company of San Bernardino pursuant to Section 3.04-010-B3 of the Municipal Code for a SRECO-trailer mounted sewer rodder to be utilized by the Public Services Department Street Division Sewer Maintenance Crew. Joe Ortiz, 387 W. 25"' Street, San Bernardino, CA, spoke regarding the method of graffiti removal in the City. Council Member/Commissioner McCanunack made a motion, seconded by Council Member/Commissioner Brinker, that said resolution be adopted; and that the Director of Finance be authorized to amend the FY 2008/2009 budget by transferring $47,600 from Account No. 132-431-5704 (Miscellaneous Equipment) to Account No. 132-431-5701 (Motor Vehicles). The motion carried and Resolution No. 2009-12 was adopted unanimously with the Fourth Ward vacant. 25. RES. 2009-8 - Resolution of the Mayor and Common Council of the City of San Bernardino authorizing the execution of an agreement and issuance of a purchase order in the amount of $29,100 to AU American Truck & Auto Body in order to repair refuse unit 191. Council MemberlCommissioner Johnson made a motion, seconded by Council MemberlCommissioner Baxter, that the Director of Finance be authorized to amend the FY 2008/09 adopted budget and transfer $29,100 from Account No. 527-412-5179 (Dump/Waste Fees) to Account No. 527-413-5172 (Equipment Maintenance); and that said resolution be adopted. The motion carried and Resolution No. 2009-8 was adopted unanimously with the Fourth Ward vacant. 26. RES. 2009-13 - A Resolution authorizing the execution of an agreement and issuance of a purchase order in the amount of $77,760.44 to Fairview Ford of San Bernardino pursuant to Section 3.04.010-B3 of the Municipal Code "Purchases Approved by the Mayor and Common Council" for the purchase of (4) four 2009 Ford F -250 pick up trucks, to be utilized by the new Public Services Department Graffiti Abatement Crew. 11 01/20/2009 Council Member/Commissioner McCammack voiced her concerns with purchasing new trucks rather than used trucks for the graffiti abatement crew. Joe Ortiz, 387 W. 25th Street, San Bernardino, CA, spoke regarding graffiti removal by City crews versus graffiti removal by Los Padrinos. C. Patience Summers, 868 E. RiaIto Avenue, San Bernardino, CA, voiced her concerns regarding the termination of the contract with Los Padrinos and the fact that the City has to purchase new trucks and tools. Council Member/Commissioner Kelley made a motion, seconded by Council Member/Commissioner Brinker, that said resolution be adopted. Resolution No. 2009-13 was adopted. Ayes: Baxter, Brinker, Kelley, Johnson. Nays: Estrada, McCammack. Vacant: Fourth Ward. 27. RES. 2009-9 - Resolution authorizing the execution of an agreement and issuance of a purchase order to Fairview Ford of San Bernardino pursuant to Section 3.04.010-B3 of the Municipal Code for the purchase of twelve (12) refuse trucks complete with refuse bodies and LNG conversion to be utilized by the IWM Division; and authorizing the purchasing manager to solicit lease-purchase rate quotes and award a lease-purchase to the lowest responsible leasing company. Council Member/Commissioner Johnson made a motion, seconded by Council Member/Commissioner Baxter, that said resolution be adopted. Resolution No. 2009-9 was adopted unanimonsly with the Fourth Ward vacant. 28. Ratification of the submittal of a grant application to the International City/ County Management Association (lCMA) for a Public Library Innovation Grant Council Member/Commissioner McCammack made a motion, seconded by Council Member/Commissioner Baxter, that the Mayor and Common Council ratify the submittal of a grant application to the International City ICounty Management Association (ICMA) for a Public Library Innovation Grant and authorize the City Manager to expend the grant funds, if awarded. The motion carried. Ayes: Estrada, Baxter, Kelley, Johnson, McCammack. Nays: None. Absent: Brinker. Vacant: Fourth Ward. 12 01/2012009 29. An Ordinance of the City of San Bernardino amending Chapter 15.24 of the San Bernardino Municipal Code relating to property maintenance requirements. FIRST READING Council Member/Commissioner Kelley made a motion, seconded by Council Member/Commissioner Johnson, that said ordinance be laid over for final adoption. The motion carried. Ayes: Estrada, Baxter, Kelley, Johnson, McCammack. Nays: None. Absent: Brinker. Vacant: Fourth Ward. 30. Public hearing and resolution imposing liens on property located within the City of San Bernardino for uncollected Business Registration fees RES. 2009-14 - Resolution of the City of San Bernardino imposing liens on certain parcels of real property located within the City of San Bernardino for uncollected Business Registration fees. Mayor/Chairman Morris opened the hearing. No public comments were received. Council Member/Commissioner Kelley made a motion, seconded by Council Member/Commissioner Estrada, that the hearing be closed; that the City Clerk be directed to administratively remove any properties from Exhibit A to the staff report dated December 29, 2008, from Rachel Clark, City Clerk, which have been paid prior to the hearing; and that said resolution be adopted. The motion carried and Resolution No. 2009-14 was adopted. Ayes: Estrada, Baxter, Kelley, Johnson, McCammack. Nays: None. Absent: Brinker. Vacant: Fourth Ward. 31. Public hearing - Resolutions approving the annexation, calling a special election and certifying the results of an election relative to Community Facilities District No. 1033 Annexation No. 7 for property consisting of a commercial development located on the southwesterly side of Belmont Avenue, southeasterly of Palm Avenue (CUP No. 07-31, First Assembly of God Church) RES. 2009-15 - A Resolution of the Mayor and Common Council of the City of San Bernardino, California, authorizing the annexation of territory generally located between Palm Avenue and Olive Avenue southwesterly of Belmont Avenue (Aunexation No.7) to Community Facilities District No. 1033 and authorizing the levy of special tax and submitting the levy of tax to the qualified electors. (31A) 13 o t /20/2009 RES. 2009-16 - A Resolution of the Mayor and Common Council of the City of San Bernardino, California, calling a special election and submitting to the voters of Annexation No. 7 of City of San Bernardino Community Facilities District No. 1033 propositions regarding the annual levy of special taxes within Annexation No. 7 and the establishment of an appropriations limit. (31B) RES. 2009-17 - A Resolution of the Mayor and Common Council of the City of San Bernardino, California, making certain fmdings, certifying the results of an election and adding property to Community Facilities District No. 1033, Annexation No.7. (31C) Mayor/Chainnan Morris opened the hearing. City Clerk Clark stated that she concurred in the holding of the special election for the Community Facilities District Annexation. No public comments were received. Council Member/Commissioner Kelley made a motion, seconded by Council Member/Commissioner Baxter, that the public hearing relative to Annexation No. 7 to Community Facilities District No. 1033 be closed; and that said resolutions A and B be adopted. The motion carried and Resolution Nos. 2009-15 and 2009-16 were adopted. Ayes: Estrada, Baxter, Kelley, Johnson, McCammack. Nays: None. Absent: Brinker. Vacant: Fourth Ward. Mayor/Chairman Morris asked the City Clerk to tabulate the election results. He stated that if greater than two-thirds of the votes cast were in favor of the propositions, then the Mayor and Common Council may declare the election results by adopting Resolution C. City Clerk Clark advised that one ballot representing six votes had been received and the vote was in favor of both Proposition A and Proposition B. Council Member/Commissioner Kelley made a motion, seconded by Council Member/Commissioner Johnson, that said resolution C be adopted. Resolution No. 2009-17 was adopted. Ayes: Estrada, Baxter, Kelley, Johnson, McCammack. Nays: None. Absent: Brinker. Vacant: Fourth Ward. 32. Public hearing - Development Code Amendment No. 08-03, an ordinance amending Sections 19.06.025 and 19.06.030 of the Development Code to modify restrictions on the location of convenience stores and off-site ABC licenses in the City of San Bernardino 14 01/20/2009 An Ordinance of the City of San Bernardino amending Chapter 19.06 (Commercial Districts) Sections 19.06.025 and 19.06.030 of the San Bernardino Municipal Code (Development Code) related to convenience stores and off-site ABC licenses. FIRST READING Mayor/Chairman Morris opened the hearing. Council Member/Commissioner McCanunack made a motion, seconded by Council Member/Commissioner Estrada, that the hearing be closed, and that the matter be referred to the Legislative Review Committee (LRC). No vote was taken. Council Member/Commissioner Brinker asked why this item was being referred back to the Legislative Review Committee rather than laying the ordinance over for final adoption. Deputy City Attorney Henry Empefio stated that on both Agenda Item Nos. 32 and 33, the City Attorney's office declined to approve the proposed ordinances as to form. He stated that they feel that the proposed ordinances lack objective standards; therefore, they are vague and ambiguous and in violation of the due process requirements of the Fifth and Fourteenth Amendments to the United States Constitution. Without specific objective standards, Mr. Empefio stated that the Mayor and Common Council, and even the Planning Commission, could waive or modify the distance separation requirements in both of the ordinances without any guidance; therefore, the decisions could be arbitrary and capricious. In the case of these convenience stores, with a waiver or modification of the distance requirements, a convenience store, and even a liquor store, could be approved abutting a church, abutting a school, abutting a park, or abutting another convenience store. Council Member/Commissioner Brinker stated that they have had numerous hearings on this issue over a long period of time and he could not believe that this issue was now being raised by the City Attorney's office. City Attorney Penman stated that when this came before the LRC he gave the explanation to the committee at that time that what they were trying to do did not pass constitutional muster and that it would undermine the moratorium. Mr. Penman stated that Deputy City Attorneys Empefio and Dimichele had told him that the Council would be better off to repeal the entire moratorium than to enact these two changes because they would so undermine the ordinance that the likelihood the City would be sued would be very great. And, it would not necessarily be by someone who was denied a CUP for a 99 Cent Store or a convenience store, but by a person who wanted to put something else in entirely 15 01/20/2009 different and could point to these two amendments should they be passed and point out that this makes the entire moratorium arbitrary and capricious. Valerie Ross, Development Services Director, stated that potential changes to convenience stores and potential changes to the single-price overstock businesses were interchangeably discussed at LRC three or four times. After LRC, she took both items to Council separately for direction to proceed with the amendments. On the convenience stores she was unable to come up with objective criteria to allow consideration of two particular requests that had been brought to the attention of the LRC. She stated that she felt the best thing they could do at this point would be to go back to LRC. Part of what was being proposed were changes to policy issues and she did recommend against them at the LRC; however, she recognized that those were policy issues and it was up to the Council to make that determination. With the Council's direction to proceed on both of them, she understood that the Council was supporting them from policy perspective. Council MemberlCommissioner Estrada suggested that in the future when these items are brought before them, that the minutes of the LRC meeting are attached to the item so that there can be no question as to who was at those meetings and what was said, and that way the Mayor and Council would have a complete background on the issue. Council MemberlCommissioner Baxter stated that he remembers this particular item and he was against it because he recalled discussing a particular convenience store at the corner of Highland and Mountain View where there had been numerous problems adjacent to a laundromat, and they were told by representatives of the franchise that it's up to each individual owner how they police their own store. Representatives from the Police Department shared that they have a high rate of calls at that location as well as other locations, and that is why it was on the moratorium list to begin with. Council MemberlCommissioner Baxter stated that he was on the City Council when the moratorium began over two and one-half years ago, and the reason why they made that part of the moratorium was because of the high number of police calls on those items where the moratorium exists, and that included certain types of convenience stores, certain types of laundromats, tattoo parlors and smoke shops, etc. Having been a party to that very moratorium to begin with, he could not advocate that they would want to piece-meal this together, and as the City Attorney has pointed out, potentially ruin the entire dedication of that particular moratorium, which is to reduce crime in our City. Council MemberlCommissioner Kelley asked the Interim City Manager what the committee's recommendation was to the full Council on these items. t6 01120/2009 Interim City Manager Weinberg stated that the committee had recommended that the Council move forward. Subsequently, the Council recommended that staff move forward to draft legislation. He stated that those recommendations have to be translated into statute, and when that was done, the City Attorney's Office had some serious concerns and they have outlined those concerns, and have advised that it creates undue liability. Council Member/Commissioner McCanunack stated that the moratorium was unanimously adopted by the Council and was in place because of the hundreds of phone calls many of them got relative to the types of businesses that were being allowed to pop up in every single vacant store. However, some Council members indicated that they would rather see a 99 cent store, a thrift store, a pawn shop, a smoke shop, a check-cashing store, a convenience store, a laundromat, or a boom-box store in every store front rather than see the stores vacant. Council Member/Commissioner Brinker stated that he felt the moratorium did not address the specific issues of those businesses. All it did was prevent other businesses from coming in and it was done in such a broad way that suddenly all businesses of that type and class were suddenly suspect. Council Member/Commissioner Kelley made a substitute motion, seconded by Council Member/Commissioner Brinker, that the hearing be closed; and that said ordinance be laid over for final adoption. The motion failed. Ayes: Brinker, Kelley. Nays: Estrada, Baxter, Johnson, McCammack. Vacant: Fourth Ward. Council Member/Commissioner McCanunack made a motion, seconded by Council Member/Commissioner Estrada, that the hearing be closed; and that the item be referred back to the Legislative Review Committee for discussion. The motion carried. Ayes: Estrada, Baxter, Brinker, Johnson, McCammack. Nays: Kelley. Vacant: Fourth Ward. 33. Public Hearing - Development Code Amendment No. 08-04, an ordinance amending Section 19.06.025 of the Development Code to provide for exceptions to the prohibition of single-price overstock/discount stores in the City of San Bernardino An Ordinance of the City of San Bernardino amending Chapter 19.06 (Commercial Districts), Section 19.06.025 of the San Bernardino Municipal Code (Development Code) related to single-price overstock/discount stores. FIRST READING Mayor/Chairman Morris opened the hearing. 17 01/20/2009 Council Member/Commissioner McCammack made a motion, seconded by Council Member/Commissioner Estrada, that the hearing be closed; and that the item be referred to the Legislative Review Committee. The motion carried. Ayes: Estrada, Baxter, Brinker, Johnson, McCammack. Nays: Kelley. Vacant: Fourth Ward. 34. Workshop on Community Facilities Districts Emil Marzullo, Economic Development Agency Interim Executive Director, made a PowerPoint presentation regarding Assessment Districts and Community Facilities Districts. Council Member/Commissioner Kelley made a motion, seconded by Council Member/Commissioner Johnson, that the matter be referred to the Ways & Means Committee. The motion failed. Ayes: Baxter, Kelley, Johnson. Nays: McCammack. Absent: Estrada, Brinker. Vacant: Fourth Ward. Council Member/Commissioner McCammack made a motion, seconded by Council Member/Commissioner Johnson, that the matter be referred to the Redevelopment Committee for discussion. The motion carried. Ayes: Baxter, Kelley, Johnson, McCammack. Nays: None. Absent: Estrada, Brinker. Vacant: Fourth Ward. 35. Annual Report of the Bicentennial Ad Hoc Committee (This item was covered under presentations.) COMMUNITY DEVELOPMENT COMMISSION Present: Mayor/Chairman Morris; Council Members/Commissioners Estrada, Baxter, Kelley, Johnson, McCammack; Economic Development Agency Interim Executive Director Marzullo and Agency Counsel Sabo; City Clerk Clark. Absent: Brinker Vacant: Fourth Ward R36. Resolution of the Community Development Commission of the City of San Bernardino, California, approving an agreement with June Durr, Marketing and Public Relations Consultant, and authorizing execution thereof, providing for professional marketing and public relations consultant services. Council Member/Commissioner McCarnmack advised that the City may be in violation of IRS law related to 1099s and independent contractors. She stated that the IRS has issued warnings relative to 1099s, consultants, and contractors, and 18 01120/2009 the rules are getting tighter. She stated that if there is a certain requirement for so many hours of service or requirements of when and where to show up, and how often to show up, you're not a contractor or a consultant, you're an employee. Tim Sabo, Agency Counsel, stated that it is always an issue when you have someone acting as a consultant who is an individual rather than a company. The risk is solely upon the contractor, and they would have to pay employment taxes, and the Agency would have to pay a share as well. Council Member/Commissioner McCammack stated that there are also sanctions and penalties. Emil Marzullo, Economic Development Agency Interim Executive Director, stated that in this case June Durr is an independent contractor from the standpoint that the Agency does not set her hours. He stated that her work is based upon a set work product not a set work schedule. She has a business license within the City and the Agency issues her a 1099. Section 9 of the contract clearly states that if there are payroll taxes to be paid it is her responsibility and not the Agency's. Had she been an employee, where she worked a set schedule from 8 a.m. to 5 p.m., five days per week, then that would be a different situation, but that is not the case in this instance. Council Member/Cornmissioner McCammack stated that there is only one problem with that scenario and that is the fact that she was listed as being provided an hourly wage up to a certain amount of money, so that actually requires a certain amount of hours. She advised that that is not an independent contractor per IRS law. Mr. Marzullo stated that it is a not-to-exceed amount at a set rate per hour so if she works 10 hours she gets paid that amount per hour, and if she works 100 hours she gets that amount, but it does not exceed the total of the contract, which would be very similar to what they would do with any other independent contractor. Council Member/Commissioner McCammack asked where this work occurred. Mr. Marzullo stated that the work occurred at their office. Council Member/Commissioner McCammack stated that this meant she was not an independent contractor. 19 01/20/2009 Council Member/Commissioner Johnson made a motion, seconded by Council Member/Commissioner Kelley, that said resolution be adopted. The motion failed. Ayes: Baxter, Kelley, Johnson. Nays: Estrada, McCammack. Absent: Brinker. Vacant: Fourth Ward. R37. Purchase of a diesel powered commercial riding lawn mower for use by the Community Beautification Services and Blight Abatement Program Team (Central City Meadowbrook, Central City North, Central City South, Central City West, Central City East, Mt. Vernon Corridor, Southeast Industrial, Uptown and South Valle Redevelopment Project Areas) RES. CDC/2009-4 - Resolution of the Community Development Commission of the City of San Bernardino approving and authorizing the Interim Executive Director of the Redevelopment Agency of the City of San Bernardino ("Agency"), or his designee, to purchase a diesel powered commercial lawn mower for use by the Community Beautification Services and Blight Abatement Program Team. Council Member/Commissioner McCammack abstained because she owns property within the Uptown Redevelopment Project Area. She left the dais and returned after the vote was taken. Council Member/Commissioner Kelley made a motion, seconded by Council Member/Commissioner Baxter, that said resolution be adopted. Resolution No. CDC/2009-4 was adopted. Ayes: Estrada, Baxter, Kelley, Johnson. Nays: None. Absent: Brinker. Abstentions: McCammack. Vacant: Fourth Ward. R38. Resolution of the Community Development Commission of the City of San Bernardino approving and authorizing the Interim Executive Director of the Redevelopment Agency of the City of San Bernardino ("Agency") to execute Amendment No. 1 to the 2005 Disposition and Development Agreement by and between the Agency and Watson-Westridge, LLC ("Developer") (144.52- acre residential development located north of Foothill Drive and east of Sterling Avenue). Emil Marzullo, Economic Development Agency Interim Executive Director, requested that this matter be continued. He stated that the City Attorney's Office had reviewed this item and requested that a City resolution be included because it involves a piece of City property. 20 01/20/2009 Council Member/Commissioner Estrada made a motion, seconded by Council Member/Commissioner Baxter, that the matter be continued to the Councill Commission meeting of February 2, 2009. The motion carried. Ayes: Estrada, Baxter, KeUey, Johnson, McCammack. Nays: None. Absent: Brinker. Vacant: Fourth Ward. R39. Recommend transfer of personnel and certain assets of the City to the Agency related to the CATV Division Resolution of the Mayor and Common Council of the City of San Bernardino approving the transfer of personnel and certain assets of the City related to the CATV Division and the restructuring thereof within the Redevelopment Agency of the City of San Bernardino. Resolution of the Community Development Commission of the City of San Bernardino concurring with Mayor and Common Council resolution approving the transfer of personnel and certain assets of the City related to the CATV Division and the restructuring thereof within the Redevelopment Agency of the City of San Bernardino. Staff requested that the matter be continued in order to give the Council time to review the backup material that had just been distributed. Council Member/Commissioner McCammack made a motion, seconded by Council Member/Commissioner Estrada, that the matter be continued to the Council/Commission meeting of February 2, 2009. The motion carried. Ayes: Estrada, Baxter, Kelley, Johnson, McCammack. Nays: None. Absent: Brinker. Vacant: Fourth Ward. PLANNING ITEMS 40. Appeal Hearing - Conditional Use Permit No. 08-09 (Appeal No. 08-05) - An appeal of the Planning Commission's approval of a telecommunications facility and associated eqnipment at an existing church site located at 2898 North "G" Street, in the RS, Residential Suburban, land use district Council Member/Commissioner McCammack abstained because she and her husband own a parcel of land that has a cell tower on it. She left the dais and returned after the vote was taken. Mayor/Chairman Morris opened the hearing. Terri Rahhal, Development Services Deputy Director/City Planner, stated that the project is a proposal to construct a monopine tower, which is a 75 foot 21 01/2012009 wireless communications tower disguised as a pine tree, in the parking lot of Faith Bible Church. She stated that the site is adjacent to Caltrans right-of-way for the 259 Freeway, which connects the northbound 1-215 Freeway to the eastbound 1-210 Freeway. Ms. Rahhal stated that several residents had attended the Planning Commission hearing, spoke against the proposal and submitted a petition in opposition to the project. She stated that the residents voiced their concerns about the potential impact and the visual impact of the proposed monopine on their community. They also stated that cellular service is satisfactory in that area and they did not believe additional facilities were needed to provide services at this location. The Planning Commission approved the project based on the Findings of Fact contained in the staff report dated September 16, 2008, including a finding that the project does conform to the development standards in the City's Development Code for telecommunication facilities, and that the site is appropriate to accommodate a wireless communications tower. Staff recommended that the Mayor and Council deny Appeal No. 08-05 and uphold the Planning Commission's approval of Conditional Use Permit No. 08-09. Pursuant to Resolution No. 2000-279, City Clerk Clark administered an oath to the following individuals that they would provide true and honest testimony: John Beke, Site Acquisition Manager for Metro PCS, 2280 Market Street, #320, Riverside, CA, stated that the appeal is based on assertions that the existing services in the area are satisfactory and the facility being located in a residential zone is not appropriate. He stated that the proposed site is on the rear of the lot next to the mature freeway landscaping. Mr. Beke stated that churches, parks and schools have been good places for cell sites when located in residential zones. Without this site in operation, Metro PCS would have a significant gap in coverage whereby customers would not be able make calls, or existing calls would drop when driving through this area. He requested that the Council deny the appeal and uphold the Planning Commission's approval of CUP No. 08-09. Ulisses Molinard, Radio Frequency Engineer with Metro PCS, 2280 Market Street, #320, Riverside, CA, stated that he was available to answer any technical questions regarding this project. The following individuals spoke in support of the proposed cell tower: Jenny Overton, 3850 Atlantic Avenue, Highland, CA; Dorothy Garrison, 2589 Amanda Street, Highland, CA; Pastor John Frederick, 6102 McKinley, San Bernardino, CA; Jan Flower, third grade teacher at San Bernardino Christian School, 518 S. Indian Hill Blvd., #102, Claremont, CA. 22 01/20/2009 The following individuals spoke in oppositiou to the proposed cell tower: Douglas Andrew Bubeck, 674 W. 29th Street, San Bernardino, CA; Enrique Vazquez, Jr., 636 W. 29th Street, San Bernardino, CA; Mario Galicia, 664 W. 29th Street, San Bernardino, CA. Council Member/Commissioner Kelley made a motion, seconded by Council Member/Commissioner Brinker, that the hearing be closed; and that the Mayor and Common Council deny Appeal No. 08-05 and uphold the Planning Commission's approval of Conditional Use Permit No. 08-09, based on the Findings of Fact contained in the Planning Commission staff report dated September 16, 2008. The motion carried. Ayes: Estrada, Baxter, Brinker, Kelley, Johnson. Nays: None. Absent: None. Abstentions: McCammack. Vacant: Fourth Ward. 41. Public Comments Joe Arnett, 1681 E. Echo Drive, San Bernardino, CA, introduced himself to the public and announced that he was a candidate for the 4th Ward Council seat. Margie Arnett, 1681 E. Echo Drive, San Bernardino, CA, urged the residents of San Bernardino to help initiate positive change by joining a neighborhood group, helping clean up the City, painting over graffiti, joining the City's mentorship program, helping a student with their homework, taking garbage from empty fields to the dump, or helping a family in need. Joe Ortiz, 387 W. 25th Street, San Bernardino, CA, spoke regarding the City's new graffiti program and the termination of the contract with Los Padrinos. C. Patience Summers, 868 E. Rialto Avenue, San Bernardino, CA, spoke about the contract with Los Padrinos and the Operation Phoenix program. GiI Navarro, 1440 W. 6th Street, San Bernardino, CA, spoke about Code Enforcement's practice of selective enforcement. He pointed out that the street lights on Mt. Vernon Avenue and Fifth Street were out again. Charles Greenwood, City employee, thanked the members of the Fire Department who helped his mom with her meter problems. He requested that the City monitor the workload of the graffiti crew. Trinity Wallace-Ellis, Executive Director of Child Advocates of San Bernardino County, 555 "D" Street, San Bernardino, CA, shared information about the foster care program and stated that they are in need of funding and volunteers. 23 01/20/2009 NBl. Interim appointment of Council Member Rikke Van Johnson to the Indian Gaming Local Community Benefit Committee, per Mayor Morris' request Council Member/Commissioner Kelley made a motion, seconded by Council MemberlCommissioner Baxter, that the matter arose subsequent to the posting of the agenda. The motion carried. Ayes: Estrada, Baxter, Kelley, Johnson, McCammack. Nays: None. Absent: Brinker. Vacant: Fourth Ward. Council MemberlCommissioner Kelley made a motion, seconded by Council MemberlCommissioner Baxter, that the interim appointment of Council Member Rikke Van Johnson to the Indian Gaming Local Community Benefit Committee, as requested by Mayor Morris, be approved. The motion carried. Ayes: Estrada, Baxter, Kelley, Johnson. Nays: McCammack. Absent: Brinker. Vacant: Fourth Ward. 42. Adjournment At 9:15 p.m., the meeting adjourned. The next joint regular meeting of the Mayor and Common Council/Community Development Commission is scheduled for 1:30 p.m., Monday, February 2,2009. RACHEL G. CLARK City Clerk BY~A ~ J~/A~ Linda Sutherland Deputy City Clerk 24 01/20/2009