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HomeMy WebLinkAbout02-02-2009 Minutes CITY OF SAN BERNARDINO 300 N. "D" Street San Bernardino, CA 92418 Website: www.sbcity.org Mayor Potriel, J. Morris Council Members: Esther Estroda De1l1lis J. Baxter Tobin Brinker 4" Ward - Vocant Chos Kelley Rikke Yon Johnson We~ McCammack - MINUTES MAYOR AND COMMON COUNCIL AND COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO JOINT REGULAR MEETING FEBRUARY 2, 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 1:34 p.m., Monday, February 2, 2009, in the Council Chambers of City Hall, 300 North "D" Street, San Bernardino, California. Roll Call Present: Mayor/Chairman Morris; Council Members/Commissioners Estrada, Baxter, Brinker, Kelley, Johnson, McCammack; City Attorney Penman, Interim City Manager Weinberg, City Clerk Clark. Absent: None. Vacant: Fourth Ward. 1. Closed Session Pursuant to Government Code Section(s): A. Conference with legal counsel - existing litigation - pursuant to Government Code Section 54956.9(a): In the Matter of the Industrial Disability Retirement Application of Garrett Zimmon and the City of San Bernardino - OAH Case No. 2007080890; 1 02/02/2009 Koster v. San Bernardino City Fire Department, et al. - San Bernardino County Superior Court, Case No. SCVSS 811048; Alvarez, Jaime, et al. - USDCCV - 00-03048 PA (Rcx); Rodri~ez v. Patton, et al. - San Bernardino County Superior Court, Case No. CIVSS 808201. 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. v. City of San Bernardino Helper, Linda & Guerra, Jerry 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. California State University D. Closed Session - personnel - pursuant to Government Code Section 54957: Chief of Police 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: 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: 2 02/02/2009 1. Property Address: 450 North "E" Street APN: 0134-121-24 Nej!;otiatinj!; Parties: Emil A. Marzullo, Interim Executive Director, on behalf of the Redevelopment Agency and the City, and Moctesuma Esparza, CEO and Founder, on behalf of Maya Cinemas. Under Nej!;otiation: Purchase price, loan terms and conditions. City Attorney Penman announced that the following additional case would be discussed in closed session under Agenda Item lA, existing litigation: Royce Jobe v. City of San Bernardino, et al. - San Bernardino County Superior Court, Case No. CIVSS 816375. Closed Session Announcement City Clerk Clark announced that during closed session in the matter of Garrett Zimmon a motion was made, seconded, and approved that the Council agreed with the Administrative Law Judge's findings that Mr. Zimmon does not qualify for disability retirement. Reading of Resolutions & Ordinances Deputy City Clerk Hartzel read into the record the titles of all the resolutions and ordiuances 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 Reverend Don Inloes. Invocation/Pledge of Allegiance The invocation was given by Reverend Bronica Martindale of The Master's Plan Church of the Nazarene. The pledge of allegiance was led by Alvina Castaneda, a 6th grade student at Bradley Elementary School. 2. Appointments There were no Commission appointments. 3 02/02/2009 3. Proclamations & Presentations Michael Page, Director of Government and External Affairs for Verizon, presented Verizon Foundation grants to the following nonprofit organizations: San Bernardino City Unified School District San Bernardino Sexual Assault Services San Bernardino Community Hospital Option House Asian American Educational & Cultural Resource Center Libreria Del Pueblo, Inc. Applied Principals for Service, Inc. $50,000 $45,000 $35,000 $24,000 $20,000 $20,000 $18,000 4. 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. 5. Waive Full Reading of Resolutions & Ordinances Council Member/Commissioner Johnson made a motion, seconded by Council Member/Commissioner 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 Member/Commissioner Johnson made a motion, seconded by Council Member/Commissioner Baxter, that the minutes of the following meeting(s) of the Mayor and Common Council/Community Development Commission of the City of San Bernardino be approved as submitted in typewritten form: December 15, 2008, and January 5, 2009. The motion carried unanimously with the Fourth Ward vacant. 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 memorandnm dated January 22, 2009, from Barbara Pachon, Director of Finance, be approved. The motion carried unanimously with the Fourth Ward vacant. 4 02/02/2009 8. Personnel Actions Council Members/Commissioners Johnson and McCammack stated that it might not be prudent to approve the personnel actions (one appointment and six promotions) at this time of budget crisis. City Manager Weinberg explained that the reason several of these items were included on the agenda is that the requested actions were in connection with the sewer fund, which is a special fund with characteristics of an enterprise fund and is not as problematic as the general fund. He stated that the paramedic- firefighter position is important in terms of its certification; and the two code enforcement positions are not so much promotions in the classic sense, but rather an acknowledgment of a certain certification level that we have in our MOUs that says that when you have completed a certain amount of training this elevation automatically takes place. Fire Chief Conrad explained that one of the Firefighter EMTs had achieved paramedic training and qualifications; and they do have vacancies in the paramedic ranks, which is one of the department's most difficult positions to staff. In addition, some of the potential reductions that may be coming may require him to look at the Firefighter I category, and this allows him to move one of the firefighters into the medic ranks of Firefighter n. City Attorney Penman stated that he hoped that at least action Nos. 1, 6, and 7 (appointment of sewer maintenance personnel) would not be delayed; and he would concur with the Fire Chief regarding No.2, !he promotion from Firefighter to Firefighter Paramedic. Council Member/Commissioner Kelley made a motion, seconded by Council Member/Commissioner Baxter, that the personnel actions, as submitted by the Chief Examiner, dated January 22,2009, 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. Council Member/Commissioner McCammack stated that she agreed with approving action Nos. 1, 2, 6, and 7; however, she thought 3, 4, and 5 should be held over until after the budget discussions. Council Member/Commissioner McCammack made a substitute motion, seconded by Council Member/Commissioner Johnson, that Personnel Action Nos. 1, 2, 6, and 7 be approved; and that Nos. 3, 4, and 5 be continued to the Council/Commission meeting of February 17, 2009. 5 02/02/2009 Mr . Weinberg pointed out that there are not going to be any additional cuts in terms of public safety dispatching (action No.3), and there is a distinction between the enforcement capabilities of the Code Enforcement Officer II versus the Code Enforcement Officer I. Interim Director of Code Enforcement, Wayne Harp, advised that the reason for these promotions is because when the individuals were hired they didn't have any PC 832 certification, so they must remain a Code Enforcement Officer I until they obtain this certification. He supported the action for three reasons-I) the individuals have been told this is what will take place, 2) there is an MOU requirement for the action, and 3) to do the full range of code enforcement actions they need to be Code Enforcement Officer lIs. The substitute motion that Personnel Action Nos. 1, 2, 6, and 7 be approved; and that Nos. 3, 4, and 5 be continued to the Council/Commission meeting of February 17, 2009, carried unanimously with the Fourth Ward vacant. 9. ORD. MC-1292 - An Ordinance of the City of San Bernardino amending Chapter 15.24 of the San Bernardino Municipal Code relating to property maintenance requirements. FINAL READING (Continued from January 20, 2(09) Council Member/Commissioner Johnson made a motion, seconded by Council Member/Commissioner Baxter, that said ordinance be adopted. Ordinance No. MC-1292 was adopted unanimously with the Fourth Ward vacant. 10. Authorize the Director of Development Services to execute Contract Change Order Number One with Nikola Construction Corporation for sewer improvements in Industrial Parkway, Tippecanoe Avenue, and "I" Street and Pavement Rehabilitation on Sterling Avenue (SW05-05, SW05-06, SW04-36, & SS06-56), per Project Plan No. 11923A Council Member/Commissioner Johnson made a motion, seconded by Council Member/Commissioner Baxter, that the Director of Development Services be authorized to execute Contract Change Order Number One with Nikola Construction Corporation for sewer improvements in Industrial Parkway, Tippecanoe Avenue, and "I" Street and Pavement Rehabilitation on Sterling Avenue (SW05-05, SW05-06, SW04-36 & SS06-56), per Project Plan No. 11923A. The motion carried nnsmimously with the Fourth Ward vacant. 6 02/02/2009 R"' 11. RES. 2009-18 - Resolution of the City of San Bernardino establishing a fair market value and sales price of $527,323 and declaring the intention of the City to sell City of San Bernardino Municipal Water Department owned property generally located south of 9th Street and west of "R" Street to the State of California Department of Transportation relative to the widening of the 1-215 freeway and setting a public hearing for March 2, 2009 at 4:00 p.m., to consider said sale. Council Member/Commissioner Johnson made a motion, seconded by Council Member/Commissioner Baxter, that the Director of Development Services be authorized to proceed with the sale of a portion of City of San Bernardino Municipal Water Department owned real property to Caltrans generally located south of 9th Street and west of "H" Street (APN 0140-191-41); and that said resolution be adopted. The motion carried and Resolution No. 2009-18 was adopted unAnimously with the Fourth Ward vacant. 12. Item deleted 13. RES. 2009-19 - Resolution of the City of San Bernardino amending Resolution 2008-149 establishing a fee for Fire Department removal of hazardous materials spills resulting from traffic collisions. 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 adopted budget and decrease General Fund revenue associated to Haz Mat cleanup included in Account No. 001-000-4709 by $195,900 (rounded) from $477,500 to a new total of $281,600; that a new revenue account for this fee with a budget of $79,200 be established; and that the expenditures in the amount of $47,500 (rounded) associated with this program be incorporated into the FY 2008/2009 Fire Department Budget by appropriating $47,500 from the General Fund Budget Reserve. The motion carried and Resolution No. 2009-19 was adopted unanimously with the Fourth Ward vacant. 14. RES. 2009-20 - 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 Golden West Landscape Contractor, and the Director of Finance to increase the following contracts by the stated amounts: Contract Nos. 09-054 (Area "D") - $12,176; 09-047 (Area "F") - $11,708; 09-048 (Area "G") - $78,114; 09-049 (Area "R") - $92,558; and, 09-053 (Area "I") - $5,703 issued to Golden West Landscape Contractor for landscape maintenance services in Landscape Maintenance Districts Areas "D", "F", "G", "R" and "I" for the term February 2, 2009 through January 31, 2010. 7 02/02/2009 Council Member/Commissioner Johnson stated that he would abstain because he had been unable to determine whether he had a conflict with any of the contracts. He left the dais and returned after the vote was taken. Council Member/Commissioner McCammack expressed concern that there appeared to be no escape clause for a breach of contract. City Attorney Penman noted that this was an amendment to an existing contract, and he knew it was checked before the amendment was approved; therefore, it was his belief that it did contain an escape clause. Jan Wages, Sr. Administrative Analyst in the Parks, Recreation and Community Services Department, verified that there was a 30-day termination clause in the original contract. Joe Ortiz, 387 West 25th Street, San Bernardino, CA, expressed concern regarding exposed wiring on two light poles at Campo Santo Memorial Park and some landscaping abutting the Holy Rosary Academy campus which needs to be trimmed. Council Member/Commissioner McCammack made a motion, seconded by Council Member/Commissioner Baxter, that said resolution be adopted. Resolution No. 2009-20 was adopted. Ayes: Estrada, Baxter, Brinker, Kelley, McCammack. Nays: None. Abstentions: Johnson. Absent: None. Vacant: Fourth Ward. 15. RES. 2009-21 - Resolution of the Mayor and Common Council of the City of San Bernardino approving the template Letter of Agreement in concept, and authorizing the Interim City Manager to execute a KaBOOM! Outreach statement on behalf of the City of San Bernardino as required for consideration for a community-build playground proposed for construction at the Rudy C. Hernandez Community Center located at Meadowbrook Park. Council Member/Commissioner Kelley stated that he supports the KaBOOM! projects and implored the Parks Department to consider Al Guhin Park for such a project. Council Member/Commissioner Johnson stated that it was his understanding that staff had created a list for future projects so that Council members can see where their parks stand on the list. 8 02/02/2009 Kevin Hawkins, Director of Parks, Recreation and Community Services, advised that they have had to rely on the Parks Master Plan for construction of the KaBOOM! builds, and parks with community centers are the priority at this time. Council Member/Commissioner Kelley made a motion, seconded by Council Member/Commissioner Brinker, that said resolution be adopted. Resolution No. 2009-21 was adopted unanimously with the Fourth Ward vacant. 16. Item deleted 17. RES. 2009-22 - Resolution of the Mayor and Common Council of the City of San Bernardino authorizing execution of an agreement with the San Bernardino Black Culture Foundation for fmancial assistance from the Civic and Promotion Fund for FY 2008-09. Council Member/Commissioner McCammack noted that the Council members receive a lot of calls and e-mails advising them to use restraint when approving waivers of fees. She explained that these monies are specifically related to fees that developers pay into a Civic and Promotion Fund, which is restricted for this type of thing-the money is not coming from the General Fund. Council Member/Commissioner Kelley made a motion, seconded by Council Member/Commissioner Brinker, that said resolution be adopted; and that the Mayor and Common Council authorize direct funding in the amount of $4,500 and indirect funding in the amount of $21,331 be transferred from the 2008-09 Civic and Promotion Fund to various City departmental accounts as listed in the attached staff report dated January 12, 2009 from Interim City Manager, Mark Weinberg; and authorize a waiver of fees and use of City personnel and equipment to assist with the 2009 Black History Parade scheduled for February 7, 2009. The motion carried and Resolution No. 2009-22 was adopted unanimously with the Fourth Ward vacant. 18. Budget Workshop (EDA Board Room) The following materials were distributed: · Interoffice memorandnm dated February 2, 2009, from Mark Weinberg, Interim City Manager, to the Mayor and Common Council regarding Recommended Budget Strategy · The Budget Challenge: City of San Bernardino (bard copy of a PowerPoint presentation made at the beginning of the meeting) · DRAFT City of San Bernardino Projected General Fund Balance Fiscal Years 2008-2009 and 2009-2010 - Attachment A (blue paper) 9 02/02/2009 . City Manager's Recommended Budget Strategy - Attachment B (gray paper) . Alternative Budget Strategy - No 10% work week reduction - Attachment C (salmon paper) . Work Week Reduction Operational Plan - Appendix 1 (green paper) . Staffing in Administrative Departments - Appendix 2 (yellow paper) . Revenue Enhancement Ideas Draft - 212/2009 - Appendix 3 (pink paper) . General Fund Budget Reductions - Draft City Manager's Office 2/2/2009 (white paper) . Appendix 4 - Department Budget Reduction Narrative and Scenarios (buff paper) . Inter Office Memorandum dated January 22, 2009, from Stephanie D. Easland, Assistant City Attorney, to Mark Weinberg, City Manager, regarding Proposal to Close City Hall on Fridays . Inter Office Memorandnm dated February 2, 2009, from John F. Wilson, Senior Assistant City Attorney, to Mayor and Common Council, regarding Impracticability of Closing City Attorney's Office on Fridays Interim City Manager Weinberg explained that staff was looking for a consensus from the Council-not actual actions. Barbara Pachon, Director of Finance, reviewed some of the handouts. She noted that there is about a $9 million shortfall for this fiscal year over what was budgeted, due in large part to loss of revenues-especially sales tax. Using staffs revised estimate for 08/09 and projecting that out to 09/10, again they are seeing additional reductions in revenues that equate to a shortfall for 09/10 of about $20 million. If you add to that the $9 million projected for this year, the City is looking at a total shortfall of almost $29 million. Mr. Weinberg reviewed the City Manager's Recommended Budget Strategy - Attachment B, and stressed the need to act quickly and decisively in terms of what needs to be done. At the end of the PowerPoint presentation regarding The Budget Challenge there was a List of Requested Actions, as follows: · Authorize City Manager to proceed with changing work schedules as needed to begin Friday closure of City Hall as soon as possible · Authorize City Manager and Department Director to proceed with layoff and/or bnmping notices · Prepare for [mal action by the Mayor and Council by the February 17 Council meeting 10 02/02/2009 Council Member/Commissioner Kelley made a motion to accept/authorize the actions requested by Mr. Weinberg. (The motion was restated and seconded at the end of the meeting-see page 14.) Council Member/Commissioner Estrada expressed concern that the changes in services will most seriously impact the large nnmber of people that live in this community that are low income individuals. She stated that she was not sure that the Council had information that showed that staff took into account the impact, for example, of the elimination of police officers-what impact that will have on the crime rate; or the potential for more liability if we cut firefighter positions . She stated that she had recently learned of a company that has acquired a number of parcels throughout the city and would and could be very interested in, as an example, buying the Galaxy. Mayor/Chairman Morris advised that the problem with the Galaxy center is that it was given to the City by the u.s. Air Force as a recreation venue with restrictions in how the City could utilize the funds that would be obtained from its sale. He stated that if the City was to sell it, it was his understanding that we are constrained to use those resources to acquire additional Parks and Recreation facilities of like kind, so it is specifically designated in perpetuity for Parks and Recreation functions. Ms. Estrada suggested that since the current state of affairs is not a local problem, but an international problem that we are facing, the government might be willing to relax some of those restrictions. She asked the Mayor what assets the City currently has. Barbara Pachon, Director of Finance, stated that staff is putting together a list of the City's assets; however, a lot of the buildings have already been used as collateral. She stated that they are working with Real Property and cross checking and making sure that they have the most up-to-date value of the property . Interim City Manager Weinberg stated that he appreciated Councilwoman Estrada's comments, stating that they could take a more prudent look at disposing of property in terms of it being a mid- to longer-term part of the solution. He stated that even if we get through this immediate crisis to restore the City's fiscal health, we really should be working towards a general fund reserve of about $15-20 million; and that would be one way to do that. Ms. Estrada concurred that anytime you can build up the reserve to $15-20 million it is very advisable. However, right now they are looking to deplete it almost to nothing, and she is saying that she wants to go in the opposite 11 02/02/2009 direction. She doesn't want to wait three to six months for answers if the question she is asking could be answered tomorrow. Mr. Weinberg agreed that they want to look into this, and if it looks like it's a transaction that they could complete promptly, then of course they would. He just thought that in terms of a broader strategy of selling off City assets, that it is likely to be something that is going to take a little bit of time. Mayor/Chairman Morris stated that he thought the City was constrained by the Transfer Act of federal closed bases to municipalities and other nonprofits. He stated that changing that in Washington is a worthy quest and he would immediately pursue it with both Congressman Lewis and Congressman Baca. Council Member/Commissioner McCammack stated that one of the fIrst things she researched coming in here was revenue. She stated that the Council was being asked to make a decision on those items on the gray sheets, but those actions all hinged on the revenue projections. If the revenue projections are short by $3 million, then they are making $3 million worth of decisions that are a) affecting service-critical servjce delivery , b) affecting lives with layoffs, and c) they are really not being as pI1Ident as they could be in raising revenues first. She stated that you don't cut first; you raise revenue fIrst. She stated that they are not going after the revenue they should be going after, and should have been going after a long time ago. She stated that she would make sure that whatever proposal comes to this table, that the Council as a body, has at least discussed all of those ideas. Ms. McCammack stated that in her opinion we are underestimating what we are going to receive in revenue in 08/09 by $2.9 million for the year. According to Ms. McCammack, sales tax alone is underestimated by $2.1 million. She stated that the City needs to market its excess property. She also questioned why staff doesn't get more aggressive on collections from the people who owe the City money. She noted that last year the Fire Department suggested that they ask insurance companies to foot the bill for Fire personnel writing the reports for accidents, or for the cleanup performed by the PD and Fire. She stated that they are still talking about the same revenue enhancements they talked about a year ago, but they have done nothing about them, and they are asking the employees to suffer the consequences of their inaction. Relative to the selling of obsolete real estate, Mr. Baxter asked whether staff had done any in-depth research, or whether they had just given it a cursory look right now. 12 02/02/2009 Mr. Weinberg answered that they were just starting to look at that beyond a cursory review. They have looked at it on a cursory basis, and they are finding some properties that are restricted in terms of what they can do with them. However, they are looking at that and they do think it is an important part of the equation. City Attorney Penman stated that in his department if they go to a 4-day work week, the attorneys lose their exempt status, which means you have to pay them time and one-half overtime for the hours that they work. He pointed out that there is a rninimnm amount of work that has to be done for every case and for all legal advice that is given in order to maintain professional standards. Despite having that information, they are being told that they still have to cut back in the City Attorney's office to four days. He stated that that was so ridiculous because the overtime they will pay starting the very first pay period will wipe our the entire savings of going to four days per week and it will increase the deficit amount even more. The only people who will benefit will be the attorneys who will have a windfall of a huge additional salary. Mr. Weinberg stated he would take issue with Mr. Penman's comments based on the fact that he has experience to show that such a plan has worked well in the past and was done under the advice of two separate attorneys. Jack Banuelos, 6106 Layton Street, Alta Loma, CA, stated that he works in traffic signal, and it appears that the budget cuts will affect two of those in their shop. He explained the scope of their work including maintenance on 270 intersections every three months. Also, since street lights was privatized, they are pitching in to do some of the things street lighting used to do-things the contractor should be doing and is being paid to do, but are actually being done by traffic signal. C. Patience Summers, 868 E. Rialto Avenue, San Bernardino, CA, told City Manager Weinberg that he had promised not a single front-line cop would be cut and that appeared to be a lie. She stated that sales tax began to fall with the initiation of Operation Phoenix, but in her opinion, more boots on the street prevent crime rather than programs like Operation Phoenix. Evelyn Alexander, 1480 E. Verde Drive, San Bernardino, CA, stated that she had retired from the library after 44 years and urged the elected officials to figure out a way to keep the main library open at least five days a week. Warner Hodgdon, 405 E. Arrowhead Road, San Bernardino, CA, stated that he supports everyone here tonight and is encouraged to hear such a spirited discussion. He stated that the problem is that the debt is cnmulative and cited examples such as the City Hall, the ballpark, etc. 13 02/02/2009 Council Member/Commissioner Kelley made a motion, seconded by Council Member/Commissioner Brinker, that the City Manager be authorized to proceed with changing work schedules as needed to implement the reduced workweek and commensurate Friday closure of City Hall effectivelbeginning on Friday, March 6, 2009; that Human Resources initiate the meet and confer process with labor groups regarding the impacts of this management decision, with a staff report to come to the Mayor and Council on Febrnary 17 to take the fina1 action necessary to implement this change; and that the City Manager and Department Directors be authorized to proceed with issning layoff and bumping notices. The motion carried. Ayes: Estrada, Baxter, Brinker, Kelley, Johnson. Nays: McCammack. Absent: None. Vacant: Fourth Ward. COMMUNITY DEVELOPMENT COMMISSION Present: Mayor/Chairman Morris; Council Members/Commissioners Estrada, Baxter, Brinker, Kelley, Johnson, McCammack; Assistant City Attorney Wilson, Economic Development Agency Interim Executive Director Marzullo and Agency Counsel Sabo, City Clerk Clark. Absent: None. Vacant: Fourth Ward R19. Recommend transfer of personnel and certain assets of the City to the Agency related to the CATV Division (Continued from January 20,2009) RES. 2009-23 - Resolution of the Mayor and Common Council of the City of San Bernardino approving the transfer of persounel 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 and approving and authorizing execution of an Asset and Personnel Transfer Agreement. (R19A) RES. CDC/2009-5 - Resolution of the Community Development Commission of the City of San Bernardino concurring with Mayor and Common Council resolution approving the transfer of persounel 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 and approving and authorizing execution of an asset and personnel transfer agreement. (R19B) 14 02/02/2009 Council Member/Commissioner Kelley made a motion, seconded by Council Member/Commissioner Brinker, that said resolutions be adopted. Mayor and Common Council Resolution No. 2009-23 and Community Development Commission Resolution No. CDC/2009-5 were adopted unanimously with the Fourth Ward vacant. R20. Watson-Westridge, LLC - Amendment No.1 to the 2005 Disposition and Development Agreement (144.52-Acre residential development located north of Foothill Drive and east of Sterling Avenue) (Continued from January 20, 2009) RES. CDC/2009-6 - 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). Council Member/Commissioner Baxter made a motion, seconded by Council Member/Commissioner Kelley, that said resolution be adopted. Resolution No. CDC/2009-6 was adopted unanimously with the Fourth Ward vacant. R21. Formation of a Property and Bnsiness Improvement District ("PBID") for the San Bernardino Auto Center (Southeast Industrial Park and IVDA Redevelopment Project Areas) RES. 2009-24 - Resolution of Intent of the Mayor and Common Council of the City of San Bernardino providing for the formation of a Property and Business Improvement District within a certain area of the City of San Beruardino and taking other actions in connection therewith (Auto Center PBID) (Southeast Industrial Park and IVDA Redevelopment Project Areas). Emil Marzullo, Interim Executive Director of the Economic Development Agency, explained that just a few years ago the City of San Bernardino had in its auto mall 12 different car makes being represented by 10 different dealerships. Today they are down to 3 dealerships with only 5 different makes being offered, and the dealerships are being weakened simply from the lack of financing, lack of sales, or cost overruns. He stated that the Agency was alerted to this fact by the Dealership Association at the Auto Mall just a few months ago, at which time staff began looking at what other cities were doing to assist their dealerships in the same situation. 15 02/02/2009 He advised that the Agency was concerned that if they lose sales tax by dealerships closing, the City's general fund goes down. Also, if a dealership closes, then that property becomes devalued and the actual property tax goes down, which affects not only the general fund but affects the tax increment within the redevelopment areas. Hence, the Agency talked to the dealers and offered a suggestion in terms of a way to assist, but still have the City's interest protected to the highest degree; and a Property and Business Improvement District (PBID) is that recommendation that they have before the Council today. Mr. Marzullo stated that a PBID is an assessment district by those properties that participate in the program. They are petitioning the Commission to form this district through this resolution of intention and asking that an election be conducted-it would come before the Commission in a separate action in future weeks. What the Dealership Association has requested is an advance from the Economic Development Agency in the amount of $1,218,372. Staff worked with them through a business plan, and this is the amount of money that would assist these car dealerships for a period of 6-9 months to a year to try and do things that are in fact allowable under the PBID law-landscaping, lighting, clean and safe kinds of programs, marketing-primarily the budget would be used in marketing to try and get the word out that they are still here and in business. He explained that this amount actually would be a loan from the Agency to the PBID-not to the dealers directly-but to the PBID if it is formed, payable back over five years at zero interest. He stated that in the case of an assessment, the assessment is placed in high priority with property taxes, so they are first in line for recovery of debt in the case of a default. The action before the Commission is a petition by these dealers to ask the City and the Agency to form a Property and Business Improvement District and call an election wherein election staff will be bringing to the Commission action to loan the PBID 1.218 million dollars, to be paid back over a period of five years at zero percent interest. He stated that their leverage was pretty good in this case-1.2 million dollars to save three dealerships and probably a multiple of many times that in sales tax over the coming years is probably a very good leverage. Council Member/Commissioner Brinker made a motion, seconded by Council Member/Commissioner Baxter, that said resolution be adopted. (The vote was taken following discussion.) Greg Engel, Windermere Commercial Real Estate, stated that he was recently contacted to put up for sale or lease Jack Kennedy Cadillac, which has closed its doors. He noted that Jack Kennedy Cadillac had been in this city for approximately 35 years and had been paying roughly on an average of $150,000 a month in sales tax to the City. 16 02/02/2009 He stated that he went to the City last week and tried to figure out what they were going to do with this lot, and he was informed by the City that Jack Kennedy Cadillac was not part of the Auto Zone. Mr. Engel asserted that nobody had informed Mr. Kennedy that the Economic Development Agency was considering doing anything to help the dealerships because he was not part of the Association, even though he brought in large dollar amounts to the City. Mayor/Chairman Morris stated it was important how the City treats those who serve the city well over the years as illustrious businesses; and he thought Mr. Engel would find the City ready to work with him in every way it legally could to assist in making that mall and that site reusable and attractive. Mr. Marzullo indicated that staff would be meeting the next day with other dealers in town at 10 o'clock in the Agency's offices, and he would welcome Mr. Engel and whoever else may want to come to talk about what happens for the other dealers who are not in the Auto Mall. Mr. Engel stated that Cadillac is gone and is not willing to come back to San Bernardino. He stated that he was trying to figure out whether they were part of the Auto Zone or not. If they are not part of the Auto Zone, then they would like assistance to facilitate a change which would allow them to put in such things as specialty cars or used cars on the property to generate money back to the City. He has been told that they are not part of the Auto Zone, no one approached them as part of the Auto Zone. Mayor/Chairman Morris stated that this was a discussion that needed to be continued, and Mr. Marzullo was hosting with the Mayor's office a meeting tomorrow at 10 o'clock to discuss the possibilities of how they could come to Mr. Engel's aid-whether there were strategies that they could articulate as a City that would aid him in making use of that property as a new business. Mr. Engel clarified that they were not asking for money; and Mayor/Chairman Morris stated that he sensed they were looking for some type of a land use change in that area. Council Member/Commissioner McCammack stated that she was floored that the City/Agency was willing to loan a whole bunch of money to Center Chevrolet to keep them in business, but that they didn't do something to help Kennedy. She stated that even if they didn't have the legal ability to offer them anything within the PBID, they have lots of other legal abilities to help them with lots of other pots of money and they didn't. She stated she was heartsick, and all she wanted to say at this point is that the Commission must do something if they are going to allow used boats to be sold two doors down, and used wave runners, and allow them to park on unapproved surfaces for years and years and years and not give them a ticket. If they are 17 02/02/2009 allowing that kind of use to go on, either one parcel or two parcels south of the Kennedy Cadillac parcel, then they better be able to do something for the parcel as it sits right now. Council Member/Commissioner Brinker stated that many of the dealers reached out to him going back to last year-the Chevy dealer being the first who really came to him and said they were having some issues and went to our Economic Development Agency and talked about ways that the City/Agency could work with them. Ultimately, they couldn't find a way that they felt secured the City's interest. In the meantime, other dealers continued to come forward, but he never heard from the Cadillac dealer. He stated that he received a message a week ago from Mr. Engel, asking to meet, and he told his staff to set up the meeting. He stated that obviously, they haven't met yet, but he hoped Mr. Engel left here today understanding they are very interested in working with him. He noted that the other dealers had sought out the City/Agency for help, and he was surprised that Kennedy Cadillac didn't come talk to them a little sooner because he thought there was an interest in making sure that their dealers do well, and they want to work with him to find what's best for him and what's best for the City. Council Member/Commissioner Baxter expressed regret over losing the only Cadillac agency in the city, stating that he wished something had been done before. Discussion continued regarding what delineated the actual boundaries of the PBID, the fact that each assessment was different based on the size of the property and the amount of their marketing, and the fact that 90 percent of the PBID would be used for security, landscaping, and marketing. Council Member/Commissioner McCarnnlack asked what pot of funds this PBID was coming from. Mr. Marzullo answered that it would be taken from the one-time reserves, loaned on a five-year basis, with the payback on an annual basis. Council Member/Commissioner Estrada inquired about how much money was in the reserve. According to Agency Counsel Sabo the money first came up at least two fiscal years prior and it was about $12.6 million; and he believed that there was about $8 million now in what they considered to be the una1located reserve funds. Ms. Estrada asked Mr. Marzullo for a list of those projects that have been funded out of that $12.6 million. 18 02/02/2009 The motion made by Council Member/Commissioner Brinker, seconded by Council Member/Commissioner Baxter, that said resolution be adopted carried. Resolution No. 2009-24 was adopted unSlnimously with the Fourth Ward vacant. R22. Implementation of the Maya Cinemas North America, Inc., Disposition and Development Agreement Council Member/Commissioner Estrada made a motion, seconded by Council Member/Commissioner Baxter, that the Mayor and Common Council of the City of San Bernardino authorize the submittal of a HUD Section 108 Loan Application to the U.S. Department of Housing and Urban Development. The motion carried. Ayes: Estrada, Baxter, Brinker, Kelley, Johnson. Nays: McCammack. Vacant: Fourth Ward. PLANNING ITEMS 23. Public hearing - General Plan Amendment No. 07-01 & Conditional Use Permit No. 07-34 - A request to change the General Plan land use designation of a 17,516 square foot parcel from RS, Residential Suburban to CG-l, Commercial General, with a request to construct a 3,600 square foot multi-tenant retail building on the site located at the northeast coruer of 30th and "E" Streets RES. 2009-25 - Resolution of the City of San Bernardino adopting General Plan Amendment No. 07-01 to the General Plan of the City of San Bernardino to change the General Plan Land Use Designation from RS, Residential Suburban, to CG-l Commercial General, and approving Conditional Use Permit No. 07-34 to permit construction of a multi-tenant retail building on a 17,516 square foot parcel located at the northeast comer of 30th and "E" Streets. Mayor/Chairman Morris opened the hearing. Deputy Director/City Planner Terri Rahhal provided an overview of the staff report. Alex Irshaid, 670 Parkridge A venue, Corona, CA, stated he was available to answer any questions regarding the project. No public comments were received. 19 02/02/2009 Council Member/Commissioner Baxter made a motion, seconded by Council Member/Commissioner Estrada, that the hearing be closed and that said resolution be adopted. Resolution No. 2009-25 was adopted. Ayes: Estrada, Baxter, Brinker, Johnson, McCammAck. Nays: None. Abstentions: Kelley. Vacant: Fourth Ward. 24. Appeal hearing - Conditional Use Permit No. 07-25 <Appeal No. 08-06) - Appeal of the PlAnning Commi,.qon's denial of a Conditional Use Permit to construct a 1,893 square foot drive-thru restaurant and 3,440 square foot retail building on a 29,537 square foot parcel located at the southeast coruer of Waterman Avenue and 29th Street in the CG-l, Commercial General land use district Mayor/Chairman Morris opened the hearing. Pursuant to Resolution No. 2000-279, City Clerk Clark administered an oath to the following individuals that they would provide true and honest testimony: Margaret Cisneros, 7512 Sterling Avenue, Highland, CA, expressed opposition to the project, stating that she owns four adjacent houses directly across the street from the proposed project and it's not an appropriate place for this establishment. She also mentioned concerns regarding traffic, the potential for accidents, and the number of children in the area who attend Wilson School. Sandy Parada, 333 East 29th Street, San Bernardino, CA, expressed opposition, stating that traffic in the area is already terrible and this would just add to that problem. Council Member/Commissioner Baxter made a motion, seconded by Council Member/Commissioner Brinker, that the matter be continued to the Council/Commission meeting of February 17, 2009. The motion carried. Ayes: Baxter, Brinker, Kelley, Johnson, McCammack. Nays: None. Absent: Estrada. Vacant: Fourth Ward. R25. RES. CDC/2009-7 - 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 Brinker made a motion, seconded by Council Member/Commissioner Baxter, that said resolution be adopted. (Note: The vote was taken following discussion.) 20 02/02/2009 Council Member/Commissioner McCammack stated that she did some research on the IRS website regarding independent contractors. Specific to employees, it talks about before you can know how to treat payments that you make to workers for services you must first know the business relationship that exists between you and the person perfomling the services. The person perfomling the services may be an independent contractor, a common law employee, a statutory employee, or a statutory non-employee. She stated that it talks about independent contractors, and whether people are employees or independent contractors depends on the facts in each case. The general rule is that an individual is an independent contractor if you, the person for whom the services are performed, have the right to control or direct only the result of the work and not the means and methods of accomplishing the results. She stated that based on the staff report and based on everything that had been given to the Council, she did not believe they were following the rules of this particular publication. She stated that it also talked about sanctions if they don't follow the IRS' rules. Unless there was a different staff report, it looked to her like Ms. Durr was an employee-not an independent contractor. Mayor/Chairman Morris advised that this issue was raised at the last Council meeting and he had asked Mr. Marzullo and Mr. Sabo to look into it with regard to a legal opinion on the subject. Emil Marzullo, Interim Executive Director of the Economic Development Agency, advised that they went to Gail Montgomery, who is the employment partuer of Lewis, Brisbois, Bisgaard, & Smith. He stated that the Agency's contracts, like many, had been around and recycled for years, where sometimes you get in a lull where you don't look at them critically. This caused them to take a critical look at the contract and substantial amendments were made. He stated that the staff report was the same; however, the contract before them for approval was not. He added that he had a written legal opinion from Gail Montgomery; and the contract before them does in fact meet the Internal Revenue Service published guidelines. Mr. Marzullo suggested that the motion be amended to state approval subject to legal approval by the City Attorney. He stated that he believed the amendments, based upon the attorney's review, met the statutes and the guidelines of the IRS. Ms. McCammack then suggested that Mr. Marzullo change the staff report, because the staff report specifically talks about Ms. Durr completing tasks that she had been given while an employee. If she is following up on those same tasks, according to this, she is following up on tasks she has already been involved in. 21 02/02/2009 Mr. Marzullo pointed out that Ms. Durr would be doing virtually the same tasks as she did as an employee. However, her relationship in conducting those tasks is different. She takes care of her own schedule-he doesn't set her schedule. He gives her priorities and certain assignments-she decides if she needs to come to the office, or if she performs them in another place. She carries her own insurance, she has a City business license, and a number of other things that distinguish her from being an employee of the City versus a contractor to the City. He stated he was comfortable with it-that he understood and was concerned that they make those differences, but he thought that the way they have done this essentially establishes those differences. Mayor/Chairman Morris noted that it had been suggested by the EDA director that they have a motion approving this resolution, subject to the City Attorney's approval of the contract. City Attorney Penman stated that when they get employment contracts for independent contractors, they look at the legal language of the docnment to determine if the docnment itself is legally correct and within the IRS guidelines. They do not do a background check to see whether the person is actually being an independent contractor or not. Some of the things the IRS requires that they look at are whether the person sets their own hours, whether they work under direct supervision or not, whether they furnish their own office, their own workplace and materials-those are the types of things they would look at. He stated he was not aware of whatever the circumstances are in this particular case, but no one had asked him to do this until right now, but if that is what EDA would like they could certainly look at it and make their own evaluation. Discussion ensued regarding whether Ms. Montgomery was a tax attorney, whether Mr. Penman had a tax attorney on his staff, whether any rninimnm or maximnm hours had been established for Ms. Durr, etc. The suggestion that language be included in the motion that the resolution be approved subject to approval of the contract by City Attorney Penman was not included in the motion. The motion made by Council Member/Commissioner Brinker, seconded by Council Member/Commissioner Baxter, carried. Resolution No. CDC/2009-7 was adopted. Ayes: Baxter, Brinker, Kelley, Johnson. Nays: Estrada, McCammack. Absent: None. Vacant: Fourth Ward. 26. Report on rmal disposition of State Bar Complaint against City Attorney James F. Penman med by Arthur Margolis on behalf of Judith Valles Case No. 05-17429/08-0-10457 22 02/02/2009 City Attorney Penman submitted into the record and provided an overview of an inter-office memorandum from him to the Mayor and Common Council dated January 30, 2009. In addition to information regarding this agenda item, the memorandnm also included information regarding a request to utilize the services of Attorney Erica Tabachnick to provide ethics advice to the City Attorney's Office on an as-needed basis in an amount not to exceed $1,500 without further approval of the Mayor and Common Council; and the return of $30,514.11 from the City Attorney's budget to the general fund. Joe Ortiz, 387 West 25th Street, San Bernardino, CA, thanked Mr. Penman for making the City proud, stating that old political hacks, who would damage the City by making false allegations against the City Attorney, have been proven wrong once again. Council Member/Commissioner Baxter made a motion, seconded by Council Member/Commissioner Estrada, that the Mayor and Common Council authorize services of Erica Tabachnick, Attorney at Law, for City Attorney's Office ethics issues in an amount not to exceed $1,500. The motion carried unanimously with the Fourth Ward vacant. 27. Public Comments Joe Ortiz, 387 West 25th Street, San Bernardino, CA, stated that the cost of the City's graffiti removal program is double what the Los Padrinos program had cost. Richard Bernard, 1181 Montrose Avenue, San Bernardino, CA, stated that for the last 14 months he has been unable to use his backyard because of a pit bull in the yard behind his house. He made several allegations regarding how City personnel have failed to help him resolve the problem, including City Attorney Penman. Mr. Penman responded to the comments made by Mr. Bernard. C. Patience Summers, 868 E. Rialto Avenue, San Bernardino, CA, spoke regarding a young woman arrested during an Operation Phoenix sweep, stating that we should be giving people hope instead of trying to lock them up. Margie Arnett, 1681 E. Echo Drive, San Bernardino, CA, expressed surprise, in light of the tough economic times we are facing, that the Council would vote to spend $80,000 for new trucks for the City's anti-graffiti team; urged residents to buy locally; thanked those who volunteer locally; and provided a phone nnmber for anyone interested in mentoring a child (881-6760). She stated she would like to hear from individuals regarding their efforts to volunteer and help others-that they can contact her at www.joearnett.com. She also encouraged Fourth Ward residents to cast their votes for her husband, Joe Arnett, who is running for the Fourth Ward Council seat. 23 02/02/2009 Joe Arnett, 1681 E. Echo Drive, San Bernardino, CA, stated that he is a candidate for the Fourth Ward Council seat, that he will be a voice for the people, that he supports public safety, and that he will provide independent leadership for the Fourth Ward. 28. Adjournment At 9:14 p.m. the meeting adjourned. The next joint regular meeting is scheduled for 1:30 p.m., Tuesday, February 17,2009. RACHEL G. CLARK City Clerk By: b~.~ Linda E. Hartzel Deputy City Clerk 24 02/02/2009