HomeMy WebLinkAbout2007/05/01 Item 9
CITY COUNCIL
AGENDA STATEMENT
~\~CITYOF
fI ~"'" CHULA VISTA
MAY 1, 2007 Item~
SUBMITTED BY:
RESOUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VIST A WAIVING THE BID REQUIREMENTS,
APPROVING THE STAR NEWS AS THE NEWSPAPER OF
GENERAL CIRCULATION FOR THE PUBLICATION OF
ALL LEGAL NOTICES AND OTHER MATTERS
REQUIRED TO BE PUBLISHED BY THE CITY AND
APPROVING THE USE OF AL TERNA TIVE
PUBLICATIONS AS NECESSARY.
DIRECTOR OF FINANCE/TREASURER~
<
INTERIM CITY MANAGER d
ITEM TITLE:
REVIEWED BY:
4/STHS VOTE: YES D NO 0
BACKGROUND
The City Manager received a letter from the editor of La Prensa San Diego, asking to be considered
a qualified bidder for Legal and Public Notice Advertisement Services. In December 2006 a
Request for Bid (RFB 3-06/07) was issued and sent to six publications. Responses were
received from The Star News (San Diego Neighborhood Newspapers) our current vendor
who will provide service at the continued rate of$IO.25 per column inch and La Prensa San
~iego.1 Both newspaper publishers indicated their publications to be "Newspapers of
General Circulation". La Prensa San Diego for the City and County of San Diego and The
Star News for the City of Chula Vista. The publisher for The Star News indicated by cover
letter with RFB 3-06/07 that The Star News was the only newspaper adjudicated as a
newspaper of general circulation for the City of Chula Vista. The City Attorney's Office
was asked to research the issue and has provided a Memorandum of Law dated February 28,
2007 (Attachment "A"). The research determined that The Star News (San Diego
Neighborhood Newspapers) is currently the only publication that meets City Charter
requirements to be approved as a newspaper of general circulation for the City of Chula
Vista.
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MA Y 1, 2007 Item~
Page 2 of3
ENVIRONMENTAL REVIEW
The Environmental Review Coordinator has reviewed the proposed actlVlty for
compliance with the California Environmental Quality Act (CEQA) and has determined
that the activity is not a "project" as defined under Section 15378 of the State CEQA
Guidelines; therefore, pursuant to Section 15060 (c) (3) of the State CEQA Guidelines
the activity is not subject to CEQA. Thus, no environmental review is necessary.
RECOMMENDA nON
That Council adopt the resolution waiving the bid requirements and approving The Star
News as the newspaper of general circulation for the publication of all legal notices and
other matters required to be published by the City and approving the use of alternative
publications as necessary.
BOARDS/COMMISSION RECOMMENDA nON
Not Applicable
DISCUSSION
The Star News is the only newspaper that qualifies as a newspaper of general circulation
for the City of Chula Vista. The award will be based on the findings cited in the
Memorandum of Law dated February 28, 2007 (Attachment "A"), and the requirements
of section 313 (a) of the Chula Vista Charter (Attachment "B"). Because of the legal
findings the City will not award from the results of the RFB 3-06/07. The Star News
delivers 30,210 newspapers weekly throughout Chula Vista, 22,500 in home delivery, the
balance in bulk drops and routes.
Adoption of the resolution approves The Star News as the official newspaper of the City
of Chula Vista for the publication of all legal and public notices and other matters as
required and approves the use of alternative publications, such as The Daily
Transcript/San Diego and The San Diego Union Tribune, which publish daily, as
necessary. An alternative publication is sometimes necessary in order to meet a legally
mandated deadline that weekly publications cannot meet, or to publish certain election
notices in other languages. Besides English, Notices of Election are required to be
published in Filipino, Spanish, and Vietnamese. Those notices are published in
newspapers such as the Filipino Press. La Prensa San Diego, and Nguoi Viet Today
News, respectively.
In the future if other newspapers are adjudicated and become a newspaper of general
circulation for the City of Chula Vista the City will issue a Request for Bid as required in
the City Charter.
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MAY I, 2007 Item~
Page 3 of3
DECISION MAKER CONFLICT
Staff has reviewed the decision contemplated by this action and has determined that it is
not site specific and consequently the 500 foot rule found in California Code of
Regulations section 18704.2(a)(1) is not applicable to this decision.
FISCAL IMP ACT
There will be no fiscal impact on the budget since there will be no change in the way we
are currently doing business.
ATTACHMENTS
Attachment "A" Memorandum of Law, dated February 28, 2007
Attachment "B" Section 313(a) Chula Vista City Charter
Suzi Brooks, Acting Purchasing Agent, Finance Department, Purchasing Division
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ATTACHMENT A
CllY OF
CHUIA VISfA
OFFICE OFTHE CITY ATTORNEY
MEMORANDUM OF LA W
DATE: Febmary 28, 2007
TO: Councilmember Steve Castaneda
FROM: Sharon Marshall, Senior Assistant City Attorney
SUBJECT: Newspapers of General Circulation
MEMORANDUM OF LAW
QUESTION PRESENTED
What newspapers in the City of Chula Vista currently meet the requirements to be a
newspaper of general circulation, such that they qualify to publish all legal notices of the
City?
SHORT ANSWER
The basic mles for approval by the court as a newspaper of general circulation found in
Government Code section 6000 require that a newspaper provide local and telegraphic
news of general interest, have a bona fide subscription list of paying subscribers, and be
established, printed, and published at regular intervals in the city where official
advertising is to be given or made for at least one year before seeking approval by the
cOllii as a newspaper of general circulation. Government Code section 6008 provides
alternative qualification requirements by eliminating the printing requirement, but
increasing the time requirement to three years. It also adds a requirement that the
newspaper have only one principal office of publication and that office is in the city in
which it is seeking adjudication.
BACKGROUND
Chula Vista City Charter section 313 mandates that the City do an annual Request for
Proposals [RFP], inviting bids for the publication of all legal notices the City is required
to publish. However, the Charter also provides that if there is only one "newspaper of
general circulation" as that term is defined in the Government Code, the RFP process
may be waived and the newspaper can be designated as the City's official newspaper. In
1997, by Resolution Number 18793, the City Council waived the RFP requirement and
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ATTACHMENT A
276 FOURTH AVENUE' CHULA VISTA. CALIFORNIA 91910' (619) 691-5037' FAX (619) 409-5823
ATTACHMENT A
Councilmember Steve Castaneda
February 28, 2007
Page 2
designated The Star News as the City's official newspaper for purposes of publishing the
City's legal notices. The Star News has been the official City paper since that time.
Currently, only the Star News meets the requirements to be approved as a newspaper of
general circulation. However, should La Prensa, or any other newspaper, fulfill the
requirements of either Government Code section 6000 or 6008, the City would be
required to rescind the official newspaper designation for The Star News and rebid the
contract on an annual basis as required by Charter section 313.
Subsequently, the editor of La Pren.sa newspaper submitted a letter to the City Manager
indicating that it, too, is a newspaper of general circulation for the City, and submitted a
copy of the court order adjudicating it as a newspaper of general circulation for the
County of San Diego, the City of San Diego, and the San Diego Judicial District to
support his assertion that La Prensa is a qualified newspaper for publishing official
notices for the City. La Prensa is not printed in the City of Chula Vista and its principal
publication office is in National City. La Prensa asked that an RFP be issued so it might
bid on the contract for the publication oflegal notices for the City.
All the requirements regarding official notices and publications are currently in the
California Government Code. Previously, however, the identical sections were found in
the California Political Code. For purposes of this Memorandum, unless specifically
noted, all references are to the Government Code.
ANALYSIS
The statutory framework for the qualification of newspapers of general circulation is set
forth in Government Code sections 6000 through 6027. The basic requirements for court
approval or adjudication are that the paper: (1) publish local or telegraphic news and
intelligence of general character; (2) have a bona fide subscription list of paying
subscribers; and, (3) be established, printed, and published at regular intervals in the
state, city, or county where the official notices are to be published for at least one year
preceding the date of adjudication. Cal. Gov't Code S 6000.
The courts have said:
[T]he purpose of the statute' is the qualification of
newspapers to which the general public will resort in order
to be informed of the news and intelligence of the day and
thereby to render it probable that notices and official
adveliising published in the newspaper will be brought to
the attention of the general public.
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ATTACHMENT A
ATTACHMENT A
Councilmember Steve Castaneda
February 28,2007
Page 3
Lozano Enterprises v. Los Angeles Newspaper Services, 10 Cal. App. 3rd 1012, 1016
(1970).
Originally, Political Code section 4460 established the qualifications for newspapers of
general circulation and required newspapers be printed and published in the city seeking
adjudication. Early court decisions interpreted the meaning of the words "printed and
published" to mean that the paper be "produced in the community where it is aimed to
have it recognized as a legal advertising medium." In the Matter of D.D. McDonald,
187 Cal. 158, 161 (1921). The court said it "would be giving too narrow a meaning to the
word 'printed' to hold that these acts alone (setting up the type and making the
impressions on paper) were contemplated by its use in the statute." McDonald at 161.
However, in 1923, the Legislature added section 4463 to the Political Code, providing
that '''. . . The word 'printed' as used in said section [4460] shall mean, and be construed
to mean, that the mechanical work of producing such a newspaper of general circulation,
that is to say, the work of typesetting and impressing type on paper, shall have been
performed during the whole of the period as designated and required by said section.'''
Petitions of Herald Publishing, 152 Cal. App. 2d 901, 905 (1957). "The court concluded
that by the enactment of section 4463 the Legislature expressly intended to overcome the
effect of the McDonald case. . . ." Herald Publishing at 906. Subsequent cases reinforced
the Herald court's conclusion that by adding section 4463 the legislature intended that
both the mechanical process of printing the paper and the publication of the paper must
-occur in the city in which the newspaper seeks adjudication. Finally, courts have said
that, "[A]lthough a newspaper printed and published in one city may not qualifY as a
newspaper of general circulation for another city, it does qualifY as a newspaper of
general circulation for the county in which it is both 'printed' and 'published'." Western
States Newspapers Inc. v. Gehringer, 203 Cal. App. 2d 793, 797 (1962). Thus, based on
the language currently found in Government Code section 6000, the printing and
publishing requirement is mandatory and may not be waived.
Two intervening factors need to be considered in reaching the determination of whether
or not a newspaper meets the requirements to be approved by the court as a newspaper of
general circulation. The first factor was implemented in 1923, at the same time the
Legislature enacted the language specifically defining "printed." Political Code section
4465 (now Government Code section 6006) was added, which provided, "[N]othing in
this chapter alters the standing of any newspaper which, prior to the passage of Chapter
258 of the Statutes of 1923, was an established newspaper of general circulation,
irrespective of whether it was printed in the place where it was published for a period of
one year as required." Thus, any newspaper determined to be a newspaper of general
circulation prior to 1923 maintained its status. This exemption has been challenged as
being unconstitutional because the exemption allegedly arbitrarily discriminates against
newspapers established after 1923. :rn rej ecting the constitutional challenge, the court,
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ATTACHMENT A
,.....I""......r-.......'"" ..,,,............
ATTACHMENT A
Councilmember Steve Castaneda
February 28, 2007
Page 4
citing a previous Supreme Court case addressing the same issue, said it is not
"'unreasonable to exact certain requirements of a newspaper to be established in the
future which are not required of those long established and which have proved their right
to exist by full compliance with all the laws in force at the time of their establishment. ",
Whitehead Donovan Corp. v. Herald Publishing Company, 62 Cal. 2d 185, 187 (1964),
citing In re Byers, 219 Cal. 446, 450 (1933).
In 1951, a caveat was added that limited the exemption provided by section 6006 to those
newspapers that had not altered their city of printing or publication since the effective
date of the Act in 1923. This caveat was subsequently repealed in 1961, and the original
language preserving a pre-1923 newspaper's status was reinstated without limitation.
The Star News was established as a newspaper in 1919 (see attachment) and was printed
and published in the City of Chula Vista at that time. It thus falls within the exemption
provided by section 6006 and need not meet the printed and published requirement found
in section 6000. It also meets the remaining requirements of having a bona fide
subscription list and has been established for more than the requisite one-year period.
The second factor was the addition, in 1974, of Government Code section 6008. The
legislature realized the requirements of section 6000 were severely limiting in an era in
which newspapers printed in one city may be distributed in territories covering much
larger areas, such as the Union Tribune or Los Angeles Times. To address the issue, the
'legislature enacted section 6008, which provides alternative requirements for newspapers
unable to meet the printing and publishing requirements of section 6000. In section 6008,
the onerous provision that the newspaper be printed and published in the city where it
seeks adjudication was replaced by a less burdensome requirement that the newspaper
maintain its principal office in the city of adjudication. However, other requirements were
increased. The table below compares the requirements of the two statutes.
Gov't Code & 6000 ReQuirements Gov't Code & 6008 ReQuirements
. Bona fide subscription list of paying . Substantial distribution to paid
subscribers subscribers
. Printed and published at regular . One principal office of publication in
intervals m the city where the city seeking adjudication
publication is to be given . Established for the whole of a three-
. Established at least one year preceding year period
the date ofthe adjudication
ATTACHMENT A
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Councilmember Steve Castaneda
February 28, 2007
Page 5
ATTACHMENT A
The enactment of section 6008 raised two additional areas of dispute with respect to
whether or not a newspaper qualifies as a newspaper of general circulation. The first
question is the meaning of the phrase "a substantial distribution to paid subscribers in the
area in which it is seeking adjudication." Medeiros v. South Coast Ne-wspapers, 7 Cal.
App. 4th 982, 986 (1992). In Medeiros, the ratio of paid subscribers to inhabitants was
about 1.48 percent. Medeiros first argued this amount should be increased to include
newsstand sales. The court rejected this argument, noting that the Legislature originally
considered language that required only "a substantial distribution in the area in which it is
sold or distributed" (Medeiros at 986), but later changed the phrase to "a substantial
distribution to paid subscribers in the area in which it is seeking adjudication." Id. Based
on the pre-enactment legislative history, the court said "it is evident the legislature did
not intend to include newsstands in the substantial distribution requirement." Id. In
Medeiros, the court also determined that the relevant standard for determining
distribution was population rather than the number of households. Finally, the court
stated that, "[s]tanding alone, 1.48 percent is too small a number to be declared to be
substantial." Medeiros at 986. The court went on to say, however, that if all other papers
in the area had a similar percentage of population to paid subscribers, 1.48 percent might
be considered substantial. Id.
The [mal issue to be resolved by the courts was whether a substantial distribution
requirement should be read into the language of section 6000, which, as enacted, only
requires a "bona fide subscription list of paying subscribers." This issue was raised by the
. San Diego Transcript in In re San Diego Commerce, 40 Cal. App. 4th 1229 (1995). The
court flatly rejected the Transcript's argument and stated:
[T]here is no case authority whatsoever for the proposition
urged upon us by Transcript, that sections 6000 and 6008
must despite their differing language be read to contain the
same 'substantial distribution' requirement. What
Transcript truly requests is for this intermediate appellate
court to engage in judicial amendment of a legislative act,
because such an act is, in the view of Transcript, necessary
to achieve harmony with some underlying 'policy.' Such
judicial actions have been often criticized by appellate
courts themselves. We have no general power to rewrite
statutes to conform to some underlying 'policy.' As a rule,
there can be no intent in a statute not expressed in its
words; the intention of the Legislature must be determined
from the language of the statute.
San Diego Commerce at 1235, citing Woodland Joint Unified School Dist. v. Commission
on Professional Competence, 2 Cal. App. 4th 1429,1451 (1992).
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ATTACHMENT A
ATTACHMENT A
Councilmember Steve Castaneda
February 28, 2007
Page 6
La Prensa does not meet the requirements of either Government Code section 6000 or
6008. It is not printed and published in Chula Vista as required by Section 6000. Nor was
it established before 1923, which would make La Prensa eligible for the exemption of
Section 6006. Finally, La Prensa does not have its one principal office in the City.
However, nothing prohibits La Prensa from establishing itself in the City so that it may
meet the requirements of section 6008 and seeking court approval as a newspaper of
general circulation for the City at a later date.
CONCLUSION
The courts have strictly construed the provisions of Government Code sections 6000 and
6008, and have declined to read any additional requirements into the specific language of
the statute. Given the courts' construction of the relevant statutory provisions, there is
currently only one newspaper that qualifies as a newspaper Qf general circulation for the
City of Chula Vista, thus no bid process is required under Charter section 313. However,
should La Prensa establish at a later date that it meets the requirements of 6008 the
provisions of Charter section 313 would apply. Therefore, we conclude the City must go
out to bid if La Prensa establishes it meets the requirements of Government Code
section 6008.
~'ill\C)\~\~~~ \\
Sharon A. Marshall
Senior Assistant City Attorney
SAM:ccm
Attachment
cc: Cheryl Cox, Mayor
Suzamle Brooks, Senior Procurement Specialist, Finance DeI- .lent ~/
Susan Bigelow, City Clerk
9-9 ATTACHMENT A
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ATTACHMENT B
T R E C R ART E R
of the
CITY OF CHULA VISTA
Sec 313.
Publishinq of Leqal Notices.
(al Newspapers Generally. In the event that there is more
~han one newspaper of general circulation published and circulated
~n the city, the city Council annually, prior to the beginning qf
each fiscal year, shall publish a notice inviting bids and contract
for the publication of all legal notices or other matter required
to be published in a newspaper of general circulation published and
circulated in said city, during the ensuing fiscal year. In the
event there is only one newspaper of general circulation published
in the city, then the City Council shall have the power to contract
with such newspaper for the printing and publishing of such legal
notices without being required to advertise for bids therefor. The
newspaper with which any such contract is made shall be designated
the official newspaper for the publication of such notices or other
matter for the period of such contract.
(b) Rates. In no case shall the contract prices for such
publication exceed the customary rates charged by such newspaper
for the publication of legal notices of a private character.
(cl posting.. In the event there is no newspaper of general
circulation published and circulated in the City, then all legal
notices or other matter may be published by posting copies thereof
in at least three public places in the City:
(dl Defects. No defect or irregularity in proceedings taken
under this sections, or failure to designate an official newspaper
shall invalidate any publication where the same is otherwise in
conformity with the. Charter or law or ordinance.
ATTACHMENT B
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RESOLUTION NO. 2007-
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA WAIVING THE BID REQUIREMENTS,
APPROVING THE STAR NEWS AS THE NEWSPAPER OF
GENERAL CIRCULATION FOR THE PUBLICATION OF ALL
LEGAL NOTICES AND OTHER MATTERS REQUIRED TO
BE PUBLISHED BY THE CITY AND APPROVING THE USE
OF ALTERNATIVE PUBLICATIONS AS NECESSARY
WHEREAS, the City Manager received a letter from the editor of La Prensa San Diego,
asking to be considered a qualified bidder for Legal and Public Notice Advertisement Services; and
WHEREAS, in December 2006, a Request for Bid (RFB 3-06/07) was issued and sent to six
publications; and
WHEREAS, responses were received from The Star News (San Diego Neighborhood
Newspapers) and La Prensa San Diego; both newsJlaper publishers indicated their publications to be
"Newspapers of General Circulation"; and
WHEREAS, the publisher for The Star News indicated by cover letter with RFB 3-06/07 that
The Star News was the only newspaper adjudicated as a newspaper of general circulation for the
City ofChula Vista; and
WHEREAS, the City Attorney's Office was asked to research the issue and has provided a
Memorandum of Law dated February 21, 2007 (Attachment "A"); and
WHEREAS, the award will be based on the findings cited in the Memorandum of Law
(Attachment "A"), and the requirements of section 313 (a) of the Chula Vista Charter (Attachment
"B"); and
WHEREAS, the research determined that The Star News (San Diego Neighborhood
Newspapers) is currently the only publication that meets City Charter requirements to be approved
as a newspaper of general circulation for the City ofChula Vista; and
WHEREAS, because of the legal findings, the City will not award from the results of the
RFB 3-06/07; and
WHEREAS, adoption of the resolution approves The Star News as the official newspaper of
the City of Chula Vista for the publication of all legal and public notices and other matters as
required and approves the use of alternative publications, such as The Daily Transcript/San Diego
and The San Diego Union Tribune as necessary; and
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Resolution No. 2007-
Page 2
WHEREAS, an alternative publication is sometimes necessary in order to meet a legally
mandated deadline that weekly publications cannot meet, or to publish certain election notices in
other languages; and
WHEREAS, besides English, Notices of Election are required to be published in Filipino,
Spanish, and Vietnamese; and
WHEREAS, those notices are published in newspapers such as the Filipino Press, La
Prensa San Diego, and Nguoi Viet Today News, respectively.
NOW, THEREFORE, BE IT RESOLVED the City Council of the City ofChula Vista does
waive the bid requirements and approve The Star News as the newspaper of general circulation for
the publication of all legal notices and other matters required to be published by the City;
BE IT FURTHER RESOLVED THAT the Council does approve the use of alternative
publications as necessary.
Presented by
Approved as to form by
Maria Kachadoorian
Director of Finance
~~~~~~
Ann Moore
City Attorney
J:\Attomey\RESO\BIDS\Waiving bid rqnnts for StarNews~04-]7-07.doc
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