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HomeMy WebLinkAboutcc min 1991/09/10 MINIrI'F~ OF A REGULAR MEETING OF THE CHULA VISTA Ca'lY COUNCIL Tuesday, September 10, 1991 Council dhambers 6:03 p.m. Public Services Building CAIL TO ORDER 1. ROLL CALL: PRESENT: Councilmembers Grasser Herton, Rindone, and Mayor Pro Tempore Moore. ABSENT: Councilman Malcolm (attending Coastal Commission meeting) and Mayor Nader (in Washington D.C.) ALSO PRESENT: John D. Goss, City Manager; Bruce M. Boogaard, City Attorney; and Beverly A. Authelet, City Clerk 2. PLEDGE OF ~,IJ.RGIANCE TO THE FLAG, SILF_Rr PRAYER 3. APPROVAL OF MINlrrES: August 27, 1991 MSC (Rindone/Grasser Honon) to approve the minutes of August 27, 1991 as presented. Appmved 3-0-2 With CotlIlrflm~ll Malcolm add lV[ayor Nader absent. 4. SPECIAL ORDERS OF THE DAY: a. Oath of Office: Gloria Hicks - Human Relations Commission. Oath of office administered by City Clerk Authelet with certificate of appoinunent being presented by Counc~man Rindone. 15611 b. Prodalmlng the week of September 15-21, 1991 as *National Adult Day Care Center Week'. The proclamation was presented by Mayor Pro Tem Moore to Nancy Hitchcock, Program Manager of the South Bay Adult Day Health Center. CONSENT C~T ~-NDAR (Item pulled: 9) BALANC~ OF THE CONSENT CAT~.NDAR OFFERED BY COUNCILMAN RINDONE, reading of the text was waived, passed and approved 34)-2 With Counc~m~n Malcolm and Mayor Nader abserlt. 5. WPd rt-F./q COMMUNICATIONS: a. Request to allow *kiddie rides" in OIly Park on October 19th for the Community Fair - Richard Hermosfllo, Fair Chairman, Oray Committee. It is recommended that approval be granted, contingent on staffs conditions. 15612 Minutes September 10, 1991 Page 2 b. Request for changes in present Cardroom Ordinance - Rosemary Burger, Secretary Vegas Club Inc. It is recommended that the request for changes in the Cit3es present cardroom ordinance, be referred to staff for review and report back. 15613 c. Requestf~rwaiver~fthe~nitia~tudyandfee($~+~asrequiredbytheDesignReview-J~hn T. Sigurdson, Project Architect. It is recommended that the request for waiver of the initial study fee be waived, in accordance with Council Policy No. 267-05. The request to waive the Initial Study itself cannot be granted. 15614 d. Request for waiver of Conch'tional Use Permit Fees ($175), Design Review Fees ($200), and Building Permit Fees for temporaxy classroom - Rev. Roger Wagner, Bayview Orthodox Presbyterian Church, 505E. Naples Street, Chula Vista, CA 92011. It is recommended that the request for waiver of the conditional use permit and design review fees be approved in accordance with Council policy 267-05. It is not recommended that the building permit fees be waived. 15615 Councilman Rindone stated he was in support of the staff recommendation to waive the fees provided that the facilities are not utilized in the future for-profit. He assumed that the staff validated this issue before recommending waiver and questioned whether there needed to be a policy in which facilities that are granted waivers not rent for-profit at a later date. City Manager Goss recommended that staff return with a policy proposal for Council review. With a set policy, everyone would be aware of the requirement at the time of the request for waiver. e, Requestt~diminatedanger~usc~nditi~ns~nMainS~reetatA~bany~Ant~ni~Castr~~Sr.~~~8Tenth Street, Chula Vista, 91910. It is recommended that Mr. Castro's letter be received and filed and that he be provided a copy of the Departmenfs memo. 15616 6. ORDINANCE 2477 ESTABLISHING A SPECIAL SEWER RATR AREA FOR THE WOODCREST TERRA NOVA SUBDM SION (first reading) - The ordinance establishes a special sewer service rate area to provide for City costs associated with maintenance and operation of a sewer pump station serving the Woodcrest Tenca Nova Subdivision. Staff recommends Council place ordinance on first reading. (Director of Public Works) 15617 City Attorney Boogaard informed Council that a revised Exhibit 2 had been distributed which correctly reflected the parcels which would be subject to the additional charge. The new Exhibit 2 should be amended into the Ordinance and could be done as part of the Consent Calendar. 7.k RESOLUTION 16338 AMENDING THE CITY GENERAL PLAN PROM "RESEARCH AND LIMITED MANUFACIIIRING' TO "RETAIL COMMER(]AL' FOR THE MONTGOMERY SPECIFIC PLAN PROM 'RESEARCH AND LIMI-itD INDDS~I-RIAL" TO qVIERCANI]Ii AND OFFICE COMMERCIAL" CERTAIN TERRITORY GENERALLY BOUNDED BY MAIN STREET TO THE NORTH, BROADWAY (BEYER BO~ARD ) TO THE EAST, FAIVRE b-I'REET TO THE SOUTH, AND 27TH STREET TO THE WEST Gs, SSESSORS pAR~RI. NUMBERS 629-040-01 AND 629-010~)1) AND AMENDING THE LAND USE DIAGRAM OF THE CITY GENERAL PLAN BY REDESIGNATION PROM "LOW-MEDIUM DENSITY RESIDENTIAL (3-6 DU/AC)" AND · SPECIAL STUDY' TO 'RETAIL COMMERCIAL" FOR APPROXIMATELY 3.65 ACRES OF LAND, LOCATED AT THE SOUTHEAST CORNER OF EAS~ H STREET AND OTAY LAKES ROAD - The City initiated proposal involves the rezoning of the Otay Market property. The Kelton Title site (Otay Lakes Plaza) is privately initiated. Adoption of the resolution and ordinance will implement Council actions taken on these items at Minutes September 10, 1991 Page 3 the public hearing held 8/27/91. Staff recommends approval of the resolution and that Council place the ordinance on first reading. 15618 B. ORDINANCE 2478 REZONING CERTAIN TERRITORY GENERALLY BONDED BYMAIN STREET TO THE NORTH, BROADWAY (BEYER BOULEVARD) TO TI-IE FAST, FAIVRE STREET TO THE SOLFII~ AND 27TH STREET TO THE WEST (ASSESSORS pARCRI. NUMBERS 6294M04)1 AND 629-010-01) FROM IHF_,IR CITY-ADOPTED COUNTY ZONE CLASSIFICATION C-37 TO CI-IY ~CATION C-T-P AND TO CHANGE THE ZONING CI,ASSWICATION FROM R-1 TO C-C-P FOR APPROXIMATELY 3.65 ACRF_,S OF LAND I,OC~IED AT THE SOIJTI-F,.tK~ CORNER OF FAsST H STREKF AND OTAY LAKES ROAD (first reading) 15619 8. RESOLUTION 16339 RATIFYING A THREE YEAR AGBF-F-MF, NT WITH THE CHAMBER OF COMMERCE FOR GENERAL INFORMATION SERVICES - The previous contract with the Chamber was for one year with two one-year extensions. The proposed contract effectively extends the agreement for three years with some amendments to services and payment schedule. Staff recommends approval of the resolution. (Deputy City Manager Thomson) 15620 9. RESOLUTION 16340 APPROVING SETTLF_.IVIENT AGREEMENT,/~RI EASE AND MODIFICATION ~vl-rH (]-IULA VISTA CABLE AND PROVIDING NOTICE TO CHULA VISTA CABLE OF A 'RENEGOTIATION INTERVAL' PURSUANT TO SECTION 3.b.(1) OF THE FRANCHISE AGImRRMF2CF - The purpose of the settlement agreement is to resolve two ongoing issues with Chula Vista Cable: 1) past due franchise fee payments to the City, and 2) responsibility for possessory interest taxes levied by the County. The resolution also provides notice of a "renogiation interval". Staff recommends approval of the resolution. (Director of Finance) Pulled from Consent Calendar. 15621 Councilwoman Grasser Horton questioned what a cable billing presentation policy would be. City Attorney Boogaard responded that staff had been working on developing a policy that would require a proper method of presenting on a billing the cost of government regulation that the cable companies, or a least one of them, is now desirous of showing. The policy would establish the requirement by the operator to properly distribute the cost of these franchise fees equally among the rate payer base, require that they be collected and used for the purpose that is explained on the billing, and properly accounted for. It is hoped that this policy will be before Council within the next one or two months. Counc~woman Grasser Horton questioned if this was a new company in 1987 and if the City was their first contract. She also questioned why they would wait until 1990 to make this an issue. Lyman Christopher, Director of Finance, responded that in 1987 the franchise agreement was awarded to Altronics, which was a new firm in the City, and it was the first franchise issued. He would defer the remainder of Counc~woman Grasser Honon's question to Martin Aultbaum. Martin Aultbaum, President of Chula Vista Cable, responded that his finn had paid the franchise fees for the first year plus. At that time there was a suit regarding possessory users tax in which Cox Cable had won. They had been advised then by their chief financial advisor that they were not legally responsible for the possessory user's tax under their franchise. If they were to be held responsible for those fees they would then deduct that tax from the franchise fees, thus not paying franchise fees. Upon reflection, he personally decided that was an improper policy, and that in fact, the City of Chula Vista should not be penalized because he could use the law. This has caused the City of Chula Vista to lose money and the County to gain, therefore, he would like to voluntarily pay what he owes and request that the interest be waived. He felt Minutes September 10, 1991 Page 4 what staff was proposing was fair and he was sorry that he had not paid it before. It would have been a nicer gesture if he had paid it from day one. Councilwoman Grasser Hotton stated that from his comments, Mr. Aultbaum knew since 1984 that there was a possessory user's tax due to a cable company. Mr. Aultbaum responded that was correct but at that time there was no plant and therefore no property tax bill of consequence. As you put wires and amplifiers up, and the more you achieve, the more your tax bill goes up. As the company continued to grow the tax bills reached $10,000 which was a lot of money for a consumer base. He stated Councilwoman Grasser Hotcon was right, he knew about the situation all along, but the tax bill was negligible Councilwoman Grasser Horton stated that as she understood the law, that they had received notice and were liable for the possesson/user's tax payments even though not specifically included in the franchise. Mr. Aultbaum responded knew he was liable to the County but the contract did not have that included. There is a legitimate legal question as to whether the City can do that, but rather than going into litigation, He was offering to do that now but his contract did not have a statement regarding the possessory user's tax. It is now being put into the contract so there will be no question in the future. Councilwoman Grasser Horton referred to the California Revenue and Taxation Code at which time City Attorney Boogaard stated she was reading it correctly. He further stated that Mr. Aultbaum had made a major admission. Councilwoman Grasser Hotton stated the issue was not that the possesson/user's tax was not included in the contract, but the issue was that he had notice that he was liable for the possesson/user's tax. Mr. Aultbaum responded that San Diego had the same situation and Cox Cable sued them and won. He did not think that he should withhold payment at this time and that was why he had come before the Council tonight. He was told by legal counsel that the San Diego case was a case that showed that the possessory user's tax could be deducted from the franchise fees. Councilwoman Grasser Horton requested that this be referred to the City Attorney. City Attorney Boogaard responded that the section of the California Revenue and Taxation Code referred to stated that there was a rebuttable presumption that he had no knowledge that the contract is absent the disclaimer. Mr. Aultbaum has just cleared that up by saying that he did have that knowledge, which is helpful. In addition to the uncertainty that previously existed, Mr. Aultbaum has never previously said what he said tonight, there are other policy reasons and therefore staff is recommending settlement of this claim. It is basically costing the City $950 and staff views the matter, in addition to avoiding litigation, which now has been substantially diminished, it is also believed that the City is helping a struggling cable operator in an effort to establish a competitive base in the City. Staff views this as a reasonable balance in addition to the legal chances of success, even if Mr. Aultbaum's legal claim may not be that sound. Councilwoman Grasser Hotton stated that due to the situation she would not pursue this but under any other circumstances she probably would and she felt the City would win. City Attorney Boogaard stated that the chances in court were probably very good, but in spite of that staff was recommending six months of time in which to pay this. If Mr. Aultbaum fails to make a payment at any time, interest will accrue, if payments are made on time there will be no interest charged with the total cost being $950 to the City. Minutes September 10, 1991 Page 5 Councilwoman Grasser Horton stated that her concern was over the quality of service the residents receive. Councilman Rindone felt there were several key issues. He felt the length of the contracts and franchises in the past discouraged competition within the City. There needed to be a policy discussion regarding the awarding of contracts and franchises and the length of those contracts. It is in the best interest of the citizens to keep the terms shorter, ensure proper review, and encourage competition. He was very pleased with the additional information provided by staff in response to his questions. His other concern was the full cost - there was an additional $4,000 of staff time in addition to the $950. While he could support what staff had done, he was concerned over the complexity of the issue and recommended that the item be continued to the meeting next week to be heard by the full Counc~. MS (Rindone/Moore) to continue Resolution 16340 to the Council meeting of September 17, 1991. Mr. Christopher informed Council that the resolution dealt with two issues. The first being the agreement, release and modification of the agreement with Chula Vista Cable and the second being the Notice to Chula Vista Cable of a Renegotiation Interval. In order to meet the time frames of the franchise he requested that the resolution be bifurcated with Council taking action on the Notice of Renoglation Interval. City Attorney Boogaard stated the City would lose their fight to negotiate and would result in an automatic five year extension if action is not taken tonight. Councilman Rindone reiterated that was one of the critical points he had discussed, He was against any automatic extension of a conU'act or franchise. Under that advisement he would amend his motion to bifurcate the resolution. MOTION WITHDRAWN: (Rindone/Moore) to continue Resolution 16340 to the Council meeting of September 17, 1991. City Attorney Boogaard recommended that the last paragraph of the resolution on page 9-5 and the first paragraph on page 9-6 be deleted. The new title of the resolution will read: PROVIDING NOTICE TO CHUM VISTA CABLE OF A "RENEGOTIATION INTERVAL" PURSUANT TO SECTION 3.B.(1) OF THE FRANCHISE AGREEMENT. Councilman Rindone stated that would meet his objectives to obtain the greatest legal protection for the City and allow the full Council to review the portion regarding negotiated settlement. RE.P~LLrflON 16340 OFFERED BY MAYOR PRO TEMPOtLE MOORE, reading of the text was waive& AMENDtdFJN7 TO MOTION: CRindone/Moore) to amend Resolution 16340 as recommended by the City Attorney. Approved 3-0-2 with Counnlman Malcolm and Mayor Nader absent. Councilwoman Grasser Horton stated that in some situations the terms of certain franchises should be reviewed but in this situation the company had to make ~emendous initial investments and therefore needed a longer contract in order to provide lower costs to the community. This needed to be considered during negotiations. Councilman Rindone agreed with Councilwoman Grasser Horton and that was why he had requested the survey of franchises. The City needed to be aware of the options before them so they could negotiate in the best interests of the City. Minutes September 10, 1991 Page 6 ) VOTE ON RY, SOLUTION 16340, AS/k-M~I~q)ED: approved 3-0-2 with Councilman Malcolm and Mayor Nader absent. MSC (Pindone/Moore) to continue the settlement agreement, release, and modification with Chula Vista Cable to the Council meeting of September 17, 1991. Approved 3-0-2 with Councilman Malcolm and Mayor Nader absent. 10. RESOLUTION16341 AMENDING THE SEWFI SERVICE CHARGE VARIANCE FOR TI-IB CHULA VISTA RI~MENTARY SCHOOL DISTRICT - On 6/4/91, Courteft adopted a new rate schedule for sewer service charges. The existing sewer senrice variance which was granted to the Chula Vista Elementary School District in 1965 has never been updated. In order to comply with these new rates and to correct several other issues, the variance must be mended. Staff recommends approval of the resolution. (Director of Public Works) 15622 Counc~men Rindone stated that the Resolution established a policy that had been going on administratively for twelve years. It was not a change, as the report indicated, true school enrollment was based on ADA and he was supportive of that. He felt k was important that the clarification be made at this time. * * END OF CONSENT CALENDAR * * PUBLIC HEARINGS AND I!EIATED RESOLUTIONS AND ORDINANt'~_¢; 11. PUBLIC HEARING PROPOSED ISSUANCE BY ~ INDUSTRIAL DI/v'ELOPlVlLNT AUTHORITY OF ~ CITY OF CI-IULA VISTA OF INDUSTRIAL REVF2qUE BONDS IN AN AMOUNT NOT TO EXC~.F.I~ $4 lVHIJJON FOR THE PURPOSE OF ASSISTING THE FINANCING OF A FACILITY TO BE LEASED AND OPF21ATED BY GOLD COAST FJqGINEF2~NG, INC. - On 8/13/91, the Industrial Development Authority approved an inducement resolution for the issuance of up to $4 million in Industrial Development Bond (IDB) for the construction of manufacturing facilities by Gold Coast Engineering (Sutherland/Palumbo Partnership). The proposed IDB's must be issued in compliance with the Federal Internal Revenue Code in order to maintain their tax exempt status. This code requires public hearing and approval by the public agency (City) sponsoring the IDB's. Applications for financing will be submitted to the California Industrial Development Financing Advisory Commission (CIDFAC) and the California Debt Limit Allocation Commission (CDLAC) for review and approval. Staff recommends Council hold the public hearing and approve the resolution. (Director of Community Development) 15623 Fred Kassman, Redevelopment Coordinator, informed Council that the public hearing was a federal Intemal Revenue requirement. If approved tonight the application will be heard later this month by CIDFAC and in October by CDLAC. Mayor Pro Tempore Moore questioned if there was a need for the application to be reviewed by the Industrial Development Authority. Mr. Kassman responded that there was no need, the application needed Council approval at this time. This being the time and place as advertised, the public hearing was declared open. There being no public testimony, the public hearing was declared closed. Minutes September 10, 1991 Page 7 RESOLUTION 16342 OFP-~ED BY MAYOR PRO TEMPORE MOORE, reading of the text was waived, passed and approved 3-02 with Councilman Malcolm and Mayor Nader absent. RESOLUTION 16342 APPROVING A PRO~ECT FOR GOLD COAST ENGINEERING, INC. AND SUTHERLAND/PALUMB0, A CALIFORNIA GENERAL PARTNERSHIP ORAL COMMUNICATIONS None. ACTION ITEMS None submitted. BOARD AND COMMISSION RECOMMENDATIONS None submitted. ITEMS pUI.I.Rn FROM THE CONSENT CAI.RNDAR Item pulled: 9. The minutes will reflect the published agenda order. OTHER BUSINESS 12. CITY MANAGERS REPORT(S) Stated that during the Mayors Breakfast it was implied that the City had been "dragging its heels" regarding the processing of a building permit for Rohr Industries. The City has not received an application from Rohr Indusu-ies as of this date. 13. MAYORS REPORT(S) a. The diversion of trash from the North County was before the Board of Supervisors. The Supervisors voted 3-2 not take action regarding the diversion of 40 tons/day to Chula Vista and 40 tons/day to San Marcos. The City position was that Chula Vista wanted to cooperate but was looking for positive action from the North County cities and requested that they drop their lawsuits, joint together regarding short and long range solutions, and present their proposal and/or recommendations, in writing, to Chula Vista to show their sincerity in solving their problems. The City should probably work with the County to see where our next landfill will be sited as it is a lengthy process. 15624 b. Reminded Board and Commission Members that the City Clerk would be holding a Boards/Commission seminar on Monday, September 16, 1991 at 5:30 p.m. in the City Council Chambers. Minutes September 10, 1991 Page 8 ) 14. COUNCIL COMI~IF~FI~ Councilman Rindone: a. Undergrounding of utilities on 5th Avenue between 'L' and Orange Streets. He stated Lhe Sth Avenue project was progressing quite well and he was pleased with the progress. He was concerned that the undergrounding of utilities for this project was not initially included. He would like to consider undergrounding as contracts are awarded on Sth Street from Naples to Orange and then Main Street along with other major projects that will be undertaken. 15625 John Lippitt, Director of Public Works, responded that the list of undergrounding projects was last revised in 1984. If Council wanted to underground 5th Avenue it could be done but would result in a delay of the existing project of approximately one year and the beginning of the new project by approximately one year. In that case, the entire project could probably be done at one time. Mayor Pro Tempore Moore felt the utilities undergrounding program should be brought back in a Workshop atmosphere. Councilman Rindone felt that when a report was brought back for Council, staff should address ways to accomplish the undergrounding and to mitigate the amount of time for the current project. Mr. Lippitt informed Council that the contractor has agreed to withhold the top layer of pavement for two weeks. He needed direction from Council tonight as it has already been one week. Councilwoman Grasser Horton questioned the listing of projects and whether they were listed by priority. She felt there were other streets that were higher priority than 5th Avenue. Councilman Rindone agreed but felt that when a major project was being done Council should consider undergrounding at that time. Mayor Pro Tempore Moore stated that the coordination between the utilities, cable, and City was often difficult. City Manager Goss agreed that the utilities can not always move as fast as the City regarding a project of this type. City Manager Goss responded that if the contractor will only hold off for one more week, and the City asks that they hold off for one year, the City may have to absorb that part of the contract and leave that street as is until that work is done and have a contractor, at a negotiated price, lay the other layer. The other option is to complete the project and address the issue when doing Naples to Orange. Councilman Rindone stated he suspected that the current project was to far along but requested a report for next week so Council could review at that time. It may turn out that going back and doing the utilities for the entire project may be cheaper than delaying the current contract at this time. b. The Third Avenue businessmen have requested a police foot patrol. He would like to refer to staff this item with a report back to Council. This may not need to be an official agenda item if staff finds this is unsatisfactory in which case it could be an Information Item. If it would appear that this could be successful it should be brought back as an agenda item. Minutes September 10, 1991 Page 9 c. Clarification of the referral regarding a policy for waiver of fees for non-profit facilities (Item 5d on the Agenda). ADJOURNMENT The City Council met in a closed session at 7:07 p.m. to discuss: Pending litigation pursuant to Government Code Section 54956.9 - White venus City of Chula Vista Pending litigation pursuant to Government Code Section 54856.9 - City of Chula Vista venus CalTrans - SR 125. Potential litigation pursuant to Government Code Section 54956.9 - County trash diversion to city landfill. Instruction to negotiators regarding compensation for represented and unrepresented employees (or both), and mid-management and executive management pursuant to Government Code Section 54957.6. ADJOURNMENT AT 8:15 P.M. to the Regular City Council Meeting on September 17, 1991 at 6:00 p.m. in the City Council Chambers. Respectfully submitted, BEVERLY k AUTHELET, CMC, City Clerk by: Vicki C. Soderqui~t, Deputy~Clerk