The URL can be used to link to this page

Home My WebLink About2008/10/07 Agenda Packet I declare under penalty of perjury that I am employed by the City of Chula Vista in the Office of the City Clerk and that I posted this document on t~e bulletin board accordi.l1ll ~, " Brown Act reqUlrements'91P1~ ~\ I ~ d~Slgned~',~~ C1lY OF CHUlA VISTA /lJ &'t Cheryl Cox, Mayor Rudy Ramirez, Councilmember Scott Tulloch, Interim City ,\-1anager John McCann, Councilmember Bart Miesfeld, Interim City Attorney Jerry R. Rindone, Councilmember Donna Norris, City Clerk Steve Castaneda, Councilmember October 7, 2008 4:00 P.M. Council Chambers City Hall 276 Fourth Avenue CALL TO ORDER ROLL CALL: Councilmembers Castaneda, McCann, Ramirez, Rindone, and Mayor Cox PLEDGE OF ALLEGIANCE TO THE FLAG AND MOMENT OF SILENCE SPECIAL ORDERS OF THE DAY . PRESENTATION BY CHULA VISTA WAL-MART STORE MANAGER LUIS JACOBO A.."JD CO-MANAGER TODD RALEY OF $4,000 TO THE CITY OF CHULA VISTA . INTRODUCTION BY BRAD REMP, ACTING DIRECTOR OF PLANNING AND BUILDING, OF EMPLOYEE OF THE MONTH, C'\RLOS FERNA."JDEZ, SENIOR PLANNING TECHNICIAN . OATHS OF OFFICE Charlene Tressler to the Child Care Commission Keith Blum to the Veterans Advisory Commission David Garza to the Youth Action Council . PRESENTATION BY MAYOR COX OF A PROCLAMATION TO EMM.t\ MCCLEES, SENIOR RISK MANAGEMENT SPECIALIST, DECLARING THE WEEK OF OCTOBER 6-10, 2008 AS DRIVE SAFELY TO WORK WEEK IN THE CITY OF CHULA VISTA ' . PRESE~-HATION BY MAYOR COX OF A PROCLAMATION TO INTERIM FIRE CHIEF JIM GEERING AND FIRE MARSHAL JUSTIN GIPSON PROCLAIMING THE WEEK OF OCTOBER 5-11, 2008 AS FIRE PREVENTION WEEK . UPDATE ON PROPOSITION "0" PROJECTS BY DR. GANDARA, SWEETWATER UNION HIGH SCHOOL DISTRICT SUPERINTENDENT Page 1 - Council Agenda httn ://y.,IWW .ch uJavlstaca. eov Octobet 7, 2008 CONSENT CALENDAR (Items I through 4) The Council will enact the Consent Calendar staff recommendations by one motion, without discussion, unless a Councilmember, a member of the public, or staff requests that an item be removed for discussion. If you wish to speak on one of these items, please fill out a "Request to Speak "form (available in the lobby) and submit it to the City Clerk prior to the meeting. Items pulled from the Consent Calendar will be discussed immediately following the Consent Calendar. I. APPROVAL OF MINUTES of July 23 and July 29, 2008. Staff recommendation: Council approve the minutes. 2. WRITTEN COMMUNICATIONS A. Letter of resignation from Stan Canaris, member of the Growth Management Oversight Commission. B. Letter of resignation from Mikki Zibowski, member of the Commission on Aging. Staff recommendation: Council accept the resignations and direct the City Clerk to post the vacancies in accordance with Maddy Act requirements. 3. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AMENDING THE FISCAL YEAR 2008/2009 OTA Y RANCH VILLAGE 2 NEIGHBORHOOD PARK BUDGET, A.."-fD APPROPRIATING $Ll93,670 FROM THE AVAILABLE PARK ACQUISITION AND DEVELOPMENT FUND BALANCE TO REIMBURSE OTA Y PROJECT, L.P. (4/5THS VOTE REQUIRED) Otay Project L.P. deposited Park Acquisition and Development fees in the amount of $1,196,670 to satisfy Tentative Map Condition No. 95 for Village 2 North Unit I. At the request of Otay Project, L.P., the [mal map was not presented for City Council approval, and they are now requesting a refund of said fees. (City Engineer/Engineering Director) Staff recommendation: Council adopt the resolution. 4. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AUTHORIZING THE MAYOR TO EXECUTE AN EASEMENT DEED GRANTING AN EASEMENT OVER A PORTION OF CITY OWNED LAND TO THE UNITED STATES GEOLOGICAL SURVEY FOR THE INSTALLATION, OPERATION, AND MAINTENANCE OF A MULTI-DEPTH GROUND WATER MONITORING WELL No comprehensive study of groundwater resources currently exists for the coastal San Diego area, including Chula Vista. The present United States Geological Survey (USGS) project proposes to complete such a study using the installation of multi-depth monitoring wells at select specific locations in four coastal river basins; San Dieguito, San Diego River, Sweetwater River, and the Otay River. Adoption of the resolution approves the request of the USGS that the City grant an easement to allow the installation of one of these monitoring wells adjacent to the Otay River. (City Engineer/Engineering Director) Staff recommendation: Council adopt the resolution. Page 2 - Council Agenda htto ::'/\.\/ww. ch ulavistaca. 2:OY October 7. 2008 ITEMS REMOVED FROM THE CONSENT CALENDAR PUBLIC COMMENTS Persons speaking during Public Comments may address the Council on any subject matter within the Council's jurisdiction that is not listed as an item on the agenda. State law generally prohibits the Council from discussing or taking action on any issue not included on the agenda, but, if appropriate. the Council may schedule the topic for future discussion or refer the matter to staff Comments are limited to three minutes. ACTION ITEMS The ltem(s) listed in this section of the agenda will be considered individually by the Council, and are expected to elicit discussion and deliberation. If you wish to speak on any item, please fill out a "Request to Speak" form (available in the lobby) and submit it to the City Clerk prior to the meeting. 5. A. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE FIRST AMENDMENT TO THE DESIGNIBUILD AGREEMENT WITH ERICKSON-HALL CONSTRUCTION CO. FOR THE DESIGN AND CONSTRUCTION OF MT. SAN MIGUEL COMMUNITY PARK TO REVISE THE GUARANTEED MAXIMUM PRICE B. RESOLUTION OF THE CITY COG'NCIL OF THE CITY OF CHULA VISTA AMENDING THE FISCAL YEAR 2008/2009 CIP PROGRAM AND APPROPRIATING $7,769,399 FROM THE AVA1LABLE PARK ACQUISITION AND DEVELOPMENT (PAD) FUND BALANCE TO EXISTING CAPITAL IMPROVEMENT PROJECT, MOUNT SAN MIGUEL COMMlJNITY PARK (CIP PR260) TO COMPLETE THE PROJECT (4/5THS VOTE REQUIRED) The City Council previously approved CIP Project No. PR260, and the Master Plan for Mount San Miguel Community Park, which conceptually designed and provided for the construction of a completed and fully functional 19-acre park. On September 19, 2006, Council approved a Design Build Agreement with Erickson-Hall Construction Co. for this park which contained a not-to-exceed price of $5,841,067 with the Guaranteed Maximum Price (GMP) to be set upon receipt of 90% construction drawings. The project is nearing the end of the design phase and ready to start the construction phase. Adoption of the first resolution approves the first amendment that will set the GMP at $8,688,462, and amends the Fiscal Year 2008/2009 CIP Program. The second resolution approves an appropriation of $7,769,399 to the existing CIP PR260 for said purpose. (City Engineer/Engineering Director) Staff recommendation: Council adopt the resolutions. Page 3 - Council Agenda htt,p :/./~'ww.c h ulavistaca. !WV October 7. 2008 6. REPORT REGARDING REQUEST THAT THE CITY SEEK REIMBURSEMENT FROM THE SAN DIEGO COUNTY DISTRlCT ATTORNEY FOR LEGAL FEES INCURRED IN RESPONSE TO GRAND JURY INVESTIGATIONS This item has been prepared in response to a referral by Councilmembers Ramirez and Castaneda regarding reimbursement by the San Diego District Attorney's Office of legal fees incurred by the City related to prosecution activities by the District Attorney's Public Integrity Unit. (Interim City Attorney) Staff recommendation: That the Council take action as it deems appropriate. 7. DISCUSSION REGARDING DOCUMENTS RELEASED PURSUA...'JT TO CITY COUNCIL RESOLUTION NO. 2008-232 AT THE CITY COlTNCIL MEETING OF SEPTEMBER 23, 2008 (Interim City Manager) OTHER BUSINESS 8. CITY MANAGER'S REPORTS 9. MA YOR'S REPORTS 10. COUNCIL COMMENTS CLOSED SESSION Announcements of actions taken in Closed Session shall be made available by noon on Wednesday following the Council Meeting at the City Attorney's office in accordance with the Ralph M Brown Act (Government Code 54957.7). 11. PUBLIC EMPLOYEE APPOINTMENT PURSUANT TO GOVERNMENT CODE SECTION 54957 Title: Fire Chief 12. PUBLIC EMPLOYEE PERFORMANCE EVALUATION PURSUANT TO GOVER.c'JMENT CODE SECTION 54957 Title: City Manager 13. PUBLIC EMPLOYEE APPOINTMENT PURSUANT TO GOVERNMENT CODE SECTION 54957 Title: City Manager 14. CONFERENCE WITH LEGAL COUNSEL REGARDING EXISTING LITIGATION PURSUANT TO GOVERNMENT CODE SECTION 54956.9(a) A. Loretz v. City of Chula Vista (Brentwood Mobile home Park I), Court of Appeal, 4th District, Case No. 0051623 (Appeal from SDSC Case No. GIS-2849l); and B. City ofChula Vista v. Loretz. et al (Brentwood Mobilehome Park II), San Diego Superior Court Case No. 37-2007-0079308-CU-OR-SC Page 4 - Council Agenda httn:.'wv,,"w.chulavistaca.!Zov October 7. 2008 15. CONFERENCE WITH LEGAL COUNSEL REGARDING SIGNIFICANT EXPOSURE TO LITIGATION PURSUANT TO GOVERNMENT CODE SECTION 54956.9(b) 1 Case ADJOURNMENT to the Regular Meeting of October 14, 2008 at 6:00 p.m. in the Council Chambers. Materials provided to the City Council related to any open-session item on this agenda are available for public review at the City Clerk's Office, located in City Hall at 276 Fourth Avenue, Building 100, during normal business hours. In compliance with the AMERICANS WITH DISABILITIES ACT The City of Chula Vista requests individuals who require special accommodations to access, attend, and/or participate in a City meeting, activity, or service, contact the City Clerk's Office at (619) 691-5041 or Telecommunications Devices for the Deaf (TDD) at (619) 585-5655 at least forty-eight hours in advance for meetings and jive days for scheduled services and activities. California Relay Service is also available for the hearing impaired. Page 5 - Council Agenda httD :,:',i'l/f'Vo/W .ch ulavistaca.?o v October 7. 2008 DRAFT MINUTES OF A SPECIAL MEETING OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA July 23, 2008 6:00 P.M. A Special Meeting of the City Council of the City ofChula Vista was called to order at 8:02 p.m. in the Council Chambers, located in City Hall, 276 Fourth Avenue, Chula Vista, California. ROLL CALL: PRESENT: Councilmembers: Castaneda, McCann, Ramirez, Rindone, and Mayor Cox ABSENT: Councilmembers: None ALSO PRESENT: City Manager Garcia, Interim City Attorney Miesfeld, Interim City Clerk Norris, and Deputy City Clerk Bennett PUBLIC COMMENTS Richard Preuss, representing Chula Vista Employees Association, spoke in support of the proposed Utility Users' Tax being placed on the ballot, and he encouraged the Council to approve adoption of the proposed resolutions. ACTION ITEM 1. CONSIDERATION OF PLACING A MEASURE RELATING TO THE CITY'S TELECOMMUNICATIONS UTILITY USERS' TAX ON THE BALLOT FOR THE SPECIAL MUNICIPAL ELECTION TO BE HELD ON TUESDAY, NOVEMBER 4, 2008 Chula Vista's Utility Users' Tax (UUT) was adopted in 1970 as a means to help fund public services and capital improvement projects through the City's General Fund. The City receives UUT based on the usage of natural gas, electricity and telecommunications. In fiscal year 2006-07, the total UUT received was approximately $7.0 million, which represents 4.3% of General Fund revenues. The current rates charged are .00919 per therm, .0025 per kilowatt, and 5% on telephone. There are over 150 cities in California with a Utility Users Tax. City staff is recommending that the UUT on telecommunications be updated. The resolutions presented for the Council's consideration would (i) approve an ordinance to be submitted to the voters for this purpose; and (ii) appropriate the funds necessary to cover the related costs. (Finance Director) Director of Conservation and Environmental Services Meacham addressed the issues that were raised regarding this measure during the Council meeting of July 15, 2008. He then explained the proposed changes made to the measure since that time, including revised ballot language and an amendment to the ordinance that would require an annual review of the Utility Users' Tax. J A -I DRAFT ACTION ITEM (Continued) David Krogh, Chula Vista resident, spoke in support of the revised proposal. He stated that the revised ballot language was an improvement, and he acknowledged that the 75-word limit presented a challenge. Deputy City Attorney Maland indicated that two non-substantive corrections to the ordinance were provided to the Council on the dais, adding 3.42.230 - Annual Review, to page I (index); and replacing the words, "Article XIII" with "Title 3" under Section 3 on page 18 of the ordinance. Councilmember Castaneda suggested inclusion oflanguage in the proposed ordinance that would require revenue neutrality. He also stated that the information distributed should clearly state the impacts of the ordinance. Deputy Mayor Rindone suggested that the second sentence under section 3.42.230(a) be changed to read, "The first review shall occur no later than June 30, 20 10;' and "each annual review shall occur no later than June 30 of each subsequent year." City Manager Garcia distributed a handout to the Council that provided statistics from other cities that had adopted Utility Users' Tax ordinances. Further discussion ensued between Councilmembers regarding the potential impacts on safety services to the City, should the proposed measure fail. Mayor Cox suggested adding the language, "with the intent that implementation be revenue neutral" following the word, "chapter" in first sentence of section 3.42.230 of the proposed ordinance. Discussion ensued regarding the intent ofrevenue neutrality. Mayor Cox suggested adding language that would indicate that the intent, proportionate with population and service growth, be revenue neutral. City Manager Garcia suggested adoption of a Council Policy that would govern the City Council's actions as it conducts the annual review to ensure the Council's intent of maintaining revenue neutrality. ACTION: Mayor Cox moved to adopt the resolutions, headings read, texts waived. Councilmember Ramirez seconded the motion. Councilmember Castaneda requested an amendment to consider Resolutions A and B separately. Mayor Cox agreed to amend the motion. ACTION: Mayor Cox moved to adopt Resolution A, Councilmember Ramirez seconded the motion. Councilmember McCann voting no. heading read, text waived. The motion failed 4-1, with Page 2 - Council M inules July 23, 2008 lIJ.- 2 DRAFT ACTION ITEM (Continued) Mayor Cox noted that as a result of the failure of Item lA, it would be unnecessary to consider Item lB. ACTION: Mayor Cox moved for reconsideration of the item by the Council. Councilmember Ramirez seconded the motion, and it carried 4-1, with Councilmember McCann voting no. Mayor Cox deferred to Interim City Attorney Miesfeld to provide an explanation on what opportunity there would be for the Council to move forward with a request for a 2/3rds vote of the people, which she believed did not require a unanimous vote of the Council. Deputy City Attorney Maland responded that the proposed ballot measure could be placed on the ballot as a Special Tax, as opposed to a General Tax, which would require approval by the voters of 2/3rds of the electorate, and would not require the unanimous vote by the Council, since the emergency finding requirements of Proposition 218 did not apply to a Special Tax. Furthermore, revenues received from a Special Tax must be earmarked for a specific purpose, and she stated that staff had recommended the funds be earmarked for public safety purposes. Interim City Attorney Miesfeld confirmed proper noticing for consideration of a Special Tax. ACTION: Mayor Cox moved to adopt Resolution lA, as amended to include the language for a Special Tax. Councilmember Castaneda seconded the motion. Discussion ensued between staff and the Council regarding the proposal to consider placing the ordinance on the ballot as a Special Tax. In response to concerns regarding revenue neutrality, Mayor Cox requested that the language she suggested earlier regarding revenue neutrality, proportionate to population and service growth, be applied to the ordinance for the Special Tax. ACTION: Mayor Cox moved to approve Resolution lA, as amended. Councilmember Ramirez seconded the motion. Councilmember McCann expressed concern about the public noticing of the proposed amendments and insufficient time for Council review. Deputy Mayor Rindone expressed concern about the noticing requirements for a Special Tax, and he requested that the item be trailed to a Special Meeting of the City Council. ACTION: Deputy Mayor Rindone offered a substitute motion to continue Item I to a Special Council Meeting on July 29, 2008 at 6:00 p.m. to consider the placement of a Special Tax on the ballot. Councilmember Castaneda seconded the motion and it carried 5-0. Mayor Cox requested for the next Meeting, that Item IB be divided into two components, one to indicate the cost of $35,000 to add a measure to the ballot; and to add Item I C, to indicate the cost of $70,000 to provide an informational item to the public. Page 3 - Council Minutes July 23, 2008 /A - .-~; DRAFT ACTION ITEM (Continued) A. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ORDERING THE SUBMISSION TO THE QUALIFIED ELECTORS OF THE CITY OF A MEASURE RELA TING TO THE CITY'S TELECOMMUNICATIONS USERS' TAX AT THE SPECIAL MUNICIPAL ELECTION TO BE HELD ON TUESDAY, NOVEMBER 4, 2008; DECLARING THE EXISTENCE OF AN EMERGENCY NECESSITATING SUCH ACTION; AND DIRECTING THE CITY ATTORNEY TO PREPARE AN IMPARTIAL ANALYSIS OF THE MEASURE (UNANIMOUS VOTE REQUIRED) B. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROPRIATING $105,000 FROM THE AVAILABLE BALANCE OF THE GENERAL FUND TO THE CITY CLERK'S AND NON-DEPARTMENTAL BUDGET TO COVER ANTICIPATED COSTS AND EXPENSES RELATED TO ELECTION COSTS, AND PRINTING AND MAILING COSTS (4/5THS VOTE REQUIRED) ADJOURNMENT At 9:45 p.m., Mayor Cox adjourned the meeting to a Special Meeting of July 29, 2008 at 6:00 p.m.. in the Council Chambers, and thence to the Regular Meeting of August 5, 2008 at 4:00 p.m. in the Council Chambers. ~ r' / Lorraine Bennett, CMC, Deputy City Clerk Page 4 - Council Minutes ! /1 l' / 11 . July 23, 2008 DRAFT MINUTES OF A SPECIAL MEETING OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA July 29, 2008 6:00 P.M. A Special meeting of the City Council of the City ofChula Vista was called to order at 6:04 p.m. in the Council Chambers, located in City HalL 276 Fourth Avenue, Chula Vista, California. ROLL CALL: PRESENT: Councilmembers Castaneda, McCann, Ramirez, Rindone, and Mayor Cox ABSENT: None ALSO PRESENT: City Manager Garcia, Interim City Attorney Miesfeld, Interim City Clerk Norris, and Deputy City Clerk Bennett PUBLIC COMMENTS There were none. ACTION ITEM 1. CONSIDERATION OF PLACING A MEASURE RELATING TO THE CITY'S TELECOMMUNICATIONS UTILITY USERS' TAX ON THE BALLOT FOR THE SPECIAL MUNICIPAL ELECTION TO BE HELD ON TUESDAY, NOVEMBER 4, 2008 Based on the existing and imminent threats to the telecommunications portion of the City's Utility Users' Tax (UUT) ordinance, staff recommended Council approve submittal of a new ordinance to the voters at the November 2008 election as a general tax. If the Council does not approve it as a general tax measure, staff recommends that it be placed on the ballot as a special tax, designated for the following purposes: public safety, parks and libraries. The resolutions presented for the Council's consideration would (i) approve an ordinance to be submitted to the voters for this purpose; and (ii) appropriate the funds necessary to cover the related costs. (Finance Director) Director of Conservation and Environmental Services Meacham spoke about staffs attempts to address the Utility Users' Tax issue over the past decade, and the City's resulting non- conformance with current standards. He then presented the proposed Utility Users' Tax Measure. Discussion ensued between the Council and staff regarding fiscal consequences for the City, should the proposed items faiL Steve Miller, representing the Chula Vista Firefighters, spoke in support of allowing the voters to decide on the measure. Page 1 - Council Minutes - Special UUT July 29, 2008 / B, / DRAFT ACTION ITEM (Continued) David Krogh, Chula Vista resident, spoke in support of placing the measure on the ballot as a general tax, requiring a majority vote of the people rather than a two-thirds vote. Larry Breitfelder, Chula Vista resident, representing the Chula Vista Taxpayers Association, stated that continued disintegration of the existing ordinance would cost the public in terms of diminished service. He stated that the proposed ballot language remained deceptive, but understood the importance of the measure. Mayor Cox urged the Council to take unanimous action to place the general tax measure on the ballot in order to secure existing funding. Councilmember Castaneda suggested that staff work with corporations and disseminate information to the community about those corporations that were currently paying the tax and those that were not. He suggested that this item be referred back to staff for a proposal on how to facilitate community trust. ACTION: Councilmember Ramirez moved to adopt the following Resolution AI, heading read, text waived: Discussion continued among the Councilmembers, with each providing their perspective on this measure. Councilmember Castaneda suggested continuing the item, and spoke of the need for the Council to ensure clarity with the proposed ballot language and ordinance language. AI. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ORDERING THE SUBMISSION TO THE QUALIFIED ELECTORS OF THE CITY OF A MEASURE RELATING TO THE CITY'S TELECOMMUNICATIONS USERS' TAX AT THE SPECIAL MUNICIPAL ELECTION TO BE HELD ON TUESDAY, NOVEMBER 4, 2008; DECLARING THE EXISTENCE OF AN EMERGENCY NECESSITATING SUCH ACTION; AND DIRECTING THE CITY ATTORNEY TO PREPARE AN IMPARTIAL ANALYSIS OF THE MEASURE (UNANIMOUS VOTE REQUIRED) Deputy Mayor Rindone seconded the motion. The motion failed 3-2, with Councilmembers Castaneda and McCann opposed. ACTION: Mayor Cox moved to adopt the following Resolution A2, heading read, text waived: A.2. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ORDERING THE SUBMISSION TO THE QUALIFIED ELECTORS OF THE CITY OF A MEASURE RELATING TO THE CITY'S SAFETY AND COMMUNITY ENHANCEMENT TELECOMMUNICATIONS USERS' TAX AT THE SPECIAL MUNICIPAL ELECTION TO BE HELD ON TUESDAY, NOVEMBER 4, 2008; AND DIRECTING THE CITY ATTORNEY TO PREPARE AN IMPARTIAL ANALYSIS OF THE MEASURE (3/5THS VOTES REQUIRED) Page 2 - Council Minutes ~ Special- UUT July 29, 2008 18-2 DRAFT ACTION ITEM (Continued) Deputy Mayor Rindone seconded the motion. The motion failed 2-3, with Councilmembers Castaneda, McCann and Ramirez opposed. The following resolutions were not considered: B. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROPRIATING $35,000 FROM THE GENERAL FUND TO COVER THE ANTICIPATED COSTS AND EXPENSES RELATED TO PLACING THE TELECOMMUNICATIONS USERS' TAX ORDINANCE ON THE NOVEMBER 2008 BALLOT (4/5THS VOTES REQUIRED) C. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROPRIATING $70,000 FROM THE GENERAL FUND TO COVER ANTICIPATED COSTS AND EXPENSES RELATED TO PRINTING AND MAILING INFORMATION RELATED TO THE TELECOMMUNICATIONS USERS' TAX BALLOT MEASURE (4/5THS VOTE REQUIRED) ADJOURNMENT At 7:37 p.m., Mayor Cox adjourned the meeting to the next Regular Meeting of August 5, 2008 at 4:00 p.m. in the Council Chambers. / ?>. .--/ Lorraine Bennett, CMC, Deputy City Clerk Page 3 - Council Minutes - Special - UUT I /A_/ t - ",,/ --" July 29, 2008 RECEIVED 'C8 SEP 26 1\9 :33 CITY OF CHUlA Y~SE CITY CLERK'S OF~I().: Ms. Lorraine Bennett Chula Vista City Clerk 276 Fourth Avenue Chula Vista, CA 91910 September. 18, 2008 Dear Ms. Bennett, Effective this date, please accept my resignation from Chula Vista's Growth Management Oversight Commission. I found it increasingly difficult last year to meet my responsibilities with both the Eastlake Educational Foundation and the GMOC. In addition, my wife and I will be traveling extensively in the year 2009. Thank you for giving me the opportunity to serve our community. --- , , - =-c', .,jc""''f..- Q\\y'l"'C ~:"'c,a, ~'\ \\,~z;; L~ ?~\<::, :Lff -----Original Message---- From: Mikki Zbikowski [maiito:mikki@sdhomeiife.com] Sent: Wednesday, October 01, 2008 4:40 PM To: Margarita Cellano Subject: commission Resignation Hi Margarita, Thank you for the reminder. It is with much regret that I need to resign my appointment to the Commission on Aging, effective immediately. Due to an unexpected move out of Chula Vista, I will no longer be able to serve. I deeply appreciated the opportunity, and regret having to make this decision. I apologize for the short term service, but our lease was up, and the house we moved to is not located within the Chula Vista city limits. Respectfully submitted, Mikki Zbikowski "Mikki" Zbikowski, ePRO, SRES t26 CITY COUNCIL AGENDA STATEMENT ::$'Yf:.. CITY OF ""'" ,,~ (HULA VISTA 10/07/08, 1tem~ SUBMITTED BY: RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AMENDING THE FISCAL YEAR 2008/2009 OTAY RANCH VILLAGE 2 NEIGHBORHOOD PARK BUDGET AND APPROPRIATING $1,193,670 FROM THE AVAILABLE PARK ACQUISITION AND DEVELOPMENT (PAD) FUND BALANCE TO REIMBURSE OTAY PROJECT,L.P. t3k DIRECTOR OF ENGINEE~ INTERIM CITY MANAGE; 0J- 4/STHS VOTE: YES C3J NO 0 ITEM TITLE: REVIEWED BY: SUMMARY Otay Project L.P had deposited PAD fees in the amount of $1,196,670 to satisfy Tentative Map Condition No. 95 for Village 2 North Unit 1. At the request of Otay Project, L.P., the final map was not presented for City Council approval. Otay Project, L.P. is now requesting a refund of said fees. ENVIRONMENT AL REVIEW The Envirorunental Review Coordinator has reviewed the proposed activity for compliance with the California Environmental Quality Act (CEQA) and has determined that the activity is not a "Project" as defined under Section 15378 (b)(4) 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. RECOMMENDATION Council adopt the resolution. BOARDS/COMMISSION RECOMMENDATION Not applicable. DISCUSSION In Fiscal Year 2007/2008 (September 10, 2007), Otay Project, L.P. deposited $1,193,670 in the Otay Ranch Village 2 Neighborhoods Park Fund account to satisfy Tentative Map Condition No. 95 which states that "Prior to approval of each Final "B" Map, or prior to issuance of building permits for residential units not requiring the filing of a Final "B" Map, the Applicant shall pay 3-1 10/07/08 Item~ Page 2 of 2 all applicable parkland acquisition and development fees (PAD Fees) to the City in accordance with Chula Vista Municipal Code Chapter 17.10." The Final "8" Map for Otay Ranch Village 2 North Unit I was scheduled for City Council consideration and approval on September 18,2007. Per Otay Project, L.P.'s request, the item was removed from Council Agenda that same day due to financial reasons. It is anticipated that Otay Project, L.P. will bring this map for Council approval in the spring of 2009, at the earliest. However, until then, it has been requested that the City refund their PAD Fees. Otay Project, L.P. understands and is aware that they must pay the current applicable PAD fees (including applicable fee increases) at the time the map is scheduled for Council consideration. This resolution will amend the Fiscal Year 2008/2009 Otay Ranch Village 2 Neighborhood Parks budget and appropriate $1,193,670 from the available PAD fund balance to process the refund to Otay Project, L.P. for P AD Fees associated with Village 2 North Unit I. DECISION MAKER CONFLICT Staff has reviewed the property holdings of the City Council and has found no property holdings within 500 feet of the boundaries of the property, which is the subject of this action. FISCAL IMPACT The refund of PAD fees to Otay Project, L.P. will have no impact to the General Fund as this is a reimbursement and sufficient monies are available in the PAD fund balance. ATTACHMENTS I. Letter requesting refund from Otay Ranch Company Prepared by: Boushra Salem, Senior Civil Engineer, Engineering Department Tessa Quicho, Administrative Analyst II. Engineering Department J: IEngineerlA GENDA ICAS2008\ I 0-07-08\P AD Fees Appropriation FY2009_BFS.doc 3-2 SEP, 15,2008 9:36AM NO,521 p, 2 A TT ACHMEN1 / THE OTAY RANCH COMPANY September 12, 2008 o{2..81 \ f Ms. Tessa Quicho City of Chula Vista 276 Fourth Ave. Chula Vista, CA 91910 RE: Request for return of PAD fee Deposit Dear Tessa, We would like to formally request reimbursement of the PAD fee deposit (see attached) previously paid in the amount of $1,193,670 for our Village 2 Unit 1 area. This payment is required prior to approval of the B-map for the Unit 1 area which we do not anticipate processing until next year. Thank you for your assistance with this matter. If you have any questions, please let me know. Sincerely, THE OTAY RANCH COMPANY .(}W; ;(V1A- Don Ross Project Manager cc: Boushra Salem Kent Aden Mora de Murguia 610 W, ASH STREeT, SUITIS, 150Q, SAN DJEGO. CA 92101 . "1"1; (619) ii!34.405Q . F)(: ~6'91 234.4088 . WWW.OTAYRANCH.COM 3-3 / SEP. 1,5 2008 4-18-07 9:36AMVJ.sCa. 5' 1 P 3 NO. L 00:2 . 25998 PAD. Fees for V1 Fees 1 ~~ >-,' :.S - 'Oi2 - b!7 25998 Q . ~~''''."''''''''''-'J. -"'.'''''''.'.'fii~~ 1l~315.7.1).OO' OTAY,PRPJEc.:r'L,~ . 61o-WestA$W~TRej::r. SUll'S>:1600 SAoj/'DIEGc?';:CA; ~2~vl' . . IS'~n~4,40!iO -~"""'''''.'''''''''''''''-"''''''''''''''''~lWiJ:m!~'''''='''~2:59."98 . FJfI~:r ~r<.~OoF. CALIFORNIA ' . . ,. FrRS't BANI<! & T~UST NiWtlaJ1J'''K.I'I, CA ~2~IO M~y 2, 20'07 "Q'.&1311222 TO THE ORDeR OF ...........................an. million One ","dred nin.tt-;~ ******"*"*"*********************SiX hundred se enty dollar _.' d City of Chula Vista . " 276 Fourth AVe. Chula Vista, CA 91910-2631 $**1, l.n., 679.00 thousand no cents Pay: ,/", .;'" <"~"I ': .- ,.."t.. lU!llW!\1O""~:~;.,!!",...~~_.__.~."",...",..."....,,,,,.,.,_ ''''......-......'''.'''''.lll!:lJ;1ll''.'~."'.._.'"."',...._" ""--"'lllI~"I'!~i~; 1/'0 25"l"l8I/' la2223'HHI: <jI,Ob"lOBHdl/l ~ 3-4 RESOLUTION NO. 2008- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AMENDING THE FISCAL YEAR 2008/2009 OT A Y RANCH VILLAGE 2 NEIGHBORHOOD PARK BUDGET AND APPROPRIATING $1,193,670 FROM THE A V AILABLE PARK ACQUISITION AND DEVELOPMENT (PAD) FUND BALANCE TO REIMBURSE OTAY PROJECT, L.P. WHEREAS, in Fiscal Year 2007/2008, Otay Project, L.P paid $1,193,670 to the Otay Ranch Village 2 Neighborhoods Park Fund to satisfy Tentative Map Condition No. 95 for Village 2 North Unit 1 (deposited on September 10,2007); and WHEREAS, Tentative Map Condition No. 95 states that prior to approval of each Final "B" Map, or prior to issuance of building permits for residential units not requiring the filing of a Final "B" Map, the Applicant shall pay all applicable parkland acquisition and development fees in accordance with Chula Vista Municipal Code Chapter 17.10; and WHEREAS, the Final "B" Map for Otay Ranch Village 2 North Unit 1 was scheduled for City Council approval on September 18,2007; and WHEREAS, in accordance with Otay Project, L.P.'s request, the item was removed from Council Agenda that same day due to financial reasons; and WHEREAS, on September 12, 2008 Otay Project, L.P requested a refund of the Otay Ranch Village 2 Neighborhoods Park Fee paid in the amount of$I,193,670. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista does hereby amend the Fiscal Year 2008/2009 Otay Ranch Village 2 Neighborhood Park Budget and appropriate $1,193,670 trom the available PAD fund balance to reimburse Otay Project, L.P. Presented by: Approved as to form by: Richard A. Hopkins Director of Engineering J:\Allorney\MichaeISh\Village 2\BMapslVillage 2 North Unit 1\PADfeeReimbIO.7.08CCR~OC CITY COUNCIL AGENDA STATEMENT 10/7/08, Item~ SUBMITTED BY: REVIEWED BY: RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AUTHORIZING THE MAYOR TO EXECUTE AN EASEMENT DEED GRANTING AN EASEMENT OVER A PORTION OF CITY-OWNED LAND TO THE UNITED STATES GEOLOGICAL SURVEY (USGS) FOR THE INSTALLATION, OPERATION, AND MAINTENANCE OF A MULTI-DEPTH GROUND WATER MONITORING WELL DIRECTOR OF ENGINEEMJ INTERIM CITY MANAGER C?--7 4/5THS VOTE: YES D NO ~ ITEM TITLE: SUMMARY No comprehensive study of groundwater resources currently exists for the coastal San Diego area, including Chula Vista. The present United States Geological Survey project proposes to complete such a study using the installation of multi-depth monitoring wells at select specific locations in four coastal river basins; San Dieguito, San Diego River, Sweetwater River, and the Otay River. The USGS has requested that the City grant an easement to allow the installation of one of these monitoring wells adjacent to the Otay River. ENVIRONMENTAL REVIEW The Environmental Review Coordinator has reviewed the proposed project for compliance with the California Environmental Quality Act (CEQA) and has determined that the project qualifies for a Class 6 categorical exemption pursuant to Section 15301 [Information Collection] of the State CEQA Guidelines. In addition, the Environmental Review Coordinator has reviewed the proposed project for compliance with the National Environmental Policy Act (NEPA) and has determined that the project qualifies for a Categorical Exclusion pursuant to Paragraph 9.5, Sections A, F & K [Exploratory/observation groundwater well drilling] of the National Environmental Quality Policy Act of 1969 as defined by the United States Department of the Interior. Thus, no further environmental review is necessary. RECOMMENDATION Council adopt the resolution. BOARDS/COMMISSION RECOMMENDATION Not applicable. 4-1 10/7/08, ItemL Page 2 of2 DISCUSSION No comprehensive study of groundwater resources currently exists for the coastal San Diego area, including Chula Vista. The present United States Geological Survey (USGS) project proposes to complete such a study using the installation of multi-depth monitoring wells at select specific locations in four coastal river basins; San Dieguito, San Diego River, Sweetwater River, and the Otay River. The USGS has requested that the City grant an easement to allow the installation of one of these monitoring wells adjacent to the Otay River. The site selected is located on a portion of City owned land that is going to be the Mace Street staging area for the Otay Valley Regional Park (OYRP). The USGS has constructed, installed and is presently monitoring data from eight wells in southwestern San Diego County. The piezometers; small diameter PVC conduits installed within the primary well borehole at various depths, are routinely, and in some cases continuously, monitored for ground water level and water quality. The collected data helps answer questions vital to water resource planning, such as availability and distribution of high quality groundwater, advance warning of intrusion of seawater into water used for public supply, and of any potential land subsidence due to withdrawing resources from the subsurface. The USGS wells are designed as permanent installations that will provide data to assist with water resource planning and management for decades. Real-time monitoring data for all USGS wells is made available via satellite link and web-based user interface. Staff has reviewed the request and determined that the proposed monitoring well is consistent with the uses permissible for this land. Additionally, the proposed easement location will not interfere with the construction operation or maintenance of the future Mace Street staging area. While the City is under no obligation to grant this easement to the USGS without compensation, staff has determined that, due to the location and restricted alternative uses for this area, the value of the easement is nominal. Further, the benefits of ongoing monitoring of underground water supply and quality outweigh any impacts caused by the facilities. DECISION MAKER CONFLICT Staff has reviewed the property holdings of the City Council and has found no property holdings within 500 feet of the boundaries of the property, which is the subject of this action. FISCAL IMPACT There is no net negative impact to the General Fund. The USGS will pay $2,500 for staff time expended on this project. ATTACHMENTS Attachment I. Easement Deed Prepared by: Rick Ryals, Real Property Manager, Engineering Department 4-2 ATTACHMENT f / Recording requested by and please return to: City Clerk City ofChula Vista P.O. Box 1087 Chula Vista, CA 91912 This instrument benefits City, only. No fee required c Assessor's Parcel Number 629-100-07 Chula Vista CIP File No: RP-003 EASEMENT FOR INSTALLATION, OPERATION AND MAINTENANCE OF A MULTI-DEPTH GROUND WATER MONITORING WELL FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, the City of Chula Vista, a municipal corporation (Grantor) grants to the United States Geological Survey (USGS), an Easement for the installation, operation and maintenance of a multi-depth ground water monitoring well on, over, under, across and through that certain real property located in the City of Chula Vista, County of San Diego, State of California, more particularly described as follows: See Legal Description designated as Exhibit" A", attached to and incorporated into this Easement Deed. As more particularly shown on a Map designated as Exhibit "B", attached to and incorporated into this Easement Deed. This easement is for the placement, operation, and maintenance of a ground water monitoring well and appurtenances only. No other use shall be permitted. In the event that the well is no longer required by USGS, USGS shall remove all improvements and appurtenances and restore the Easement area, as described and depicted in the attached Exhibits "A" and "Boo, to its original condition. After the Easement area is restored, USGS shall quitclaim the easement rights granted pursuant to this Easement Deed to Grantor. Signed this day of ,2008 GRANTOR: THE CITY OF CHULA VISTA, a municipal corporation BY' Cheryl Cox, Mayor 4-3 15511-C EXHIBIT "A" MONITORING WELL EASEMENT Being a portion of Block 7 of "Eastern Addition to Otay", in the City of Chula Vista, County of San Diego, State of California, according to Map thereof No. 523 filed in the Office of the County Recorder of San Diego County, April 6, 1888 said portion being more particularly described as follows: Beginning at a point in the centerline of "Mace Street" which bears North 00028'47" East a distance of 1090.00 feet to the centerline of "Main Street", said point being the Northeast corner of said Block 7; thence North 89031'13" West 36.00 feet to the West Right-of-Way of "Mace Street"; thence along said Right-of-Way South 00028'47" West 44.60 feet to the TRUE POINT OF BEGINNING; thence leaving said Right-of-Way North 89031'13" West 8.50 feet; thence North 00028'47" East 7.00 feet; thence South 89031'13" East 8.50 to said Right-of-Way; thence South 00028'47" West 7.00 feet to the TRUE POINT OF BEGINNING. Containing 59.50 square feet, more or less. fi/6~~ ft/ Patrick A. McMichael, L.S. 6187 ~?2c;.'2_( Date Jb(15511c.OOl 4-4 EXHIBIT liB II LEGEND I777l INDICA TES MONITORING WELL EASEMENT lLLLI (CONTAINS 59.50 SQUARE FEETJ MAIN STREET I hu ~o , q &3~ b2 <: lli5 [UQ) ~ ~ ~ N89' 31'13'W 36.00' (TIE) POB ..h...hUh..U.U......U.......UUhU.....U.UhhhU...UU.UUh..UUU..th.UUU.....UU..h.. lli5[L@~~ (j NORTHEAST CORNER BLOCK 7. MAP 523 ~ffi;,~u~~!NJ I- W W a: ~ I- en I ~ W ~ U ~ <C t; ~ lr) 10 5 , N ffi;,[Q)[Q)~u~@~ u@ @uffi;,W ~ffi;,[Fl @~~ o 10 , GRAPHIC SCALE 1"= 10' TPOB ENGtNEERING COMPANY 5620 FRIARS ROAD )-15511c SAN DIEGO, CA 92110 619.291.0707 (FAX)61 9.29 1.4 1 65 .~~' /~r"'~/_.0~0.' - " PA TRICK A. MCMICHAEL LS 6187 7-/,(/ -C"\ RICK DATE t.4. \.15511 0\.1 te_6-'l'laOe\15511 o_llxb_&aTrtOt. dOn \. ....rv_~1 \R lokStaldcrd8\Bent l.y-ZOO6'WQl'"ke~\pr'oJooi'e\CorpStda_ZOO5_SO\1 p I ot\CorpS"tde_2005_S0. po,n Z9-SEP-2008 15101 RESOLUTION 2008- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AUTHORIZING THE MAYOR TO EXECUTE AN EASEMENT DEED GRANTING AN EASEMENT OVER A PORTION OF CITY-OWNED LAND TO THE UNITED STATES GEOLOGICAL SURVEY (USGS) FOR THE INSTALLATION, OPERATION, AND MAINTENANCE OF A MULTI-DEPTH GROUND WATER MONITORING WELL WHEREAS, the City of Chula Vista is the fee owner of that certain real property situated in the City Of Chula Vista, County of San Diego, State of California, identified as San Diego County Assessors Parcel No. 629-100-07; and WHEREAS, no comprehensive study of groundwater resources currently exists for the coastal San Diego area, including Chula Vista; and WHEREAS, a current United States Geological Survey project proposes to complete such a study using the installation of multi-depth monitoring wells at select specific locations in four coastal river basins; San Dieguito, San Diego River, Sweetwater River, and the Otay River; and WHEREAS, the USGS has requested that the City grant an easement to allow the installation of one of these monitoring wells adjacent to the Otay River; and WHEREAS, the proposed multi-depth monitoring well is consistent with the permissible uses for this property. NOW THEREFORE, BE IT RESOLVED by the City Council of the City of Chula Vista that it authorizes the Mayor to execute an easement deed granting an easement over a portion of City-owned land to the United States Geological Survey (USGS) for the installation, operation, and maintenance of a multi-depth ground water monitoring well. Presented by: Approved as to form by: R. A. Hopkins Director of Engineering --!~~l tLL~ ~ Bart Miesfeld {I Interim City Attorney H:\ENGINEER\RESOS\Resos2008\1O-07-08\USGS easement revised by ec revised again by ec.doc 4-6 CITY COUNCIL AGENDA STATEMENT ~f:.. CITY OF '=l:~~~ CHULA VISTA 10/07/08, Iteml SUBMITTED BY: RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE FIRST AMENDMENT TO THE DESIGN/BUILD AGREEMENT WITH ERICKSON-HALL CONSTRUCTION CO. FOR THE DESIGN AND CONSTRUCTION OF MT. SAN MIGUEL COMMUNITY PARK TO REVISE THE GUARANTEED MAXIMUM PRICE RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AMENDING THE FISCAL YEAR 2008/2009 CIP PROGRAM AND APPROPRIATING $7,769,399 FROM THE AVAILABLE PARK ACQUISITION AND DEVELOPMENT (PAD) FUND BALANCE TO EXISTING CAPITAL IMPROVEMENT PROJECT, MOUNT SAN MIGUEL COMMUNITY PARK (CIP PR260) TO COMPLETE THE PROJECT DIRECTOR OF ENGINE~ INTERIM CITY MANAGER "7-;- 4/5THS VOTE: YES [gJ NO 0 ITEM TITLE: REVIEWED BY: SUMMARY The City Council previously approved CIP Project No. PR260 and the Master Plan for Mount San Miguel Community Park, which conceptually designed and provided for the construction of a completed and fully functional 19-acre park On September 19, 2006, Council approved a Design Build Agreement with Erickson-Hall Construction Co. for this park The Design Build Agreement contained a not-to-exceed price of$5,841,067 with the GMP to be set upon receipt of 90% construction drawings. The project is nearing the end of the design phase and ready to start the construction phase. Tonight's first resolution will approve the first amendment that will set the Guaranteed Maximum Price (GMP) at $8,688,462. In addition, the second resolution will amend the Fiscal Year 2008/09 CIP Program and approve the appropriation of$7,769,399 to the existing CIP PR260 for said purpose. ENVIRONMENTAL REVIEW The Environmental Review Coordinator has reviewed the proposed project for compliance with the California Environmental Quality Act (CEQA) and has determined that the proposed project was adequately covered in previously adopted San Miguel Ranch Sectional Planning Area (SPA) Plan and Subsequent Tentative Map Final Environmental Impact Report 97-02 (EIR 97-02) and associated Addendum. Thus, no further environmental review or documentation is necessary. 5-1 10/07/08, Item2 Page 2 of 4 RECOMMENDATION Council approve the resolutions. BOARDS/COMMISSION RECOMMENDATION Not applicable. DISCUSSION On September 19, 2006, City Council approved an agreement with Erickson-Hall Construction Co. by Resolution 2006-290 for the services required to design and construct a completed and fully functional 19-acre, Mount San Miguel Community Park. As part of that agreement, a Guaranteed Maximum Price (GMP) is to be established at 90% construction documents, which would include, but not be limited to, the cost for all labor, equipment, and material to design and build a fully functional park in accordance with all applicable building codes. A not-to-exceed amount of$5,841,067 for the park was established based upon rough schematic drawings in the Design Build agreement. As the design progressed and some of the complexities of this project became known, .the actual GMP as determined at the 90% construction drawing stage exceeded the noHo-exceed amount in the original agreement. PROJECT SCOPE AND CONTRACTUAL REOUIREMENTS The Design-Build Agreement with Erickson-Hall Construction Co. provides the City with a fully functional Mount San Miguel Community Park including the facilities and site work required to provide park service to residents ofthat community as well as other residents of the City. The First Amendment (Exhibit A) to the Design Build Agreement between the City of Chula Vista and Erickson-Hall Construction Co. will include setting the GMP at $8,688,462 which includes the revised Design Fees and General Conditions costs consistent with the project cost (Attachment I) and revise the statement for Substantial and Final Completion dates. The GMP shall include all design and construction services to complete a fully functional park. The GMP is higher than the not-to-exceed amount in the original agreement due to the process of refining the various project elements. Staff has made every effort in value engineering the project and concurs with the Design Builder's GMP amount. The increase in the GMP is a result of two-year project delay, unanticipated site conditions, increases in the price of fuel and materials, new environmental guidelines, as well as a master plan which at the time (2004) was overly optimistic when it came to actual construction/management costs wher~by the scope of work exceeded the budget. Based on the City's financial condition and proposed budget reductions, the City Manager asked that construction of the park be delayed until the City was in a better financial condition to handle the operating costs of the park. In that two-year delay, the price of fuel and materials increased as a result of the current downturn in the economy and new environmental guidelines regarding (Stormwater Prevention Pollution Program) SWPPP regulations and permanent Best Management Practices (BMPs) which had to be incorporated to meet the new guidelines. In addition, unanticipated soil and rock conditions provided for geotechnical challenges and the relocation of existing utilities contributed to the cost of design and construction. 5-2 10/07/08, ltem2 Page 3 of 4 As Council may recall, the original GMP was set in 2006. Over the past two years, the Design Build Team (DBT) created a value-engineered scope that was near or at the original budget of $5.8M, which resulted in a significantly reduced scope. This severely impacted the programming of the Park and was unacceptable. At that point in time, staff directed the DBT to include all the scope of work in the master plan and value-engineer items that did not impact the original scope, which has brought us to where we are today with a GMP of$8.7M. By doing this, the City will realize a much nicer, programmable park while maintaining the original scope of work. It should be noted that although the GMP has increased, in comparison to a recently completed Design Build Community Park, Salt Creek, the estimated cost per acre for Mt. San Miguel Park is an increase of approximately 10%. Calculated as follows: Actual Park Costs (Salt Creek) $381,000/acre vs. Estimated Cosntruction Park Costs (Mt. San Miguel Community Park) $420,000/acre. This increase is reasonable based on the items described above. The Substantial and Final completion dates will be amended to include the revised Substantial Completion date of "no later than twelve (12) months after the Notice to Proceed" and the revised Final Completion date of no later than thirty (30) calendar days from Substantial Completion. The total cost of the project and GMP exceed the amount set forth in the Design Build Agreement as the amount not- to-exceed cost of the project. At the time of the Design Build Agreement, staff recommended an amount not-to-exceed that was less than the total budgeted cost of the project. This is commonly done, as the costs of the project that are estimated at the master plan level rarely remain consistent through the design process. By establishing a less than budgeted amount not- to-exceed, staff is better able to focus the design builder on designing a project that remains within our budgetary constraints. Staff felt it prudent at that time to establish a conservative cost of the project and be able to respond to unexpected changes in material costs. The final design of the project remains consistent with the adopted master plan. CHANGE ORDERS Under the designlbuild process, change orders are handled differently than under the designlbidlbuild process. Change orders are only returned for Council approval if they exceed the approved GMP, or are for additional work requested by City, which results in a significant change to the original scope. Otherwise, change orders are reviewed/approved by staff and the design builder. This practice is commonplace when using the designlbuild construction technique. DECISION MAKER CONFLICT Staff has reviewed the property holdings of the City Council and has found no property holdings within 500 feet of the boundaries of the property which is the subject of this action. 5-3 10/07/08, Item--5- Page 4 of 4 FISCAL IMP ACT PROJECT COSTS GMP $8,688,462 Master Plan (complete) $96,245 Land Purchase (complete, approved by Reso 2008-164) $350,000 City Staff Costs, Consultant and Oversight (including geotech/special inspections) $400,000 Utilities $350,000 City Contingency $200,000 FF&E $10,000 TOTAL PROJECT COSTS $10,094,707 PROJECT FUNDS Existing Appropriation $1,190,386 San Miguel Ranch CFD 2001-1 $1,134,922 Additional Appropriation (PAD Funds) $7,769,399 TOT AL PROJECT FUNDS $10,094,707 Erickson-Hall Construction Co. has requested the GMP be set at $8,688,462. The GMP includes, but is not limited to, design services, general conditions, insurance, bonds, construction management, the cost for all labor, equipment, and material to design and build a fully functional park in accordance with all applicable building codes. ;The total project cost is $10,094,707. Approval of tonight's first resolution will approve the first amendment to the agreement with Erickson-Hall Construction Co. to incorporate the Guaranteed Maximum Price (GMP) for the design and construction of Mount San Miguel Community Park (CIF PR260) located in the San Miguel Ranch Neighborhood in Eastern Chula Vista and authorize the Mayor to execute said amendment. In addition, tonight's second resolution will authorize amending the Fiscal Year 2008/09 Capital Improvement Program and appropriate $7,769,399 from the available PAD fund balance to Mount San Miguel Community Park (CIF PR260). Project funding in the amount of $1,134,922 will be paid directly from the Community Facilities District (CFD) 2001-1 identified as Improvement 15 which was established for this purpose. An allowance of $100,000 is within the GMP to be used towards limited maintenance for one year once a maintenance program has been agreed upon by staff and the Design Builder. Thereafter, Public Works will acquire an annual on-going cost for the park of approximately $11,904 per acre in FY 2010-11. ATTACHMENTS Attachment 1 - Revised Exhibit 2, Design Build Fee Structure Exhibit A - First Amendment to the Design Build Agreement Prepared by: Merce LeClair, Sr. Management Analyst, Engineering Dept. and Gordon Day, Sr. Building Project Manager, Engineering Dept. J:IGeneral ServiceslGS AdministrationlCouncil AgendaIMount San Miguel ParklSan Miguel GMP Al13 Final 093008 doc 5-4 Mt. San Miguel Community Park GMP with VE and Maintenance Allowance Mt. San Miguel Community Park - GMP incl VE and Maint 1. GMP Construction Budget - including 5% contingency 2. General Conditions -12 Months (11 months prior to GMP with VEl 3. Subtotal - Hard Construction Costs 4. Design/Builders Fee - sliding scale Fee on first $1,000,000 of construction cost Fee on next $500,000 over $1 ,000,000 - 6% Fee on next $500,000 over $1,500,000 - 51/2% Fee over $2,000,000 - 5% 5. Total - Preliminary Cost of Construction Estimate Design and Pre-Construction Fees: 6. Preconstruction Services for Design/Builder - sliding scale Preconstruction fee on first $1 ,000,000 of construction cost Preconstruction fee on construction cost over $1 mil. - 3/4% 7. AlE Site Design Fees Schematic Design 50% CD Design 100% CD Design Final CD Construction Administration As-Built Preparation Design Meetings 8. AlE Building Design Fees 9. Topo Verification of Existing Site Budget 9.1 Additional Topo survey authorized by City 9.2 Geotech report/geotech testing/materials testing by CTE 9.3 Additional CTE WQTR Report Requirements auth by City 9.4 Complete VE Design Allowance 10. Reimbursables Budget Total Preliminary Design & Build Cost 11. Cost of bond premium - sliding scale First $500,000 - $12.00 per 1,000 Premium over $500,000 - $8.00 per 1,000 12. Insurance 13. Building/Utility/Site Fees (by owner) 14. City staffing / Inspections (by owner) 15. Additional 1 yr Landscape Maintenance Allowance (Scope TDB) Total Preliminary Project Cost Design Fees, Pre-Construction Fees and GC Summary: General Conditions (line item 2 above) Design and Pre-Construction Fees (line items 6-9.4 above) Total Design Fees, Pre-Canst. Fees and General Conditions Erickson-Hall Construction Co. Sept 30, 200 5-5 fl.TTACHMENT I GMP with VE $ 7,249,813 $ 276,000 $ 7,525,813 $ 100,000 $ 30,000 $ 27,500 $ 276,291 $ 7,959,604 $ 20,000 $ 52,197 $ 14,650 $ 93,925 $ 70,580 $ 31,155 $ 39,998 $ 7,135 $ 9,040 $ 68,180 $ 5,000 $ 9,215 $ 65,000 $ 2,360 $ 25,000 $ 20,000 $ 8,493,038 $ 6,000 $ 63,944 $ 25,479 $ $ $ 100,000 $ 8,688,462 $ 276,000 $ 513,435 $ 789,435 THE ATTACHED AGREEMENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORMALL Y SIGNED UPON APPROVAL BY THE CITY COUNCIL -!h~~~O!5~ ~ Bart Mlesfeld II Interim City Attorney Dated: lo/,/o'g First Amendment to the Design/Build Agreement between the City of Chula Vista and Erickson-Hall Constru,ction Co. . for Design and Construction of Mt. San Miguel Community Park 5-6 First Amendment to the DesignlBuild Agreement between the City of Chula Vista and Erickson-Hall Construction Co. For Design and Construction of Mt. San Miguel Community Park This First Amendment is made and entered into this 7th day of October, 2008 by and between the City of Chula Vista ("City"), a mUIllcipal corporation, and Erickson-Hall Construction Co. ("Design Builder or DiB"). City and Design Builder are sometimes referred to as Parties ("Parties") RECITALS WHEREAS, the City and D/B entered into an agreement ("Original Agreement") dated September 19, 2006 and approved by City Council Resolution 2006-290, whereby D/B agreed to provide design and construction services to the City for the construction of a fully functional park, Mt. San Miguel Community Park ("Project"), including the facilities and site-work; and WHEREAS, pursuant to the Original Agreement, the guaranteed maximum pnce ("OMP") was not to exceed $5,841,067; and I'.'HEREAS, due to the complexities of the Project, the actual OMP, as determined at the 90% construction drawing stage, will exceed $5,841,067; and VlHEREAS, D/B and City staff have value-engineered the Project to provide the best product at the most effective price; and WHEREAS the Parties desire to amend the Original Agreement to increase the OMP to $8,688,462 for a fully functional Mt. San Miguel Community Park. NOW, THEREFORE, in consideration of the Recitals and the mutual obligations of the Parties as set forth in this First Amendment, the City and Design Builder agree as follows: AGREEMENT 1. Section 1: General Scope of Work to be Performed bv DiE. subsection 1.3.1, in the sixth line of the paragraph, delete "$640,386" and replace \Vith "$789,435". 2. Section 1: General Scope of Work to be Performed by DiE. subsection 1.3.2, delete "March 28, 2008" and replace with "rn'elve (12) months after the City-issued Notice to Proceed" . 1 5-7 3. Section 1: Oeneral Scope of Work to be Performed bv DIB, subsection 1.3.3, delete "June 28, 2008" and replace -with "thirty (30) calendar days after "Substantial Completion" (as defined in S16.1)". 4. Section 11: Insurance. subsection 11.3.1.5, Builder's Risk PropertY Insurance, in the ninth line of the paragraph, delete "$4,800,000 million" and replace with "7.9 million". 5. Section 11: Insurance. subsection 11.3.1.5, Builder's Risk Property Insurance, in the third paragraph in this subsection, delete "$5,000" and replace with "$10,000". 6. Section 11: Insurance, subsection 11.4.1.5, delete "$4,800,000" and replace with "$7.9 Million". 7. Section 13: D/B OMP for Services and Reimbursements. subsection 13.1.1, in the first line of the paragraph, delete "$5,841,067" and replace with "$8,688,462". 8. Section 13: DIB OMP for Services and Reimbursements, subsection 13.1.1, in the second line of the paragraph, delete "$640,386" and replace with "789,435". 9. Section 13: DIB OMP for Services and Reimbursements, subsection 13.2, in the fifth line of the paragraph, delete "$253,000" and replace -with "$276,000". 10. Section 13: DIB aMP for Services and Reimbursements, subsection 13.2, in the fifth line of the paragraph, delete "$387,386" and replace with "$513,435". 11. Section 13: D/B OMP for Services and Reimbursements, subsection 13.2, in the sixth line of the paragraph, delete "$640,386", in both places in that sixth line, and replace with "$789,435", in both places in that sixth line. 12. Exhibit 2: Design Build Fee Structure, delete Exhibit 2, Design Build Fee Structure, to the Original Agreement and replace with the attached Revised Exhibit 2, Design Build Fee Structure. All other terms of the Original Agreement shall remain in full force and effect. [END OF PAGE. THE NEXT PAGE IS THE SIGNATURE PAGEl 2 5-8 Signature Page to First Amendment to the DesignlBuild Agreement between the City of Chula Vista and Erickson-HaD Construction Co. For Design and Construction ofMt. San Miguel Community Park Cheryl Cox Mayor Erickson-Hall Construction Co. ~ Na.n1e: (.. VI.._I....a1 Title: . CHoI~OtI\Cer ,i. ..:... "'-- I Co. By: City of Chula Vista By: Date: ATTEST: Donna Norris, CMC Interim City Clerk Approved as to form: Bart Miesfeld Interim City Attorney J:\General Services\GS Admil1istration\CouncH Agenda\Mount San Miguel Park\SMR Amendment and Sig Page Final 09300&.doc 3 5-9 RESOLUTION 2008- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE FIRST AMENDMENT TO THE DESIGN/BUILD AGREEMENT WITH ERICKSON-HALL CONSTRUCTION CO. FOR THE DESIGN AND CONSTRUCTION OF MT. SAN MIGUEL COM:YIUNlTY PARK TO REVISE THE GUARANTEED MAXIMUM PRfCE WH EREAS. on February In. 2004. pursuant to Resolution No 2004-044. the City COllnci I approved the Final DI'an Master Plan for a 19-acre public community park site in the San VIigucl Ranch subdivision; and WHEREAS. on September 19, 2006, pursuant to Resolution No. 2006-290, the City Council approved a Design/Build Agreement with Erickson-Hall Construction Co. for the design and construction of Mt. San Miguel Community Park; and WHEREAS, the Design/Build Agreement included a not-to-exceed price of $5.841,067 with the Guaranteed Maximum Price ("GMP") to be set upon receipt by the City of 90% CO\lstrllctioll drav'v'ings; and WHEREAS, Erickson-Hall Construction Co is nearing the end of the design phase and is re;lcI v to stan the construction phase for the Park; and WHEREAS, Erickson-Hall Construction Co. has requested that the GMP be set at S8.!,88,4(,2 and that the dates for Substantial Completion and Final Completion be revised. NOW. THEREFORE. BE [T RESOLVED by the City Council of the City of Chula Vista that it approves the First Amendment to the Design/Build Agreement with Erickson-Hall Construction Co. for the design and construction of Mt. San Miguel Community Park to revise the (;uaranleed Maximum Price. Presemed by: Approved as to form by . JiL,,-1L ~ Bali Miesfeld Interim City Attorney / n~ {/ Richard A. Hopkins Director of Engineering IIT~:i r I ~ I-.I~ 1< I': L: \( lS RI.:~I\~~()()X ] (1-()7 -llk'}vlt \Jll IVI i~L1c1 Il'~1\ : I'c\i~cd hy' 'x .dnc 5-10 RESOLunON 2008- REsownON OF THE C[TY COUNCfL OF THE CITY OF CHULA VISTA AMENDrNG THE FISCAL YEAR 2008/2009 CIP PROGRl\M AND APPROPRIATING $7.769,399 FROM THE AVAILABLE PARK ACQUISITION AND DEVELOPMENT (PAD) FUND BALANCE TO EXISTlNG CAP[TAL IMPROVEMENT PROJECT, MOUNT SAN MIGUEL COMMUNITY PARK (CIP PR260) TO COMPLETE THE PROJECT WHEREAS. on Febl-uary 10, 2004. pursuant to Resolution No. 2004-044. the City Council approved the Final Draft Master Plan for a 19-acre public community park site in the San,\[ I"uel Ranch subdivision; and WHEREAS. on September 19. 2006. pursuant to Resolution No. 2006-289. the City Counci I e,;tabl ished a new Capital Improvement Project entitled "MoLll1t San Miguel Community Park (PR260)"': and WHEREAS. on September 19. 2006. pursuant to Resolution No. 2006-290. the City Council approved a Design/Build Agreement with Erickson-Hall Construction Co. for the design and construction of Mt. San Miguel Community Park; and WH EREAS. the Design/Build Agreement contain'ed a not-to-exceed price of $5.841.067 with the GMP to be set upon receipt of90% construction drawings. WHEREAS, Erickson-Hall Construction Co. has requested the GMP be set at $8,rJ88,462; and WHEREAS. the total project cost for Mt. San Miguel Community Park is $lO,094.707; and WHEREAS. staft- requests that $7.769.399 from the available Park Acquisition and Development ("'PAD"') runci balance be appropriated to the Mount San Miguel Community Park (CIP PR260) project. 5-11 NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Chula Vista that it amends the Fiscal Year 2008/2009 C1P Program and appropriates $7,769,399 from avail,lble Park Acquisition and Development ("PAD") Fund balance to existing Capital Improvement Project Mount San Miguel Community Park (CIP PR260) to complete the project Presented by: Approved as to fonn by Richard A. Hopkins Director of Engineering Y-i'-o~_ t~ -01.-?~l ~ Bart Miesfeld / ? Interim City Attomey 1--[: 1:\ i i I N F F I": I~ I~:,,( J."R<:~lls2(j(jX' 11l_()7 -():-\',v!t SJll rvl iO;lIel 1-<:Sl' :: r"evised hy ec.d\lc 5-12 CITY COUNCIL AGENDA STATEMENT ~4. ~f:.. CITY OF =t ~ ~~ CHULA VISTA OCTOBER 7, 2008, Item~ ITEM TITLE: REPORT REGARDING REQUEST THAT THE CITY SEEK REIMBURSEMENT FROM THE SAN DIEGO COUNTY DISTRICT ATTORNEY FOR LEGAL FEES INCURRED IN RESPONSE TO GRAND JURY INVESTIGATIONS INTERIM CITY ATTORNEY ~t; INTERIM CITY MANAGER SUBMITTED BY: REVIEWED BY: 4/5THS VOTE: YES D NO 0 SUMMARY This item has been prepared in response to a referral by Councilmembers Ramirez and Castaneda regarding reimbursement by the San Diego District Attorney's Office oflegal fees incurred by the City related to prosecution activities by the District Attorney's Public Integrity Unit. ENVIRONMENTAL REVIEW The Environmental Review Coordinator has reviewed the proposed aCl1Vlty 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 because adoption of the appendix to the Local Conflict of Interest Code does not result in a physical change to the environment; 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. RECOMMENDATION That the Council take action as it deems appropriate. BOARDS/COMMISSION RECOMMENDATION Not Applicable. DISCUSSION At the City Council meeting on September 23, 2008, Councilmembers Castaneda and Ramirez requested that the City Attorney's office agendize an item to discuss a request to the District Attorney for reimbursement of legal fees paid by the City in connection with prosecutorial activities by the District Attorney's Public Integrity Unit. In response, the l:\AlIomeyIJILLMIAGENDA STATEMENTS\Rqstlor DA 10 reimburse Legal fees (~~c,ofBCM redlineJ_IQ-07-08.doc OCTOBER 7, 2008, Item" Page 2 of2 City Attorney's office prepared a memorandum to the Councilmembers. The memorandum has been provided to the Councilmembers under separate cover. The memorandum is not included with this agenda statement because it is protected by the evidentiary privileges attached to attorney-client communications and documents constituting attorney work product; it is also protected from disclosure by California Government Code ~6254(k). 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 I 8704.2(a)(1) is not applicable to this decision. FISCAL IMPACT There is no fiscal impact associated with this item. A TT ACHMENTS None. Prepared by: Jill D.S. Maland. Deputy City Attorney. Attorney J:lAllome.vV/LLMIAGENDA STATEMENTS\Rqs/jor DA 10 re""hllrse Lagulfees (cleoll ceo/BeH red/illei_'O-07-08.doc J:\AltomeyIJILLMIAGENDA STATEMENTS\Rqst for DA 10 reimburse Legal fees (ta~cZfBCM redlineLlO-07-08.doc OlY OF (HUlA VISTA October 2, 2008 FROM: Scott Tulloch, Interim City Manager ~7 SUBJECT: Documents released pursuant to City Council Resolution No. 2008-232 Attached are the documents released pursuant to City Council Resolution No. 2008-232 at the City Council meeting of September 23, 2008. They are being provided to allow public discussion. Attachments 7-1 ~ 2JS() 1 C8.I8.basas Road SUite 1015 Cal:.1Cas:J.s, CA 91302 818.704.0195 F1X 818.7044729 35-325 Date Palm Drive SL:ite 202 Cathedrai City, CA 92234 760.770,0873 Fax 760.770.1724 Green, de BOl1nowsk1l & ,Quintanilla, LLP i"'\..rtOTI1ey'S at L"aW \\/"\^<w.gdqlaw.com Direct E-mail Address: sq ulntan illa@gdqlaw.com Reply to: Cathedral City Office SUBJECT TO ATTORNEY/CLIENT PRIVILEGE Exempt from Public Disclosure Government Code Section 6254, subd. (k) MEMORANDUM To: Bart Miesfeld, Interim City Attorney City of Chula Vista Steven B. Quintanilla, Special Counsel' July 3, 2008 Reimbursement of Attorneys Fees and Other Legal Costs CHVA.0001 From: Date: Re: Our File: Backqround: it is my understanding that City Councilmember Steve Castaneda was subpoenaed to testify in an investigatory Grand Jury proceeding regarding his participation (as a councilmember) in approving a tentative map and his potential future participation (as a council member) in approving the subject final map. I further understand that as a result of the Grand Jury investigation, Mr. Castaneda was indicted on multiple counts of perjury ("Subject Charges"), but in the end ~e was [\JOT convicted on any of the Subject Charges. I also understand that all of the Su,bject Charges were disposed of as follows: (a) Mr. Castaneda was acquitted by a jury of some of the Subject Charges; (b) some of the Subject Charges were dismissed by motion; (c) the jury reach a deadlock on some of the Subject Charges; and (d) the remaining Subject Charges were dismissed in the "interest of justice" by the District Attorney. In light of the above, Mr. Castaneda has submitted (via his legal counsel) a request for reimbursement of his attorneys' fees and costs in an amount of approximatel);. $200,000 Reimbursement of Attorneys' Fees and Other Legal Costs Page 1 of 4 7-2 which he claims he incurred in his defense of the Subject Charges. Mr. Castaneda submits that he is entitled to reimbursement of his attorneys' fees and other legal costs pursuant to California Government Code section 995.8 and Chula Vista City Council Policy 346-oi. Issue: Is a councilmember entitled to reimbursement of attorneys' fees and other legal costs incurred by the council member in the defense of criminal charges brought against the councilmember by the District Attorney as a result of a grand jury investigation? Brief Answer: A council member is entitled to be reimbursed by the City of attorneys fees and other legal costs incurred by the council member in the defense of criminal charges brought against the councilmember by the District Attorney as a result of a grand jury investigation if: (a) the criminal charges were related to the counci/member's responsibilities and/or duties as a counci/member; (b) the city council determines that the defense was in the best interest of the city; and (c) the councilmember did not act with malice against the interests of the city. Analysis: Government Code Section 995.8 Pursuant to Government Code section 995.8, the City may provide for the defense of a criminal action or proceeding brought against a council member if: (a) The criminal action or proceeding is brought on account of an act or omission in the scope of his or her office; and (b) The city determines that such defense would be in the best interests of the public entity and that the official acted, or failed to act, in good faith, without actual malice and in the apparent interests of the public entity. In this particular case, it appears that the above findings can be made to support reimbursemene of Mr. Castaneda"s attorneys' fees and other [egal costs based on the facts as I understand them. 1 Chula Vista City Council Policy 346-02 essentially tracks the same language as California Government Code section 995.8. 2 When read in conjunction with the stated purpose of Chula Vista City Council Policy 346-02 which IS to provide for defense costs in criminal actions, it is clear that providing for the defense of an official In a criminal proceeding also includes the option of reimbursing the official for defense costs. Reimbursement of Attorneys' Fees and Other Legal Costs Page 2 of 4 7-3 It is clear that that the crux of the Subject Charges were directly related to Mr. Castaneda's responsibilities and duties as a councilmember with respect to approving a tentative map and potentially reviewing and approving a final map. As I understand the situation, the indictment supporting the Subject Charges indicated that the basis of the Su bject Charges pertained to possible financial conflicts of interests under the Political Reform Act3 and/or a possible Government Code Section 10904 violation related to the following: (a) Mr. Castaneda renting a unit in a residential complex called "Sunbow" after Mr Castaneda voted to approve a tentative map to subdivide Sun bow into condominiums and (b) whether Mr. Castaneda received or intended to receive any special benefits (because of his status as a public official) by renting the subject unit. In addition, I understand that another issue germane to the Subject Charges was whether Mr. Castaneda intended to purchase one of the Sunbow condominiums after the conversion (i.e., approval of the final map). In light of the above, I sincerely believe that the Subject Charges were only brought on account of an act or omission that was clearly within the scope of Mr. Castaneda's duties as a council member, particularly since the Subject Charges would not have likely been filed against Mr. Castaneda if he was NOT a councilmember. (Note: The above-referenced conflict of interest regulations and Section 1090 law would not have applied to Mr. Castaneda as a non-City official under the subject circumstances.) In addition, I believe that the defense of the "Subject Charges," albeit provided by Mr. Castaneda himself rather than the City, was in the best interest of the City since there was no proven evidence that Mr. Castaneda acted with any malice and it is clear that the subject act was performed in the course of Mr. Castaneda's duties and responsibilities as a councilmember. Providing reimbursement of attorneys' fees and other legal costs under such conditions would be wholly consistent with the stated purpose of Chula Vista City Council Policy 346-02 which is to provide for defense costs in criminal actions where the City official has acted in good faith in the course of employment. In summary, it is my recommendation that since there was no malice involved in light of the fact that Mr. Castaneda was NOT convicted of any of the Subject Charges as more particularly described above and since the act of approving the Sunbow tentative map (which was the basis of the Subject Charges) is an act that falls within the scope of Mr. Castaneda's role as a cou ncilmember, the City Council should find that Mr. Castaneda's defense against the Subject Charges was in the best interest of the City particularly since providing reimbursement under such circumstances would be wholly consistent with the stated purpose of City Council Policy 346-02. .' The Political Reform Act prohibits a public official from making, participating in the mala..."'1g, or in any 'Hay anen1pting to use his official position to influence a govenm1ental decislOl1 ifhe or she know or has reason to Imowthat he or she has a financial interest in that declsion. .. Section 1090 provides that members of the legislature, state, county, district, judicial district and city officers or employees shall not be financially 1l1terested in any contract made by them in their official capacit'j, or by any body or board of vvhich they are members. Reimbursement of Attorneys' Fees and Other Legal Costs Page 3 of 4 7-4 Finally, as discussed above, Government Code section 995.8 provides that reimbursement is permitted if the City Council finds that the subject official acted, or failed to act, in good faith, without actual malice and in the apparent interests of the public entity in addition to finding that criminal action was brought on account of an act or omission in the scope of the subject official's office and that the defense was in the best interests of the City. As more fully discussed above, since Mr. Castaneda was not convicted of any of the Subject Charges, this lends support to the conclusion that Mr. Castaneda did not act with any malice that was adverse to the City's interests. Recommendation: 1. That the City Council find, based on the facts presented by the City's legal counsel, that: (a) the Subject Charges were filed against Mr. Castaneda on account of an act or omission within the scope of his duties and responsibilities as a council member; (b) the defense of the Subject Charges by Mr. Castaneda was in the best interests of the City; and (c) that there is no proven evidence that Mr. Castaneda acted with actual malice that was adverse to the City's interest. 2. That the City Council approve the requested reimbursement subject to: (a) the City Attorney's review and approval of the submitted legal invoices; (b) a refund of all or a portion of the fees and costs to the City upon a determination by a court of law in any subsequent legal proceeding that Mr. Castaneda is guilty of any of the Subject Charges; and (c) a refund of all or a portion of the fees and costs to the City in proportion to any recovery of such fees or costs by Mr. Castaneda via insurance coverage or any other source. P:\Ji..PPS",\NPOAiA\CHVA\QOOI General Matters\MEMO\CC2-1 Opinion ?'e Reimburseme~t of Attorneys Fees {07.13.08).doc Reimbursement of Attorneys' Fees and Other Legal Costs Page 4 of 4 7-5 OlYOf (HUlA VISTA Confidential Attorney-Client Privileged Communication OFFICE OF THE CITY ATTORNEY LITIGATION DEPARTMENT DATE: July IS, 2008 TO: The Honorable Cheryl Cox, Mayor and City Councilmembers FROM: Jill D.S. Maland, Deputy City Attorney VIA: Bart C. Miesfeld, Interim City Attorney RE: Councilmember Castaneda's Formal Request for Payment of Legal Fees I. INTRODUCTION The City Anomey's office recently received a written request from Marc Carlos, of the law firm Bardsley & Carlos, for the payment of legal costs and fees incurred by Councilmember Castaneda in connection with his defense in the criminal action entitled, People v. Steven Castaneda, SDSC No. SCDI938451 Mr. Carlos represented Councilmember Castaneda in the action. Mr. Carlos provided invoices in the amount of $194,314.90 for legal costs and fees incurred in Councilmember Castaneda's defense and requested that the City pay for those costs and fees. This memorandum is intended to provide the City Council with a sllinmary of the factual background that gave rise to this request and an analysis of the associated legal issues for the Council's consideration in responding to the request. II. FACTUAL BACKGROUND Councilmember Castaneda took office as an elected member of the City Council in December, 2004. In March 2005, the City Council approved a Tentative Map for a condominium conversion project known as Sunbow Villas ("Sunbow"). Councilmember Castaneda voted in favor of the Tentative Map. The Tentative Map provided for certain relocation assistance for residents who rented an apal1ment at the project. In August 2005, after approval of the Tentative Map, Councilmember Castaneda rented an apartment in the Sunbow project. The Final Map for the Sunbow project was presented to the Council for approval on 1 A copy ofMr. Carlos' letter, dated May 5, 2008, is attached to this memorandum for your reference. 7-6 The Honorable Cheryl Cox, Mayor and City Councilmembers July 15,2008 Page 2 March 14, 2006, The item was pulled from the agenda by our office because we were made aware, on that day, that Mr, Castaneda was renting an apartment at Sunbow, As a result, we needed additional time to ensure there were no potential conflicts of interest under the Political RefOlm Act or Government Code Section 1090, The Political Reform Act (the "Act") prohibits a public official from making, participating in the making, or in any way attempting to use his official position to influence a governmental decision if he or she know or has reason to know that he or she has a tlnancial interest in that decision, Section 1090 provides that members of the legislature, state, county, district, judicial district and city officers or employees shall not be financially interested in any contract made by them in their official capacity, or by any body or board of which they are members, Accordingly, in light of Mr, Castaneda's rental interest, we recommended that he abstain from voting on the Final Map. Subsequently, Councilmember Castaneda was subpoenaed to testify in an investigatory Grand Jury proceeding brought by the San Diego County District Attorney's Office and its Public Integrity Unit. The investigation involved issues related to Mr. Castaneda's role as a City Councilmember, his approval of the tentative map and his potential future action on the fmal map. The activities that Mr. Castaneda was questioned about during his Grand Jury testimony were alleged to have happened while he was a sitting City Councilmember. According to the indictment supporting the peljury charges filed against him, Mr. Castaneda testified that: (i) when he rented the apartment at Sunbow, he was told he would not be eligible for any benefits or relocation fees; (ii) he did not plan to buy a condo at Sunbow and did not tell anyone he was planning to do so; (iii) he agreed to the fact that he would not receive a $1,000 benefit from Sunbow and did not expect any benefit; and, (iv) he did not tell the Sunbow representative that he was a City Councilmember. It is our understanding that Mr. Castaneda was questioned about these matters because of his status as a functioning City official when he rented the Sunbow apartment. Specifically, we believe that the reason the District Attorney's Office pursued this line of questioning with Mr. Castaneda was because, if he had accepted a benefit or had intended to purchase a condominium at Sunbow, this may have created a financial interest in the Sunbow project. If Mr. Castaneda voted on a project in which he had a financial interest, it may have been a violation of the conflict of interest laws applicable to legislative body members. The District Attorney apparently found no wrong doing by Mr. Castaneda in c0l1l1ection with the wlderlying investigation and did not file any charges against him in connection with that matter. However, the District Attorney alleged that during the Grand Jury investigation Mr. Castaneda perjured himself during his testimony. As detailed above, the principle area of perjury, as alleged, centered on whether Mr. Castaneda ever intended to purchase one of the Sunbow condominiums after the conversion and whether he received or intended to receive any benefits by renting the Sunbow unit. Again, it is our wlderstanding that the reason Mr. Castaneda was questioned about potential benefits received from Sunbow and his intent to purchase one of the condominiums was that doing so may have created a financial conflict of interest due to Mr. Castaneda's status as a sitting Councilmember. The tentative map for the Sunbow project had come before the City Council for approval prior to YIr. Castaneda renting JlAltorneyVILLrvl\I>1IMOS\COll~cjl Memo. Castaneda Fees. Final doc 7~7 The Honorable Cheryl Cox, Mayor and City Councilmembers July 15,2008 Page 3 his apmiment unit. The final map was slated for Council consideration after Mr. Castmleda rented the apm1ment. If Mr. Castaneda had a financial interest in the project and proceeded to vote on it, he may have violated governing conflict of interest laws. These laws were at issue solely because Mr. Castaneda was a sitting Councilmember. Thus, his status as a City official appears to have been at the crux of the perjury charges that were filed against him. Mr. Castaneda was subsequently indicted on multiple counts of perjury. Mr. Carlos represented Mr. Castaneda in defending the perjury charges. On April 23, 2008 a jury acquitted Mr. Castaneda of six felony counts of perjury (th.ree charges were apparently dismissed upon a defense motion by the court after the prosecution's case-in-chief) and deadlocked on four remaining counts. On May 2, 2008, the District Attorney dismissed all remaining charges against Mr. Castaneda. As a result, Mr. Castaneda, through his attorney, has requested that the City pay all legal costs and fees incurred as a result of his defense of tlle criminal prosecution against him. III. LEGAL AUTHORITY AND Al''<AL YSIS A. Legal Authority Legal authority relevant to the City's obligation to provide Mr. Castaneda's legal defense in this action can be fOWld in the City Charter" the California Government Code and Council Policy 346-02. Under periinent portions of the City Chmier of Chula Vista found in sections 503 (a) and (b) the City Attorney is required to: (a) Represent. . . the City Council and all of city officers in all matters of law pertaining to their offices; [and] (b) Represent. . . any city officer. . . in any or all actions and proceedings in which. . . such officer. . . by reasons of his or her official capacity is concerned or is a par1y. California Government Code at section 995.8 permits a city to pay legal fees incurred by its employees under ceriain conditions. (See section 995.8 attached.) Such section provides that a public entity is not required to provide the defense of a criminal action but may do so if it finds the following conditio'ns: (a) The criminal action or proceeding is brought on account of an act or omission in the scope of his employment as an employee of the public entity; and (b) The public entity determines that such defense would be in the best interests of the public entity and that the employee or former employee acted, or failed to act, in good faith, Witllout actual malice and in the apparent interests of the public entity. J\AtlOI'l1~y\J1LLM\ll-fEMOS\Council Memo - Castaneda Fees - F.naLdoc H8 The Honorable Cheryl Cox, Mayor and City Councilmembers July 15,2008 Page 4 Section 995,8, therefore, provides two conditions upon a public entity authority to provide for the defense of a criminal action against one of its employees, First, the criminal action must be brought on account of an act or omission of the employee while his was acting in the scope of his public employment. Second, the public entity must make findings that paying the defense would be in the best interests of the City and that the employee acted in good faith without actual malice in the apparent interests of the City, It should also be noted that Council Policy 346-02 for the City of Chula Vista clarifies the conditions under which the City will provide for the cost of criminal defense, (See Policy 346-02 attached,) It is the stated purpose of the policy to provide for defense costs in criminal actions where the City official has acted in good faith in the course of employment The policy provides that the following findings must be made by the City Council: (a) The criminal action or proceeding is brought on account of an act or omission in the scope of employment as an employee of a public entity; (b) Defense would be in the best interests of the public entity; and (c) The employee or former employee acted or failed to act in good faith without actual malice and in the apparent interest of the public entity, B. Legal Analysis In this case, ML Castaneda's perjury trial arose out of testimony he gave during a Grand Jury investigation. During the investigation, ML Castaneda was specifically questioned about events that took place during his tenure on the City Council, including his involvement with the Sunbow Villas. The Sunbow Villas condominium conversion was the subject of Council action, including approval of the Tentative Map on March I, 2005. Mr. Castaneda's subsequent rental of a unit at Sunbow Villas raised issues because he was a member of the City Council. Specifically, the interest he held in Sunbow Villas may have given rise to violations of the Political Reform Act, or Section 1090. This was the precise reason our office advised him to abstain from voting on approval of the SW1bow Final Map. But for ML Castaneda's status as a public official of the City, his interest in the Sunbow Villas would not have implicated the Act, or Section 1090 and likely would not have been the subject of a Grand Jury investigation. Once Mr. Castaneda was subpoenaed by the Grand Jury, it was his obligation to appear and answer questions as pat1 of his duties as a Councilmember. It is our understanding that Mr. Castaneda cooperated fully in the investigation and provided testimony in conjunction with it. The testimony was incident to his duties as a Councilmember and was not performed for the benefit of himself or to serve his OW11 purposes or convenience. It would seem logically to LlALtorney\JILLIv!\MEMOS\Council Memo - CaiiLlMda Fee, . Final.doc 749 The Honorable Cheryl Cox, Mayor and City Councilmembers July 15,2008 Page 5 flow that any prosecution arising out of responses he provided to the Grand Jury would also flow indirectly or directly from the same scope of employment. These facts seem to support findings that the criminal action was brought as a result of acts taken within the scope of !vir. Castaneda's course of employment v.ith the City. The Council may find that the payment of the defense costs in this instance would be in the best interest of the City. The duties of Councilmembers are performed for the benefit of the public. The public obviously would be directly concerned with preserving and protecting Councilmembers from the hazards of attacks and litigation, including criminal prosecutions, to which the performance of their official duties might expose them. With such protections afforded, the public can expect that a Councilmember will be able to zealously act for the benefit of the public without hesitation by considerations of possible personal involvement in defending resulting litigation or wllounded prosecutions. The costs of potentially defending litigation brought against one personally can be significant. Wnen the litigation is incident to one's service as a public official, the Ciry can benefit by providing coverage for those fees, when the required findings can be made. ~ot doing so would likely chill the application of decent and good members of the community in seeking to serve as public officials. In addition, it may subject the City to additional costs and fees if the City official or employee chooses to litigate the matter against the City. Finally, this Council may find that Mr. Castaneda was only acting in good faith, without any actual malice and in the apparent best interests of the City when he appeared and testified before the Grand Jury. After a full criminal trial it was found that charges that Mr. Castaneda acted inappropriately were such that he was either acquitted or the remaining charges dismissed. It would appear that Ivlr. Castaneda was simply answering questions posed by the Grand Jury in the best interest of the City and that his actions were done without malice. IV. INDEPENDENT LEGAL CONSULTATION In addition to our review and analysis of this matter, we consulted with outside legal counsel to obtain an independent analysis. Specifically, we retained Steven Quintanilla. Mr. Quintanilla is a member of the law firm Green, de Bortnowsky & Quintanilla and has approximately 16 years experience specializing in municipal law. Based on Mr. Quintanilla's review of the facts and law surrounding this matter, he provided us with his written legal opinion and recommendations. His recommendations are set forth below: 1. That the City Council find, based on the facts presented by the City's legal counsel, that: (a) the Subject Chares were filed against Mr. Castaneda on account of an act or omission within the scope of his duties and responsibilities as a cow1cilmember; (b) the defense of the Subject Charges by Mr. Castaneda was in the best interests of the City; and (c) there is no proven evidence that Mr. Castaneda acted with actual malice J\Altorne;i'J1LUvf>.jvIEMOS\Caum:i1 ,\'lemQ - C~,taneda F~es . F;naldoc 7 -51 0 The Honorable Cheryl Cox, Mayor and City Councilmembers July 15,2008 Page 6 that was adverse to the City's interest. 2. That the City Council approve the requested reimbursement subject to: (a) the City Attomey's review and approval of the submitted legal invoices; (b) a refund of all or a pOliion of the fees and costs to the City upon a determination by a court of law in any subsequent legal proceeding that Mr. Castaneda is guilty of any of the Subject Charges; and (c) a refund of all or a portion of the fees and costs to the City in propOliion to any recovery of such fees or costs by Mr. Castaneda via insurance coverage or any other source. V. CONCLUSION The City of Chula Vista has adopted a Policy with the stated purpose of providing defense costs to City officials in criminal actions where the official acted in good faith in the course of employment. In this case, Mr. Castaneda was charged with several counts of perjury. Based on the pleadings and other infOlmation available to us, we believe the charges were filed due to Mr. Castaneda's status as a City official and arose out of what the District Attomey perceived as potential violations of the conflict of interest laws governing the action so legislative body members. Ultimately, each count was either dropped or resulted in a not guilty verdict. Based upon the foregoing, we would recommend that the Citv Council make the required findings and authorize reimbursement of Council member Castaneda's defense costs and fees that are in confonnance with those findings. J.'AaomeyIJILLM'uvIEMOS\Council Memo - Castaneda i'~es. <',nal.doc 7-611 August 8, 2008 Mr. Ball Meisfeld, City Attomey C,tv ofChula Vista 276 FOUllh Avenue Chula Vista, CA 91910 Re' Castaneda Attomey Fee issue Dear Mr Meisfeld: This letter is in response to yom request for an opinion regarding a recent allegation of a Brown Act violation involving the holding of closed sessions to discuss a credible threat of litigation brollght by the criminal law attomey ofCounciljnember Steve Castaneda. Our office has ,-eviewed the documents related to this matter and have dIscussed the issue with various representatives in the City Attomey's office. It is our opinion that no Brown Act violation has occurred and we do not recommend that the City Council seek to cure the matter within thirty days, in that seeking a public cure wOllld probably Jeopardize existing settlement negotiatlOns regarding payment of attorney's fees. DEFENSE OF COUNCILMEMBER CASTANEDA After the successfltl defense of several criminal charges brought against COlll1cilmember Castaneda, his attorney submitted a formal written demand to the City Attorney's office for payment of attorney's fees. A copy of this letter is attached as Attachment A The letter argues that Councilmember Castaneda's lawyer is entitled to compensation because Council member Castaneda successfully defended criminal charges related to the course and scope ofl1lS official duties as a City Councilmember. In tlle lette,-, Attomey Marc X, Carlos stated il1 palL as follows: In this regard, please consider this letter a fonllal request for payment of legal fees. A copy of an itemized legal bill for services is attached to this letter. !'vir. Castaneda has spent over a year and a half of his life defending this case and is prepared to fully litigate his legal tights under the Charter including any damages resulting from the City's actions. (CoLTespondence of Marc X. Carlos to City Attomey A1111 Moore, dated May 5, 2008. page 3.) 7-12 C2staneda Attomey Fee Issue August 8. 2008 Page 2 This letter clearly states that legal action will be taken if payment is not received for COllJ1cilmember Castaneda's legal bills. Accordingly. this letter would fall under the .'threat of litigation" that would result in "significant exposure to litigation against a local agency." (Govemmenr Code section 54956.9(b)(l) & (3)(C).) under this subsection of the "pending litigation" oftl1e Brown Act. the Council is free to discuss the matter in closed session. While Government Code section 549575 indicates that the letter from Mr. Carlos is a public record subJ ect to disclosure, the Council may meet and discuss the matter in closed section. When meeting in closed session, the Brown Act requires that the legislative body state on its agenda the subdivision of the section that authorizes the closed session. (Government Code section 54956.9.) Since the matter does not fall under Subdivision (a) (formally initiated litigation). the title of the litigation does not have to be listed. (Govemment Code section 54956.9.) Our office has reviewed the agendas in which this matter was discussed, and the subsection (e) was listed on each agenda in which the matter was discldssed, in compliance with the Brown Act CLOSED SESSION DISCUSSIONS During the closed session, it is our understanding that threat oflitigation brought up by the letter from Attorney Carlos was discussed. As part of those discussions, the City Council, with Council member Castaneda absent to due a conflict of interest, made preliminary determinations on the ability of the City to pay attorney's fees incurred by Councilmember Castaneda. Two legal memos have beell reviewed by this. office discussing this issue, and both memos Indicate that payment of the fees would be justified in that the Council had the ability to make the finding in qlLestion. After rev Lewing the findings required and the memos discussing the law, we concur Lll the recommendations givel1 to the City Council. It is our understanding that the City Council directed the City Attorney's office to engage in negotiations with Mr. Carlos regarding the potential payment of attorney's fees. Those negotiations are sensitive and on-going. Under the Brown Act, nothing prevents a City Council from discussing an actual tlu'eat of litigation in closed session. When so doing, the Council agenda need only list the subsection under which the closed sessiol1 is beil1g held. Further, the subject of those discussions caIUrot be disc losed outside of the control group (attending City Councilmembers, legal staff and pertinent City personnel). Our office concurs i,n the legal opinion of the City Attorney's office and the opinion of outside counsel that this matter has been properly discussed and the City Council is within its legal rights to give the interim directions that have been gIven so far. ANNOUNCEMENT OF FORMAL DECISION To date. no "tinal action" has been taken on this matter. Under the Browl1 Act, a public repon of action taken must be gIven of all actIons taken in closed session. 'W11ile the Council has made a preliminary determination to pay fees and make the findings required by law to allow for 7-13 . Castaneda Attomey Fee Issue AUgllst 8, :2008 Page 3 their payment, no final decision has been made at this point. Under Government Code section 54957.I(a)(3) a public report must be given: (3) including the vote of every member present, approval given to its legal counsel of a settlement of pending litigation, as defined in section 54956.9, at anv stage prior to or during ajudicial or quasi-judicial proceeding shall be reported after the settlement is final. .. It is our understanding that, while negotiations continue, the matter has not been finally resolved. Since the matter has not been finally resolved, no action has been taken that could be the basis of a cure at this point. Therefore, the City Council and staff would have difficulty in framing an action to meet the cure requirements under the Brown Act as demanded by Attomey Moot in Ilis correspondence. enclosed as Attachment "B." Public disclosure of potential settlement negotiations is considered a reason for not disclosing the name of a case that has actually been filed. The authors of the Brown Act reahzed the sensitivity of settlement negotiatlOns and the impact the glare of publicity may have on those negotiations. Considering the CUlTellt status of those negotiations, it is not recommended that a cure be sought at this time. First, no final decision has been rendered upon which a cure can be crafted. Second, the underlying reasoning of the Brown Act of the settlement negotiations could be impacted by adverse publicity would give jLLstification not to proceed to a cure at this point. CONCLUSIOI\ The CU[Tent status of this panicular negotiation ma,kes it difficult to follow the n011l1al practice of seekll1g a cure at this time Nomlally, this office advises that no ham1 can be done in seeking a cure, even ifan action ,vas taken in full compliance of the Brown Act. This situation seems to be unique in that seeking a cure at this pomt could jeopardize settlement negotiations and also not solve the problem since no final action has been taken. The dlscussions in closed session have been properly noticed under the appropriate subsection as required by the Brown Act. The discussions in those sessions have related directly to the threat of litigation received from the attol11ey for Councilmember Castaneda. Councilmember Castaneda's attorney has threatened litigation if this matter is not resolved. Such a threat. as always, is needed to go to closed session and seek counsel advice and wisdom as to how to handle the tlu'eat in questions. If you have any questions reg~rding the above-mentioned matters, please feel free to contact the undersigned. . Yours very truly, James P. Lough, Special Counsel 7-14 . CAPITOL WEEKLyra~~-L :m: IHt: NfWSPA1'I:R O~. ~:~lll{)ANI.~ (iOvEAff,\lt:Nl Atl() 1"Ol,ltl(;,\ Perata says state may face 'another $15 billion to $18 billion deficit' By Anthon\' York (published Tuesday. Oc{oher 07. 2{)()S) Gov. Arnold Schwarzencgger willmcet with legislative leaders Wednesday to try to find ways to till an immediate hole in this year's budget that could be as large as $5 billion, according to estimates from Senate Leader Don Perata, D-Oakland. Pcrata said the detieit could swell to $15 billion or more by the middle of next year. The bleak outlook comes amid a weakening state economy and an unprecedented meltdown on Wall Street, which has pinched corporate and municipal credit. "The options arc all bad," Perata said Wednesday. "I am not very optimistic we will gct a tax increase," which means there could be more cuts to state health services and education, he added. The talk is also sure to revive some "revenue acceleration" options that were rejected by Democrats in the round of budget talks that wrapped up less than three weeks ago. But legislative sources in both parties said discussion of accelerating collection on individual taxpayers' withholding payments would not be on the table. ;;;;lfDemocrats think this reopens the door to tax increases, they~rc wrong," said Jennifer McDaniel, a spokeswoman for Assembly Republican Leader Mike Villines, R-Clovis. While she did not say whether or not her boss supports reconvening the Legislature in a special session, she did say time is of the essence. "The longer we wait, the more opportunitics are missed for savings" through spending ClIts, she said. The shortfall in state budget revenues stems from the weakening economy, both in the state and nationally, in the wake of a persistent housing slump and general economic slowdown. The gap is also attributable to overly optimistic revenue projections made by state budget makers. And Perata said the outlook for next year is even worse. "I think we're heading into another year of $15 billion to $18 billion deficits," he said, looking ahead to the 2009-10 budget year, which begins next July I. While the state wrestles with lower than expected income into state eotfers, it is also being hit by the Wall Street credit crunch. Last wcek, Gov. Sehwarzenegger sent a letter to Treasury Sccrctary Henry Paulson warning the state may necd assistance securing $7 billion in sholi-term loans to cover operating expenses. State treasurer Bill Lockyer said the state could run out of moncy by the end of month if it docs not secure some form of sholi-term loan. Sehwarzenegger spokesman Aaron McLear said these typcs of short-term loans arc commonplace, and that the state routinely relies on bridge loans to ovcrcome the uneven cycle of statc payments and income flow. "These types of revenue anticipation loans are very common," he said. "Sut we may not be able to secure it through Wall Street," because of the virtual credit ti'eeze, he said. Sen. Dean Florez, D-Shafter, sent a letter to Lockyer this week, suggesting the state look beyond the federal government for help with the short-term cash crisis. "The state should look to one of the world's largest investors, thc California Public Employee Retirement System, as a reasonable purchaser of short-term California state debt," he wrote. That idea was rejected by Perata, who said he does not support effectively borrowing against state employee pensions. "I wouldn't want to do that," said Perata. '''Public employees right now are feeling a lot ofpain.~' The reconvening orthe Big 5 to wrestle with budget issues comes just weeks after Rcpublican Gov. Arnold Schwarzenegger and legislative leaders tinally agreed to a 2008-09 budget, the most overdue spending plan in the state's history. Now, the governor and the four leaders of the Legislature - Senate Leader Don Perata and Assembly Speaker Karen Bass, both Democrats; and Senate Gal' Leader Dave Cogdill and Assembly Republican Leader Mike Villines - arc poised to meet Wednesday anernoon to talk options. McLear said representatives from the Department of Finance and the state treasurer's office would also be at the 2 p.m. meeting Wednesday.