No preview available
HomeMy WebLinkAboutDecember 2,2008City of Arcadia Office of the City Clerk Jim Barrows City Clerk NOTICE OF SPECIAL MEETING As authorized by California Government Code Section 54956 and Arcadia City Charter Section 408, a Special Meeting of the Arcadia City Council /Redevelopment Agency is hereby called to be held at the City of Arcadia Council Chamber Conference Room, 240 W. Huntington Drive, Arcadia, California at 5:30 p.m. on Tuesday, December 2. 2008. At this Special Meeting, the following matters will be discussed, considered and acted upon: STUDY SESSION Report, discussion and direction concerning recent court developments regarding Utilities Users Tax issues. Report, discussion and direction regarding closure of certain City Hall facilities on Friday, December 26, 2008. CLOSED SESSION Pursuant to Government Code Section 54956(a) to confer with legal counsel regarding the case of Westfield. LLC, et al. v. City of Arcadia, et al. and Caruso Property Management. Inc. et al. (Real Parties in Interest) (Los Angeles Superior Court Case No. BS108923) and the case of Arcadia First! v. City of Arcadia and Magna Entertainment Corporation (Real Parties in Interest) (Los Angeles Superior Court Case No. BS108937). Prior to going into closed session, there will be time reserved for those who wish to address the City Council /Redevelopment Agency regarding the above items. No further business other than the above will be considered at this meeting. Dated: November 26, 2008 Mayor of the City of Arcadia 240 West Huntington Drive Post Office Box 60021 Arcadia, CA 91066 -6021 (626) 574 -5455 (626) 447 -7524 Fax Pursuant to the Americans with Disabilities Act, persons with a disability who require a disability related modification or accommodation in orderto participate in a meeting, including auxiliary aids or services, may request such modification or accommodation from the City Clerk at (626) 574 -5455. Notification 48 hours prior to the meeting will enable the City to make reasonable arrangements to assure accessibility to the meeting. FA CITY OF ARCADIA Gn LJF0 q,� CITY COUNCIL /REDEVELOPMENT AGENCY REGULAR MEETING ��` °+ F ° "` °m• TUESDAY, DECEMBER 2, 2008 AGENDA 7:00 p.m. Location: City Council Chamber, 240 W. Huntington Drive CALL TO ORDER INVOCATION PLEDGE OF ALLEGIANCE Tony Trabbie, Fire Chief ROLL CALL OF CITY COUNCIL /REDEVELOPMENT AGENCY MEMBERS: Robert Harbicht, Mayor /Agency Chair John Wuo, Mayor Pro Tem /Agency Vice Chair Peter Amundson, Council /Agency Member Roger Chandler, Council /Agency Member Gary Kovacic, Council /Agency Member REPORT FROM CITY ATTORNEY /AGENCY COUNSEL ON STUDY SESSION /CLOSED SESSION ITEMS SUPPLEMENTAL INFORMATION FROM CITY MANAGER /EXECUTIVE DIRECTOR REGARDING AGENDA ITEMS MOTION TO READ ALL ORDINANCES AND RESOLUTIONS BY TITLE ONLY AND WAIVE THE READING IN FULL PRESENTATIONS a. Presentation of "A Day without a Plastic Bag" proclamation to Heal the Bay PUBLIC HEARING All interested persons are invited to appear at the Public Hearing and to provide evidence or testimony concerning the proposed items of consideration. You are hereby advised that should you desire to legally challenge any action taken by the City Council with respect to any Public Hearing item on this agenda, you may be limited to raising only those issues and objections which you or someone else raised at or prior to the time of the Public Hearing. Any writings or documents provided to a majority of the City Council regarding any item on this agenda will be made available for public inspection in the City Clerk's office located at 240 W. Huntington Drive, Arcadia, California, during normal business hours. REDEVELOPMENT AGENCY ITEMS: Consideration of short term leases with Rusnak Mercedes -Benz for the properties at 35 West Huntington Drive (Arcadia Self Storage). and 21 Morlan Place (Church of Arcadia) authorization for the Executive Director to execute the Recommended Action: Approve CITY COUNCIL ITEMS: Consideration of an appeal of Business License revocation for Alpha Systems, Inc. for code violations in the installation and maintenance of Commercial Kitchen Fire Suppression Systems at restaurants in Arcadia. Recommended Action: Deny appeal and uphold revocation PUBLIC COMMENTS (5 minutes per person) Any person wishing to address the City Council /Redevelopment Agency during the Public Comments period is asked to complete a "Public Comments" card available in the Council Chamber Lobby. The completed form should be submitted to the City Clerk /Agency Secretary prior to the start of the 7:00 p.m. Open Session. In order to conduct a timely meeting, there will be a five (5) minute time limit per person. All comments are to be directed to the City Council /Redevelopment Agency and we ask that proper decorum be practiced during the meeting. State law prohibits the City Council /Redevelopment Agency from discussing topics or issues unless they appear on the posted Agenda. REPORTS FROM MAYOR, CITY COUNCIL AND CITY CLERK 2. CITY CLERK'S REPORTS a. Appointment to Human Resources Commission. Recommended Action: Make appointment to fill unexpired term. 3. CONSENT CALENDAR All matters listed under the Consent Calendar are considered to be routine and can be acted on by one roll call vote. There will be no separate discussion of these items unless members of the City Council /Redevelopment Agency request specific items be removed from the Consent Calendar for separate action. REDEVELOPMENT AGENCY ITEMS: a. Approve the Regular Meeting Minutes of November 18, 2008. Recommended Action: Approve CITY COUNCIL ITEMS: b. AAoproye the Regular Meeting Minutes of November 18, 2008. Recommended Action: Approve Any writings or documents provided to a majority of the City Council regarding any item on this agenda will be made available for public inspection in the City Clerk's office located at 240 W. Huntington Drive, Arcadia, California, during normal business hours. C. Approve the renewal of the Weed Abatement Services agreement between the Recommended Action: Approve d. Adopt Resolution No. 6654 approving the Identity Theft Prevention Program in accordance with the Fair and Accurate Credit Transaction Act of 2003. Recommended Action: Adopt e. Recommended Action: Adopt Services in the amount not to exceed $65.000. Recommended Action: Approve 4. CITY MANAGERIEXECUTIVE DIRECTOR a. Adopt Resolution No. 6661 declarina the results of the Dropertv owner protest ballot proceedings conducted for the proposed levy of assessments related to the Arcadia Citywide Street Lighting District 2009 -1 commencing in Fiscal Year 2009 -2010. Recommended Action: Adopt b. Resolutions and Ordinances rescinding proiect approvals relating to "The Shops at Santa Anita Park ". Adopt Resolution No. 6658 decertifvina the final Environmental Impact Report for The Shoos at Santa Anita Park Specific Plan Project and repealing adoption of Resolution No. 6564 which concerned environmental findings pursuant to the California Environmental Quality Act, Statement of Overridina Considerations, and a Mitigation Monitoring and Reporting Program Recommended Action: Adopt Adopt Resolution No. 6659 repealing Resolution No. 6565 which concerned General Plan Amendment No. 05 -01 pertaining to "The Shops at Santa Anita Park Specific Plan ". Recommended Action: Adopt Introduce Ordinance No. 2252 repealing Ordinance No. 2228 which concerned a Develooment Agreement between the City of Arcadia and Santa Anita Associates, LLC. Recommended Action: Introduce Introduce Ordinance No. 2253 repealing Ordinance No. 2226 which concerned the adoption of "The Shops at Santa Anita Park Specific Plan ". Recommended Action: Introduce Any writings or documents provided to a majority of the City Council regarding any item on this agenda will be made available for public inspection in the City Clerk's office located at 240 W. Huntington Drive, Arcadia, California, during normal business hours. Recommended Action: Adopt Recommended Action: Introduce ADJOURNMENT The City Council /Redevelopment Agency will adjourn this meeting to Tuesday, December 16, 2008, 6:00 p.m. in the City Council Chamber Conference Room located at 240 W. Huntington Drive, Arcadia. Pursuant to the Americans with Disabilities Act, persons with a disability who require a disability related modification or accommodation in order to participate in a meeting, including auxiliary aids or services, may request such modification or accommodation from the City Clerk at (626) 574 -5455. Notification 48 hours prior to the meeting will enable the City to make reasonable arrangements to assure accessibility to the meeting. Any writings or documents provided to a majority of the City Council regarding any item on this agenda will be made available for public inspection in the City Clerk's office located at 240 W. Huntington Drive, Arcadia, California, during normal business hours. � ... MEMORANDUM Office of the City Attorney DATE: January 29, 2008 TO: DON PENMAN, CITY MANAGER /� p FROM: STEPHEN P. DEITSCH, CITY ATTORNEY APLA 3 G SUBJECT: CORRECTIVE AMENDMENTS TO UTILITY USER'S TAX ORDINANCE AND ELECTIONS PROCEDURES TO MAKE CORRECTIONS BACKGROUND Various legal vulnerabilities exist in the City's Utility User's Tax ( "UUT ") Ordinance which may adversely affect the City's ability to collect UUT revenues on telephone /telecommunications (Arcadia Municipal Code, Section 2671). This Memorandum is an outline of these vulnerabilities, a proposal of corrective action, and explanation of the procedure by which this corrective action may be taken in light of California Proposition 218. We believe that an amendment to Arcadia's UUT ordinance should be submitted to the voters. These vulnerabilities are not unique to Arcadia. Many California cities face the same issues due to the fact that Telecom technology is advancing at breakneck speed, while the law has had difficulty keeping pace. As a result, many cities' Telecom UUT provisions are quickly becoming outdated and Telecom companies are now seizing upon this (through litigation) to seek Telecom UUT refunds and to avoid paying future Telecom UUT. These lawsuits may result in a steady erosion of Arcadia's ability to collect future Telecom UUT. As a final note, this Memorandum is focused exclusively on Telecom WT. Electricity, water and gas have not undergone the technological revolution that Telecom has and, therefore, Arcadia's UUT ordinance is legally sufficient on these issues. That being said, during FY 05 -06, approximately $150,000 of the City's UUT revenue came from Telecom The percentage of wireless service users is increasing rapidly, at approximately 3 -5% per year. By some estimates, wireless Telecom will become nearly the exclusive source of Telecom UUT revenue within 10 to 15 years. Therefore, a partial 'Tile total revenue generated from WT was approximately $5.3 million, inclusive of all categories of UUT. or total loss of ability to tax Telecom, especially wireless service, could have a significant impact upon the City's revenues, now and into the future. ISSUES PRESENTED The goal of this Memorandum is to (1) explain potential legal vulnerabilities that are contained in Arcadia's current Telecom UUT ordinance, (2) provide suggested amendments to the Telecom UUT Ordinance to eliminate these vulnerabilities, (3) analyze whether these suggested amendments must be approved by the voters pursuant to Proposition 218, and (4) assuming that Proposition 218 applies, to give a very basic outline of the election procedure. ANALYSIS Legal Vulnerabilities and Corrective Amendments Vulnerability #1 - IRS Notice re: Federal Excise Tax (FET) Arcadia Municipal Code, Section 267l(a) imposes a 5% UUT telecommunication services, as follows: "... every person in the City, using intrastate, interstate and international communication services, including cellular telephone services and the telephone services that gain access to the Public Switched Network (PSN), by means of various technologies, by every person in the City using such services..." Arcadia Municipal Code, Section 2671(d) contains a key exception to the application of the telephone tax. It states as follows: [T]he tax imposed under subsection (a), above, shall not be imposed upon any person for using telephone communication services to the extent that, pursuant to Sections 4252(d) and 4253 of the Internal Revenue Code, or Division 2, Part 20 of the California Revenue and Taxation Code, the amounts paid for such communications services are not subject to or are exempt from the tax imposed under Section 4251 of the Internal Revenue Code or under the California Revenue and Taxation Code. Internal Revenue Code, Section 4251 imposes the 3% Federal Excise Tax (PET) on "communications services ". "Communications services" are defined as local telephone service, toll telephone service; and teletypewriter exchange service. Under Section 4252(b)(1), toll telephone service is defined as "a telephonic quality communication for which (A) there is a toll charge which varies in amount with the distance and elapsed -2- transmission time of each individual communication and (B) the charge is paid within the United States." Multiple lawsuits were filed by Telecom providers throughout the United States claiming that the FET was no longer applicable to their long distance toll telephone customers because their charges were based solely upon elapsed time. The Telecom companies seized upon the fact that Section 4252's definition of "toll telephone service" is an anachronism that hasn't been updated since 1970. As of 1970, many telephone customers still paid their long distance bill based upon time and distance; distance being calculated based upon what "toll zone" the customer called. However, long distance telephone charges haven't been calculated this way in at least 25 years. As a result, no less than five Federal Courts of Appeal concluded over the last three years that the IRS may no longer impose the FET on long distance telephone service based solely upon elapsed time. In response to these multiple rulings, the IRS in May, 2006 issued an Administrative Notice stating that, as of August 1, 2006, it would no longer collect the FET on time -only long distance telephone service Because virtually every Telecom provider bills long distance telephone service on elapsed time only, this appears to effectively spell the end of FET collection on this type of service. How the IRS Notice affects a California city's ability to collect UUT on time -only long distance service is the subject three pending class- action lawsuits filed against the County of Los Angeles, City of Los Angeles and City of Long Beach. At present, this office has taken the position that, although the FET exemption is referenced in our client cities' ordinances, the FET and UUT are not precisely the same and there are, to date, no binding Court decisions that declare them to be the same. , As a result, when our client cities have received "request for clarification" letters from Telecom companies on this issue, we have instructed the Telecom companies to continue collecting and remitting Telecom WT until further notice. For the moment, the Telecom companies have complied with this instruction. From their perspective, it is better to keep collecting UUT and request a refund if these lawsuits ultimately go in their favor, rather than to stop collecting, these lawsuits go against them, and they will have hundreds of millions of dollars of back UUT debt to pay to cities and counties. ' American Bankers Insurance Group v. United States, 408 F.3d 1328 (11 Cir., 2005); OfjiceMax, Inc., v. United States, 428 F.3d 538 (6" Cir., 2005); Nat'l R.R. Passenger Corp. v. United States, 431 F.3d 374 (D.C. Cir., 2005); Fortis v. United States, 447 F.3d 190 (2d Cir., 2006); Reese Bros. v. United States, 447 F.3d 229 (3d Cir., 2006) 3 IRS Notice No. 2006 -50 (May 31, 2006) ° Of course, Congress could amend Federal law to apply the FET to time -only telecommunications. However, Congress appears to be moving in the opposite direction. A bill to totally repeal the FET on telecommunications services is pending in Committee —H.R. 1898 (109'' Cong., Apr. 27, 2005). ' Last year, there was a lawsuit filed by Verizon Wireless against the City of Palo Alto which, among other things, involved the same FET issue. However, that case has since settled. -3- However, this has been only a temporary course of action. Ultimately, these cases will be decided or settled. If the cases are decided in favor of the Cities and County, then this issue will no longer be a vulnerability. However, to be frank, most specialists believe that if the case is finally decided, it will likely go against the Cities and County. Buoyed by such a decision, the Telecom companies will then likely serve a large number of UUT refund claims upon cities and counties as well as send letters indicating that they will no longer collect UUT on long distance service in the future. Arcadia would be no exception. The other very likely possibility is that these lawsuits may settle, as occurred in Palo Alto, leaving no clear Court guidance on this issue. At present, we understand that these three lawsuits are moving forward to discovery. Even if these cases settle, the legal vulnerability remains and the Telecom companies will likely focus their litigation efforts toward other California cities. Ultimately, the worst -case scenario is an adverse ruling in any of these lawsuits and all long distance telecommunications being rendered exempt from UUT. Such an adverse ruling would affect both wired and wireless long distance service. So, this could result in a loss of up to 75% of the City's total Telecom UUT. Based on the Arcadia Municipal Code sections 1900 and 1904, a claim for a refund of overpaid taxes must be made within one year of the date of accrual of the claim. In other words, a claimant can request a refund for as far back as one year prior to the filing of a timely claim with the City. How to Fix Vulnerability #1 The "fix" is not very difficult. It would involve amending Arcadia's UUT Ordinance to remove all references to FET exemptions. If directed to do so, we could craft the appropriate amendatory language in short order. But the amendments would like have to be approved by the voters under Proposition 218. (See below) Vulnerability 42 — Inadequate Definitions {Clarifications Vulnerability #1 stems from outdated definitions and terminology. As indicated above, the Telecom market is evolving at an astonishing rate and the law has had a difficult time keeping pace. New technologies such as Voice -over Internet Protocol (VoIP), Digital Subscriber Line (DSL), Wi -Fi, Broadband, etc. do not fit neatly within Arcadia's current ordinance definitions. Further, the phenomenon of "technology convergence" is quickly blurring the lines between what constitutes "telephone communications ", data transfer, video transmission, etc. This will undoubtedly create legal ambiguities that Telecom companies may be able to exploit in order to erode the City's UUT collection efforts. Under the current ordinance, there is no definition of "telephone communication services" or "communication services." Arcadia Municipal Code Section 2671(a) refers to "cellular telephone services and the telephone services that gain access to the Public Switched Network" but provides no definition of those terms. How to Fix Vulnerability #2 The Council should adopt a broad definition of "telephone communication services." New technologies continue to emerge that may soon render even the City's updated definitions obsolete. This could create ambiguities and opportunities for Telecom companies to avoid taxation. Ideally, we would propose an amendment that would include the absolute broadest possible definition of "telephone communications service ", factoring in what technologies we know exist and which we can reasonably speculate will exist in the near future. Our office can provide further proposed language if the City decides to pursue this direction. Do The Proposed "Fixes" Require a Proposition 218 Election? Most likely, Yes. Proposition 218 requires voter approval prior to any increase in an existing tax. A tax is "increased" if the City either "(1) increases any applicable rate use to calculate the tax; or (2) revises the methodology by which the tax is calculated if that revision results in an increased amount being levied on any person or parcel." Govt. Code, Section 53750(h)(1). There is no tax "increase" if the City "implements or collects a previously approved tax... so long as the rate is not increased beyond the level previously approved by the [City], and the methodology previously approved by the [City] is not revised so as to result in an increase in the amount being levied on any person or parcel." Govt. Code, Section 53750(h)(2)(b). Although the proposed "fixes" described above do not increase the Telecom UUT rate in any way, there is an argument that they constitute a revision of the methodology by which the UUT is calculated. For example, in Arcadia's ordinance, there is an explicit exception from payment of the UUT if the Telecom service is exempt from taxation under the FET law. Therefore, as of the IRS' Ruling on August 1, 2006, a Telecom company may argue that it is exempt from paying Telecom UUT on time -only long distance service — this is the subject of the three active lawsuits mentioned above. Further, to remove this exception would, arguably, subject Telecom companies to a tax that, technically, they might no longer be liable to pay. As noted above, the plaintiffs in the City of Long Beach case have argued precisely this point — that the City's 2006 amendment to its Municipal Code which eliminated all references to the FET exemption constituted a change in methodology resulting in higher taxes. As such, they contend that such an amendment was invalid because it was not approved by the voters as required by Proposition 218. -5- On the other hand, the City of Long Beach contends that these "fixes" merely result in continuing to tax the same services that were taxed beforehand and, therefore, there is no change to the tax methodology requiring a Proposition 218 vote. Rather, these "fixes" merely adjust the technical language of the ordinance to account for 21" Century technology. However, the intent of the ordinance has never changed — to tax Telecom. It is uncertain how the Long Beach Court will rule on this issue. However, the recent ruling by the California Court of Appeal in AB Cellular (Verizon) v. City of Los Angeles (Second District, Case No. B185373) certainly gives this office pause. In the mid- 1990's the City of Los Angeles entered into a temporary agreement with AT &T Wireless whereby AT &T would not be required to pay UUT on the "airtime" portion of the customer's bill, which constitutes the bulk of UUT on a cellular bill. The reason the City entered into such an agreement was that, at the time, the law was unclear as to how the "airtime" portion of a cellular phone call was to be taxed. Because many cellular calls of Los Angeles residents neither originated nor terminated in the City of Los Angeles, the Telecom companies threatened to file lawsuits against the City on grounds that the City did not have the required Constitutional "nexus" to attach its WT to these types of calls. Once again, this was a classic example of the technology outpacing the law. However, in 2000, Congress passed the Mobile Telecommunications Sourcing Act, which permitted the UUT to be collected upon a cell phone customer's "place of primary use ". With the legal issue settled by Congress, Los Angeles informed the Telecom companies in early 2002 that its temporary agreement was ended and that they must resume full payment of the LUT. The Telecom companies then filed a lawsuit on grounds that rescinding a temporary administrative decision to not collect UUT requires a Proposition 218 election because it constitutes a change in taxing "methodology". This is ironic in that the temporary agreement was intended to avoid litigation. More surprising is that the Court of Appeal ruled in Verizon's favor! It is unknown at this time if the matter will be heard by the California Supreme Court. Although the AB Cellular v. City of Los Angeles case has unique facts that do not pertain directly to Arcadia, it does cause this office concern about making "fixes" to Arcadia's WT ordinance without an election. It also calls into question some of the "fixes" the Council made back in 2005. If the Court of Appeal could determine that Los Angeles' mere reversal of a temporary administrative ruling requires a Proposition 218 vote, it could easily find that a permanent amendment to the City's Municipal Code which removes explicit exceptions to taxation would require a vote. Therefore, given the UUT litigation climate in California, we believe that the safest course of action would be to take the "fixes" proposed in the Memorandum to the voters for approval. The League of California Cities also advocates this position. 6 League of California Cities; Letter to California City Attorneys, June 27, 2006; Re: Federal Excise Tax Announcement and Utility Users Tax — Possible Action Required. a� How Mav the Citv- Council Calla UUT Election If the City Council decides to call a Proposition 218 Election for a UUT Ordinance amendment, it may do so in one of two ways, by general election or special election. General Election Option To place a WT ordinance amendment on the April 2010 General Election (the next available Arcadia General Election), the City need only adopt a resolution, by majority vote, placing the measure on the ballot, as authorized by Elections Code §9222. The resolution must be adopted not later than 88 days prior to the General Election date. After calling the election, the City Attorney's Office is required to prepare an impartial analysis of the measure. (Elections Code §9280) Proponents and opponents may submit arguments in favor and against the measure (Elections Code §§ 9219 and 9220). The Election is then conducted like any other initiative measure pursuant to Elections Code procedures. The benefit of waiting to place this matter on the General Election is primarily cost. Since the City will have already budgeted for General Election costs in FY 2008 -2009, there will be far less additional cost in staff time or materials to simply add a local measure to the ballot. Arcadia's next General Election is set to be held on April 8, 2008. Therefore, the City Council would have had to adopt a resolution no later than January 11, 2008 to have placed on the April 8, 2008 ballot a measure calling for an amendment to the UUT ordinance. Special Election Option On the other hand, if the City Council wishes to call a special election on the UUT measure, there is one additional procedure that needs to be followed in order to comply with Proposition 218. Proposition 218 provides the following: ". The election required by this subdivision [general taxes] shall be consolidated with a regularly scheduled general election for members of the governing body of the local government, except in cases of emer enc declared by a unanimous vote of the governing body (Calif. Const. Art. XIIID, §2(b)) Therefore, to call a special UUT election, Proposition 218 requires that the City Council adopt a declaration of emergency by unanimous vote ( "Declaration ") on the same evening that the Council adopts the resolution calling the special election However, ' This rule may not apply if the LJUT measure were placed on the ballot by the voters through a petition- driven initiative. However, this is beyond the scope of this Memorandum If staff believes this to be a possibility, we can p repare a supplemental memorandum outlining the differences. - There is no such requirement for the adoption of special taxes. As long as Elections Code procedures are followed for calling a special election, the Council may do so for special taxes. However, this would require converting the WT into a special tax and would require two- thirds (2/3) voter approval. (Calif. Const. Art. XIIID, §2(d)) 7- there is no definition of "emergency" under Proposition 218. Given this, if the Council were inclined to call a special election, we believe detailed findings should be prepared outlining pending litigation, legislation and other risks to the Telecom UUT and the serious financial effects such legal changes will have on the City's revenues. The more detailed the findings are, the more we believe a Court would defer to the Council's legislative discretion and uphold such findings. The City of Pasadena, for example, deemed it an emergency to hold its election in February 2008 to preserve the tax before it is negatively impacted by court rulings that may emerge in Spring 2008. The benefit of calling a special election is that the "fixes" to the UUT Ordinance could be approved earlier than April, 2010 and, more importantly, prior to any adverse court rulings or legislation which could negatively affect the City's Telecom UUT revenue. Another benefit is that the UUT measure wouldn't become an issue for Council elections. The one big negative, of course, is cost. A special election for a city the size of Arcadia may be costly, especially counting election consultant costs — none of which would be part of the normal budget. Therefore, given the political sensitivity of incurring special election costs and local tax measures in general, obtaining unanimous approval of the Council may not be a certain proposition. Before taking this issue to Council, Staff will have to better understand whether the political support for a Proposition 218 Emergency Declaration exists or not. A special election on the UUT measure can be consolidated with another election of another governmental entity (such as the County or State), provided that the elections procedures found at Sections 10400 et seq. of the Elections Code are followed. Consolidation will likely reduce the costs of a special election called by the City. CONCLUSION /COURSES OF ACTION Overall, the City of Arcadia's current UUT ordinance has various outdated terms and other legal ambiguities that may leave the City vulnerable to legal challenge, resulting in the loss of potential Telecom UUT revenues going forward. However, it seems clear to this office that they only sure way to incorporate these amendments is through voter approval pursuant to Proposition 218. Therefore, the City Council should consider the following: 1. Include all of the "fixes" identified above and place the matter before the voters at a Special Election at the soonest opportunity. If the "fixes" are approved by the voters, the vulnerabilities are gone. However, as mentioned above, the Council will have to unanimously adopt the "declaration of emergency" in order to call a special election on a general tax, such as the UUT. There may be political issues involved in securing this unanimous vote of the Council. M 2. Proceed with making the "fixes ", but through adoption of a standard ordinance — no election. The City would then take the position that the "fixes" were not a change in methodology and, therefore, a Prop. 218 election was not necessary. This may, however, be challenged by the Telecom companies, especially given the recent ruling in the AB Cellular v. City of Los Angeles case. If challenged, the Council can then decide to either (i) take the "fixes" to an election, (ii) litigate any challenge in court, or (iii) search for an alternative source of revenue assuming some loss of Telecom UUT. 3. Do nothing and take a "wait and see" approach to the pending litigation and legislation. If adverse court precedent or legislation is likely to arise, the Council can then proceed to either (i) include the remaining "fixes" at that time, either through a standard ordinance or through a Proposition 218 election or (ii) (iii) search for an alternative source of revenue assuming some loss of Telecom UUT. OUTLINE OF ISSUES - UTILITY USER'S TAX 1.) Why are we discussing this now? Litigation threat to Telecom UUT — urgent! — Could result in decisions as early as Spring, 2009. Adverse ruling could put all long distance Telecom UUT revenue at risk. Loss of — 5750,000 per year. Federal Excise Tax (FET) Exemption "Land Mobile" Exemption The fix: Amendment to Section 2671 of UUT Code to remove these outdated exemptions. PROP. 218 VOTE REQUIRED General/Legislative threat to Telecom UUT — critical to deal with now! — Outdated Telecom UUT language (last amended in 1993) cannot handle emerging technologies like Internet phone, text messaging, etc. = Lots of new potential loopholes to avoid paying Telecom UUT. "Land lines" end up paying more than newer technologies — Tax fairness issue. Loopholes could result in new litigation (like with the FET exemption). HR 5793 — "Cell Tax Fairness Act' - Federal 5 year moratorium on new wireless taxes. A modern voter - approved ordinance will avoid moratorium. The fix: Amendments to Telecom sections of UUT Code and some related sections (ie: definitions, bundling rules, nexus to tax, etc.) to update language for 21" Century. PROP. 218 VOTE REQUIRED Other Outdated Exemptions from UUT — important to deal with now — • Outdated exemptions from payment of UUT should be revised o "Head of household" exemption — current language in the ordinance does not clearly define how this tax filing status should be exempt from the City's UUT. • Exemptions that appears OK for now - low income exemption. The fix: Amendments to Section 2672.1 of UUT Code (Exemptions) to update language. PROP. 218 VOTE REQUIRED Outdated Gas, Electric and Water WT provisions — not urgently needed right now, but an area to consider. Changes are slowly occurring in this area from environmentally friendly technology. Gas, electric and water have not evolved like Telecom, but outdated language is starting to create loophole problems (ie: UUT on solar /electric power) The fix: Amendments to gas, water and electric sections of UUT Code to update this language. PROP. 218 VOTE REQUIRED ORANGE\ W PRIESIW508.1 Outdated Procedural Rules — nice to do now, but can get to this later — outdated administrative provisions (ie: ban on class action filings, administrative rulings, refunds, etc.) not up to 21" Century standards. The fix: Amendments to administrative provisions in UUT Code to update language. PROP. 218 VOTE NOT REQUIRED 2.) Action Options (minimum to maximum) • Amend Telecom provisions only (remove FET /Land Mobile exemptions and update Telecom language). • Amend Telecom and substantive exemptions (ie: head of household "). • Amend Telecom provisions and substantive exemptions, as well as UUT provisions for other utilities (gas, electric and water). Exempt solar? • Amend the entire UUT ordinance, including clean -up language. • Lower current rate after telecom language modification? Removal of "suspensions "? Is it within grandfathered 7% rate structure ?. 3.) Special Election Issues • Recent results in other cities. • Council may call a Special Election anytime in 2009 by unanimous resolution 88 adopted days before election date. Must also make special Prop. 218 emergency findings (ie: litigation threat). • Consolidate with Arcadia USD Election? - April 21, 2009. Deadline to call = January 20, 2009 Council meeting. • Other election dates? • Cost Issues? Retain an election consultant? 4.) Other Issues • Form a subcommittee? ORANGEMPRIES'P552508.1 STAFF REPORT Arcadia Redevelopment Agency December 2, 2008 To: Chairman and Redevelopment Agency Board From: Jason Kruckeberg, Development Services Director3I-K By: Jerry Schwartz, Economic Development Managerj'AS Subject: Authorize the Executive Director to execute short term leases with Rusnak/Arcadia for properties at 35 West Huntington Drive and 21 Morlan Place subject to renegotiation or technical changes required to complete the transactions and adopt a categorical exemption from CEQA regarding the leases Recommendation: Approve SUMMARY The Redevelopment Agency Board has been working with Rusnak/Arcadia to facilitate the expansion of its Mercedes -Benz dealership onto neighboring properties. The dealership desires to utilize two sites owned by the Agency to grow its business. The properties, 35 West Huntington Drive (Arcadia Self Storage) and 21 Morlan Place (Church in Arcadia), were purchased by the Agency for the Rusnak/Arcadia expansion. Short term leases for these sites have been prepared and reviewed by both parties. BACKGROUND In 2004, the Agency entered into a Land Assembly and Development Agreement ( "LADA ") with the Rusnak/Arcadia Mercedes -Benz Automobile Dealership to assemble five parcels nearby the dealership site located at 55 West Huntington Drive. The Agency acquired the sites at 35 West Huntington Drive (Arcadia Self Storage) in 2006 and 21 Morlan Place (Church in Arcadia) in 2008 to facilitate the expansion of the dealership. DISCUSSION Recently, Rusnak/Arcadia expressed an interest in utilizing two floors of the Arcadia Self Storage building for parts storage and the Church property for auto storage and parking. These two properties will allow the dealership to expand its parts and service Chairman and Redevelopment Agency Board December 2, 2008 Page 2 business at its Arcadia location. After discussions with the Rusnak/Arcadia General Manager, the parties agreed to a deal point letter that created the framework for the leases. Based on the letter, the City Attorney's Office prepared short term leases for Rusnak/Arcadia to lease the two properties and utilize them to expand its business in the City. Agency staff and its consultant relocated 46 Self Storage tenants from the basement and first floor to accommodate the space needs of Rusnak/Arcadia. Likewise, staff is working with the Church in Arcadia to relocate them temporarily while a new facility is constructed at 630 East Live Oak Avenue. This would allow Rusnak to have unfettered access to the 21 Morlan Place property. The lease for 35 West Huntington Drive is for two years with an option to extend for one additional year. Rusnak/Arcadia will pay a rental rate of 20 cents per square foot for the 8,441 square feet it will occupy on the basement and first floor, for a monthly rent of $1,688.20. The lease includes a four month rent credit to offset the investment by Rusnak/Arcadia for tenant improvements and moving the parts storage component of its business, which is significant. Additionally, the Agency will provide a rent credit of up to $5,000 in the second year of the lease based on evidence to be provided by Rusnak/Arcadia of the growth in taxable parts sales that has generated and increased sales tax revenues to the City from the expansion of the parts department at Rusnak/Arcadia. The lease for 21 Morlan Place is month -to- month, with Rusnak/Arcadia paying $1,000 per month in rent. The lease includes a four month rent credit to offset the cost of tenant improvements. Additionally, Rusnak/Arcadia will accommodate the Church's activities by vacating the parking lot for the Sunday morning service and meeting, and for any evening meetings held by the Church leadership. If the Agency is able to arrange a temporary location for the Church and demolishes the existing building, Rusnak/Arcadia and the Agency agree to negotiate a longer lease for this property. The uses proposed by Rusnak/Arcadia on both sites have been approved. On September 16, the Agency approved a waiver of ARA Resolution No.172 to allow the auto parts storage at 35 West Huntington Drive. On September 23, the Planning Commission approved a Conditional Use Permit to allow vehicle storage at 21 Morlan Place and it made a determination of use and General Plan consistency regarding the parts storage at 35 West Huntington Drive. This item must be considered pursuant to a public hearing under Section 33431 of the Health and Safety Code, which provides that any lease made by the Agency to another party without public bidding can only be approved following a public hearing, with notice provided once per week for two weeks. For the purpose of this hearing, notice was published in the Arcadia Weekly on November 17 and November 24, 2008. Chairman and Redevelopment Agency Board December 2, 2008 Page 3 CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA) This project is categorically exempt from CEQA under Section 15301(a) (Class 1) of the Guidelines, leasing or minor alteration of public structures or facilities. The Agency should find that the project is categorically exempt and that a Notice of Exemption should be filed with the Los Angeles County Recorder's Office. FISCAL IMPACT The impact to the Redevelopment Agency will be lease revenue of approximately $50,000 over two years for the two properties. Additionally, Rusnak/Arcadia may pay possessory interest taxes on the leased areas, a portion of which would accrue to the Agency. In addition, the expansion of the parts department at Rusnak/Arcadia will have a positive impact on the General Fund since automotive parts are taxable. The General Fund benefit should occur over several years as the parts department continues to grow. RECOMMENDATION That the Redevelopment Agency Board authorize the Executive Director to execute short term leases with Rusnak/Arcadia for properties at 35 West Huntington Drive and 21 Morlan Place subject to renegotiation or technical changes required to complete the transactions and adopt a categorical exemption from CEQA regarding the leases. Approved: , 17m-t-D_ �c �,• •Tey _� Donald Penman, City Manager /Executive Director N O N STAFF REPORT Development Services Department DATE: December 2, 2008 TO: Mayor and City Council FROM: Jason Kruckeberg, Development Services Director SLJG By: Jim Kasama, Community Development Administrator Prepared By: Silva Vergel, Business License Officer SUBJECT: Appeal of business license revocation for Alpha Systems, Inc. for code violations in the installation and maintenance of commercial kitchen fire suppression systems at restaurants in Arcadia. Recommendation: Deny appeal and uphold revocation SUMMARY The Business License office revoked the license for Alpha Systems, Inc. on September 8, 2008, at the request of the Fire Department for non - compliance and repeated violations in the installation and maintenance of commercial kitchen fire suppression systems at restaurants in Arcadia. Mr. Jason Pivnik, owner /operator of Alpha Systems, Inc. filed an appeal of the Business License revocation on September 15, 2008. The Business License Review Board met on September 22, and October 29, 2008, and voted 2 -1 to recommend to the City Council that the revocation of the business license for Alpha Systems Inc. be upheld per Arcadia Municipal Code Section 6216.7. The Board's recommendation is based on a finding that Alpha Systems Inc. has been in violation of the State of California Code of Regulations, Title 19, Section 906. BACKGROUND Per Arcadia Municipal Code Section 6216.7, the Business License Officer can revoke a license when there is a violation of any law(s): 6216.7. REVOCATION. The City License Officer may revoke any business license when the holder has violated any of the conditions of said license, or has violated or permitted to be violated any law or laws of the United States or the State, or any ordinance applicable to the premises where the business covered by said license is conducted, or in connection with said business. Further, a license may be revoked pursuant to the same grounds specified in Section 6216.6 for denial of issuance of a license. The Business License Office revoked the business license for Alpha Systems, Inc. at the request of the Fire Department. The basis for the revocation of Alpha Systems, Inc.'s business license is violations of the California Code of Regulations, Title 19, Section 906, which provides the requirements for the servicing of fixed extinguishing systems. Mr. Pivnik appealed this revocation. The Business License Review Board held a hearing and received testimony from the Fire Department and Mr. Pivnik. At the conclusion of the hearing, the Board voted 2 -1 to recommend to the City Council that the revocation be upheld based on a finding that Alpha Systems, Inc. is in violation of State law. Business License denials or revocations are appealable to the City Council, but any appeal is first reviewed by the Business License Review Board; an advisory body to the City Council on business license denials or revocations. The Board's findings and recommendations are then transmitted to the City Council and the appeal is considered at a public hearing. Arcadia Municipal Code Section 6216.8 is attached as an exhibit. DISCUSSION Alpha Systems, Inc. has had a business license in the City of Arcadia since August 7, 1998. Currently, the business license for Alpha Systems, Inc. is expired as of September 30, 2008. Renewal of the license is pending the outcome of the revocation proceedings. The California Code of Regulations, Title 19, Section 906, provides the requirements for the servicing of engineered and pre - engineered fixed extinguishing systems (please see attached copy for your reference). Section (e) clearly states, "When service or testing and maintenance is performed, the initial date of service or testing and maintenance, the printed name and signature of the person performing or supervising the servicing shall be placed on the tag or label." In September, 2004, several new restaurants were opening and had used Alpha Systems to install their hood suppression systems. The Fire Department discovered a technician with a stack of tags, one of which he was placing on a hood system that was about to be put into service. These tags had been "pre- stamped" with a signaturae in lieu of the Business License Revocation December 2, 2008 Page 2 signature of the service technician, as required by Title 19, 906. The Fire Department verbally informed the technician that the tags are to be signed by the technician on site and should never be pre- signed at the office by the owner. On May 4, 2005, after discovering this illegal practice again, the Fire Department sent a certified letter (see attached Letter #1) to Alpha Systems formally warning them that this practice was to stop immediately. Any further findings would result in a request to have their business license revoked and the issuance of a complaint to the California State Licensing Board. The Fire Department received a letter (Letter #2) back from Alpha Systems indicating they were in receipt of our letter and would immediately change their business practice and comply with the regulations. On August 15, 2006, the Fire Department sent Alpha Systems another letter (see attached Letter #3) indicating that the aforementioned tagging practice was discovered again on a tag dated March 3, 2006. Also, during this time period, Alpha Systems did not have a valid business license. The letter also indicated that the Fire Department had requested that the Business License office no longer issue a business license to Alpha Systems to do work in the city. Alpha Systems requested a meeting to resolve the issue. At the meeting, the Fire Department asked for a list of all businesses in the city serviced by their company. The Fire Department inspected all 13 businesses listed to verify if they had been tagged correctly. Several of the businesses were identified as having illegal tags; Alpha Systems was given a list of these businesses and was told to correct them. The Fire Department then reinspected the businesses to ensure compliance. The Fire Department cancelled the request to revoke Alpha Systems' business license due to their compliance and a business license was issued. In May, 2008, Alpha Systems installed a hood suppression system at Azami Restaurant located at 838 S. Baldwin. The technician attached a tag with the owner's name although the owner was not the one installing or testing the system, again violating Title 19, 906. The Fire Department returned approximately one month later to obtain a photograph of the tag (Photo attached). On August 12, 2008, the Arcadia Fire Department requested that the Business License office revoke immediately and indefinitely the business license of Alpha Systems. On September 8, 2008, the Business License office sent Alpha Systems a certified letter (see attached Letter #4) indicating that their business license to do work in the City of Arcadia had been revoked. The company was informed that they could appeal the decision within five days of the receipt of the notice. Business License Revocation December 2, 2008 Page 3 On September 15, 2008, the Business License office received an appeal letter (see attached Letter #5) from Alpha Systems. A letter (see attached Letter #6) was sent back to Alpha Systems on September 17, 2008, indicating that an appeal hearing had been scheduled for September 22. At the Business License Review Board hearing, the Board asked Alpha to inspect and verify that all the businesses they serviced in the city had approved tags and were signed properly. Upon the completion of this task, Alpha Systems was to notify the Business License office. The Fire Department would then inspect the same businesses to verify compliance. The revocation hearing was continued until October 29 (see attached Minutes). On October 6, 2008, Alpha Systems sent a letter (Letter #7) to the Business License office indicating that all systems were in full compliance. The Fire Department went out on October 22, 2008, and inspected all 10 businesses to verify. At the continuation of the business license revocation hearing, held on October 29, 2008, the Fire Department submitted evidence that Alpha Systems did not tag a hood suppression system correctly and had left a system in an inoperable condition. Based on this finding, the Fire Department requested that the business license be revoked. A vote was taken and the results were 2 -1 in favor of revocation (see attached Minutes). On November 19, 2008, the Fire Department re- inspected the location above and found that the violations still exist and corrections have not been made. The Council may deny the appeal and uphold revocation, may approve the appeal and allow Alpha Systems Inc. the option to renew their business license or may remand the case back to the Business License Review Board for further review. RECOMMENDATION The Business License Review Board recommends that the appeal be denied and the business license for Alpha Systems, Inc. be revoked /not renewed. If the City Council decides not to revoke the business license, staff recommends the following conditions: 1. The business license be subject to review by the City Council for twelve (12) months. Should a repeat violation occur, it shall be brought to the City Council's attention, at which time the City Council shall have the right to revoke the business license in accordance with Section 6216.7 of the Arcadia Municipal Code. 2. The business license is renewed and appropriate fees are paid. Business License Revocation December 2, 2008 Page 4 Approved: Donald Penman, City Manager Attachments: Arcadia Municipal Code Section 6216.8 California Code of Regulations — Section 906 Correspondence between the City and Alpha Systems, Inc. Business License Review Board Minutes of Sept. 22, 2008 and Oct. 29, 2008 Photo of Tag Violation Business License Revocation December 2, 2008 Page 5 6216.8. NOTICE OF APPEAL. The actions taken pursuant to Section 6216.6 (denial) and 6216.7 (revocation) require at least ten (10) days' written notice to the applicant. Within five (5) days of receipt of notice of denial or revocation, the applicant may file an appeal to the Business Permit and License Review Board. Upon the filing of an appeal, and no later than ten (10) days from the date of such appeal, the hearing shall be conducted by the board at which time the applicant may present evidence in his favor and in opposition to the proposed denial or revocation. At the conclusion of the hearing, but no later than ten (10) days thereafter, the Board shall make findings and recommendations to the City Council. They shall be transmitted to the Council for placement on the agenda at the first regularly scheduled Council meeting subsequent to the rendition of findings and a recommendation by the Board. The City Council shall consider the findings and recommendations of the Board and may adopt them in total, or the City Council may amend, modify or reject the recommended decision of the Board. In addition, the City Council may send the findings and recommendations back to the Board with instructions to rehear any relevant matter not previously heard and then resubmit additional amended or modified findings to the Council. The Council may revoke, amend, modify, or impose such other or further terms, conditions or restrictions on the terms, conditions or restrictions theretofore placed in said permit as the Council finds reasonable or necessary to ensure that the business enterprise, occupation or activity will be contrary to or inimical to or jeopardize the preservation of the public peace, safety or welfare of the City or its inhabitants or be detrimental to other properties or businesses in the vicinity. ARCADIA MUNICIPAL CODE SECTION 621608 CALIFORNIA CODE OF REGULATIONS TITLE 19. PUBLIC SAFETY DIVISION 1. STATE FIRE MARSHAL CHAPTER 5. AUTOMATIC FIRE EXTINGUISHING SYSTEMS ARTICLE 6. LABELS, TAGS AND FORMS § 906. General. (a) Labels shall be used on water -based fire protection systems. (b) Tags shall be used on engineered and pre- engineered fixed extinguishing systems. (c) Labels and tags shall be white with black letters. They shall be five and one - fourth inch (1/4 inch) tolerance for each dimension. One sample label and /or tag shall be submitted to the Office of the State Fire Marshal for approval. (d) The following information shall be printed on labels and tags approved by the Office of the State Fire Marshal: (1) The words "DO NOT REMOVE BY ORDER OF THE STATE FIRE MARSHAL." (2) Concern name. (3) Concern physical address. (4) License Number. (California State Fire Marshal "A" license of State of California Contractors State License Board license) (5) Date of service or testing and maintenance. (6) The Seal of the Office of the State Fire Marshal. (7) Space or line for signature of person performing or supervising the service or testing and maintenance work. (e) When service or testing and maintenance is performed, the initial date of service or testing and maintenance, the printed name and signature of the person performing or supervising the servicing shall be placed on the tag or label. A hole shall be clearly punched in the appropriate boxes. (f) No person shall remove a tag or label from or place a tag or label on an automatic fire extinguishing system except when service or testing and maintenance is performed. (g) No person shall deface, modify, or alter any tag or label attached to or required to be attached to any automatic fire extinguishing system. (h) The label or tag conforming to this section shall be securely attached to each automatic fire extinguishing system at the time of service or testing and maintenance. (i) The label or tag approved by the Office of the State Fire Marshal shall be affixed to a system only after all deficiencies have been corrected. (j) Adhesive labels shall be manufactured in accordance with ANSI /UL 969, Standard for Marking and Labeling Systems, 4th edition, 1995, which is hereby incorporated by reference. CALIFORNIA CODE CA Code of Regs. - § 906 OF REGULATIONS City Of May 4, 2005 Arcadia Alpha Systems Fire Protection Inc. Attu: Jetty Pivnik P: O. Box 331027 Fire Pacoima, CA 91331 Department Dear Terry Pivnik, During numerous fire inspections of your hood suppression system David Lugo installations in the City of Arcadia, the Arcadia Fire Department noticed that Fire Cbicf your technicians ere illegally tagging these systems: Per the California Contractors State License Board, the technician conducting the work or service must sign and date the tag. The technicians are attaching tags stamped with "Jerry Pivnik" and are not signing the tags. The Arcadia Fire Department has warned your technicians that we will not accept these systems as being certified without a proper tag.- We have also called your office and explained this as well. Within the past month, the fq e depart;mt has found two hood suppression systems that have "stamped" tags attached. Please consider this letter as a final warning that this procedure is illegal: If any hood suppression system, fire sprinkler system or fire extinguisher is found to be illegally tagged a8er this date, the Arcadia Fire; Department will make a formal complaint with the Contractors State License Board and will request that the City of Arcadia revoke your business license. We appreciate your immediate attention to this matter. Sincerely, E� A Perurnean, Fire Inspector cc: Lisa - Melendez- Mussenden, City Attomey Office Tracey Zenaye, Business License 710 S. Santa Anim Avenue Arcadia, CA 91006 (626)574.5100 (626) 446 -7410 Fax LETTER N 05/13/2005 15:28 8188824984 ALPHA SYSTEMS FIRE PAGE 01 ALPHA SYSTEMS FIRE PROTECTION, INC. 00. BOX 337027 PACOIMA, CALIFORNIA 99333 f (800) 540.7605 Local # ( 818) 882 -2730 Fax # (8MM) 882.4984 May 9, 2005 TO: City of Arcadia — Fire Department Fax # (626) 446 -7410 FROM: Jill Pivnik, Administrator ALPHA SYSTEMS FIRE PROTECTION, INC. I am in receipt of your letter dated 5/4/05. This is the first time that this notice has come across my desk. We will of course do what you've have requested and are now in the.process of cpntacting all of our associates to let them know what is expected of them. In the near future, you might find some tags with "Jerry Pivnik" stamped on them and the technician's name signed above it until they run out of the present supply of stamped tags. Thank you for the above recommendation and be assured that we will comply with it. V LETTER #2 4 �� ���, C i t y of Jason Alpha Systems Arcadia PO Box 331027 Pacoima, CA 91333 Dear Mr. Pivnik: Fire On May 4, 2005, a letter was sent to your company from the Arcadia Fire Department Department requesting that you cease to illegally tag fire extinguishers in our city. The letter also warned you that continuation of any illegal work in our city would be cause to revoke your business license. David Lugo Your last business license expired on May 31, 2005. In March of 2006, our Fire Fire Chief Inspector witnessed and photographed a fire extinguisher tag serviced by your company. The tag was not signed by the technician but was instead stamped, a violation of Title 19, section 596.1. This work was conducted in our city without a business license. Per the Arcadia Municipal Code, section 6153, we have requested that the Business License office no longer issue a business license to your company to do work in our city. We have returned to you two (2) sets of plans submitted by your company to the city. I have also requested that the cashier's office refund any paid fees to you. Should you decide to appeal this decision you may contact the City Attorney's office at (626) 574- 5407. Sincerely, Mark Krikorian Fire Marshal Arcadia Fire Department Cc: City Attorney, Planning Department, Business License Office, Building Department. 630 S Baldwin Avenue Arcadia, CA 91007 (626) 574 -5100 (626) 446 -7410 LETTER #3 t City of A cadia September 8, 2008 Mr. Jerry Pivnik Alpha Systems Fire Protection Inc. P.O. Box 331027 Pacoima, CA 91331 MMEff?_ ,TIC I; aill JAJ)�� I�VL-11l .�1a SUBJECT: Revocation of Business License No. 036914 Dear Mr. Pivnik: Development The purpose of this letter is to inform you that your Business License No. Services 036914 is being revoked. Said revocation is due to the illegal tagging of the hood suppression system installations within the City of Arcadia. This is a Department violation of Arcadia Municipal Code Section 6216.7 (attached). Enclosed, please find a letter dated May 4, 2005 from Jill Perumean, Fire Jason Kruckeberg Inspector informing you of the above violation. In response to Ms. Perumean's Development Services Director letter, we received a letter from you dated May 9, 2005 assuring the Fire Department that you will comply. However, recent inspections by the Fire Department have again found the illegal tagging of hood suppression systems. You are to immediately cease the operation of your business within the City of Arcadia. Continuing to operate the business in the City without a license would violate Arcadia Municipal Code Section 6211, which constitutes a misdemeanor. Per Arcadia Municipal Code Section 6216.8 (attached) you may appeal this decision within five (5) days of the receipt of this notice. Said appeal must be made in writing and delivered to the undersigned. If you have any questions, please contact the me at (626) 574 -5430 or at US. Business License Officer Enclosures C: Jerry Pivnik, 1990 Mayall St., Chattsworth, CA 91333 Jim Kasama, Community Development Administrator Jill Perumean, Fire Inspector Mark Krikori an, Fire Marshall 240 West Huntington Drive P ost Office B ox 60021 LETTER #4 Arcadia, CA 91066 -6021 (626) 574-5414 AL PHA SYSTEMS FIRE PRO TECWN, INC, P.O. BOX 33f027 PACO /MA, CALIFORNIA 9f333 (800)540 -7605 LOCAL (323) 227 -0005 FAX (323) 227-0006 www.alphasystemsflre.com September 15, 2008 TO: City of Arcadia Tel # (626) 574 -5414 240 West Huntington Drive Arcadia, Ca. 91066 -6021 Attn: Silva Vergel — Business License Officer (626) 574 -5430 FROM Jason Pivnik ALPHA SYSTEMS FIRE PROTECTION, INC. Re: Revocation of Business License No. 036914 - Appeal This letter will serve as a request for an appeal regarding the revocation of our business license as per Arcadia Municipal Code Section 6216.8. We request a hearing to get reinstated to work in the city of Arcadia. Your letter regarding revocation was received certified mail on September 12, 2008. Please inform me of what the next step is in the appeal process, so that we may proceed. Si rely / NI11K Alpha Systems Fire Protection LETTER #5 0 ""AN, st City of Arcadia Development Services Department September 17, 2008 Mr. Jerry Pivnik Alpha Systems Fire Protection Inc. P.O. Box 331027 Pacoima, CA 91331 SUBJECT: Revocation of Business License No. 036914 Dear Mr. Pivnik: I am in receipt of your appeal letter, which was received on September 15, Jason Kruckeberg 2008. Said appeal was as a result of the revocation of your business license for Development Sernicer Director the illegal tagging of the hood suppression system installations within the City of Arcadia, which is in violation of Arcadia Municipal Code Section 6216.7 (attached). Your appeal has been scheduled before the Business License Review Board for Monday, September 22, 2008 at 11:00 a.m. in the DSD Conference Room, located inside the City Hall, 240 W. Huntington Drive., Arcadia. Please note that you are to immediately cease the operation of your business within the City of Arcadia. Continuing to operate the business in the City without a license would violate Arcadia Municipal Code Section 6211, which constitutes a misdemeanor. If you have any questions, please contact the me at (626) 574 -5430 or at Enclosures C: Jim Kasama, Community Development Administrator Jill Perumean, Fire Inspector Mark Krikorian, Fire Marshall 240 West Huntington Drive Post Office Box 60021 LETTER #6 Arcadia, CA 91066 -6021 (626) 574 -5414 (FIF\ aa9 -22M) V— Business License Otticer ALPHA SYSTEMS FIRE PRO TECT /ON, INC P.O. BOX 331027 PACO /MA, CALIFORNIA 91333 (800) 540-7605 LOCAL (323) 227 -0005 FAX (323) 227 -0006 www. alphasystemsflre. com October 6, 2008 TO: City of Arcadia FROM Jason Pivnik ALPHA SYSTEMS FIRE PROTECTION, INC. JOB SITE: Inspections and replacement of tags at Arcadia locations This letter will serve as a follow up report regarding the issue of the certification tags at the locations serviced by Alpha Systems Fire Protection, Inc., in the city of Arcadia: All the locations have been visited. Systems were inspected and the tags were replaced. There was one place that refused to allow us to enter the kitchen area. That is the location called Nobez (Named changed to Full Noodle). A couple of the restaurants have systems that will require an upgrade to UL 300 at the next service interval. The owners have been made aware of this. Sincerely, Jason Pivnik Alpha Systems Fire Protection LETTER V MINUTES BUSINESS LICENSE REVIEW BOARD �'• • ^` Monday, September 22,2008, 11:00 a.m. Development Services Conference Room ROLL CALL: Lt. Paul Foley, Arcadia Police Department Mr. Dave Thompson, Public Works Services Department Mr. Hue Quach, Administrative Services Department 2. REVOCATION HEARING Alpha Systems Fire Protection Inc. Mr. Jerry Pivnik REQUEST: Appeal of the revocation of Business License for illegal tagging of the restaurant hood fire- suppression system installations in the City of Arcadia. The staff report was presented by Business License Officer, Silva Vergel: This appeal was filed by Mr. Jason Pivnik on behalf of Alpha Systems Fire Protection, hic. The Business License for Alpha Systems was revoked because they were illegally affixing inspection/maintenance tags to hood fire suppression installations in the City, which is a violation of Arcadia Municipal Code Section 6216.7. The Fire Dept. had contacted Alpha Systems as long ago as May, 2005 to inform them of the violation, and Alpha Systems sent a letter dated May 9, 2005, stating that they would rectify the violation. However, during inspections this year, the Fire Dept. found multiple violations. For Business License revocations, this Board is an advisory body to the City Council. The Board's findings and recommendation will be forwarded to the Council for consideration at its next regular meeting. Fire Inspector, Jill Perumean and Capt. Dave Haney are here to answer any questions. The public hearing was opened. Mr. Jason Pivnik, said that his father, Jerry, passed away a month ago and he is representing the company. They have operated in the city for many years. In 2005, there was an incident of illegal tagging but they took care of that issue. He said they are now using the new tags, approved by the State Fire Marshall as of the beginning of the year. He said that there was one isolated case of misuse of the tag since 2005 and felt that the punishment is much too sever for the crime. He did not know where the technician got the illegal tag from but assured the Board that they are in compliance. He said that if there was ever a problem, they would be liable for any damages and the city would not be held liable. He said that tagging the system is a very basic issue and they should not lose their license over it. Ms. Jill Perumean, Fire Inspector, explained the problem and said that she has seen these illegal tags at various establishments. She did not know which technician is tagging them as they do not necessarily see the technicians when they inspect. The tags are wet stamped with the owner's name but the technician is the one who installs the unit. The technician must sign the tag and not put a wet stamped pre - signed tag on the units. If these systems do not work property, there could be fire hazard. She showed pictures of their tags; a correct one and one that is illegal. Business License Review Board MINUTES Minutes — Sept. 22 2008 Pagel of 2 In response to a question by Board Member Hue, Mr. Pivnik did not know who actually illegally tagged the system but he said that they have records of which technician inspects each site at their office. He said this last incident was a mistake; an error, which will not happen again. Capt. Dave Haney, Arcadia Fire Department, stated that if the inspection cards are not signed, they are not valid, just like the tags that are being attached. If during inspections, they find errors, a correction notice is issued. He said that this could be a liability to the City. He explained the inspection process. Board Member Hue asked if the Fire Dept. would impose a fee for re- inspection and Ms. Perumean indicated that there is no such fee. She questioned who would have to pay for the fee; the restaurant owner or the contractor. She did not think that it would be fair to have the business owner pay. She indicated that it would be very confusing to the restaurant owners, as they will not know whether their system is valid or not. She indicated that it would be extremely time consuming to re- inspect each site. Mr. Pivnik argued that the liability would be theirs. Board Member Hue suggested continuing the hearing to allow time for Mr. Pivnik to inspect each site and to ensure that they are properly tagged and to have the Fire Dept. to conduct a random check to ensure compliance. MOTION: It was moved by Mr. Hue, seconded by Lt. Foley to continue the hearing to October 27, 2008. ROLL CALL: AYES: Foley, Quach, Thompson NOES: None Adjourned COMMUNITY DEVELOPMENT DMSION REPRESENTATIVES: Jim Kasama & Silva Vergel Business License Review Board Minutes — Sept. 22, 2008 Page 2 of 2 MINUTES BUSINESS LICENSE REVIEW BOARD `'� �•'` Wednesday, October 9, 2008, 3:30 p.m. Development Services Conference Room ROLL CALL: Capt. Gene Gioia, Arcadia Police Department Mr. Dave Thompson, Public Works Services Department Mr. Hue Quach, Administrative Services Department 1. CONTINUED REVOCATION HEARING Alpha Systems Fire Protection Inc. Mr. Jason Pivnik REQUEST: Appeal of the revocation of Business License for illegal tagging of the restaurant hood fire- suppression system installations in the City of Arcadia. The staff report was presented by Business License Officer, Silva Verge]: This appeal hearing is continued from September 22, 2008. The Business License for Alpha Systems was revoked because they were illegally affixing inspection/maintenance tags to hood fire suppression installations in the City, which is a violation of Arcadia Municipal Code Section 6216.7. The Fire Dept. has been in contact with Alpha Systems as long ago as May, 2005 to inform them of the violation, and Alpha Systems sent a letter dated May 9, 2005, stating that they would rectify the violation. However, during inspections this year, the Fire Dept. found multiple violations. The Board continued the hearing to allow Mr. Pivnik time to inspect all of the equipment they serviced to ensure that they are in compliance. For Business License revocations, this Board is an advisory body to the City Council. The Board's findings and recommendation will be forwarded to the Council for consideration at its next regular meeting. Fire Inspector, Jill Perumean and Capt. Dave Haney are here to answer any questions. Mr. Quach noted that Capt. Gioia would be representing the Police Dept., as Lt. Foley is unable to attend due to a family emergency. He provided a brief summary of the September 22 hearing, and Capt. Gioia has been provided the minutes of that meeting. Mr. Pivnik indicated that there were several restaurants that need to upgrade their system. Ms. Perumean indicated that there were ten (10) restaurants on the list that was provided by Mr. Pivnik. She re- inspected all of them and still found one to be in non - compliance. Restaurants have different types of systems; they are not all the same. All restaurants need to have their units serviced every six months. She thought that it would be unfair to require the restaurants to upgrade or service their systems because Alpha Systems visited these locations only to correct the tags and not to service the units. Mark Krikorian, Fire Marshall, said that these illegal systems are a threat to public safety. David Haney, Captain, stated that at the first hearing, Mr. Pivnik was asked by the Board to re- inspect all the locations on their list and bring them into compliance. Subsequently, the Business License Officer Business License Review Board Minutes — Oct. 29, 2008 Page 1 of 2 received a letter indicating that all locations had been checked and are in compliance. However, the Fire Department's re- inspections found inadequate systems that are illegally tagged. Capt. Haney stated that Alpha Systems, Inc. knew that their license was in jeopardy of being revoked, but they still did not make all of the necessary corrections. Mr. Pivnik, said that they simply missed this one system. He pointed out that they corrected and brought into compliance everything else on the list. This unit was missed because there are two systems at this particular location. The individual who inspected this location is not the one that usually does it and did not know that there was a second system. MOTION: It was moved by Mr. Thompson, seconded by Capt. Gioia to recommend revocation of the business license based on the presented testimony. ROLL CALL AYES: Gioia, Thompson NOES: Quach Adjourned COMMUNITY DEVELOPMENT DIVISION REPRESENTATIVES: Jim Kasama & Silva Vergel Business License Review Board Minutes — Oct. 29. 2008 Page 2 of 2 . /� � � N, 1K, jjj ~ � `� � � googol STAFF REPORT Office of the City Clerk DATE: December 2, 2008 TO: Honorable Mayor and City Council FROM: James Barrows, City Clerk �� Prepared By: Lisa Mussenden, Chief Deputy City Clerk SUBJECT: APPOINTMENT TO THE HUMAN RESOURCES COMMISSION Recommendation: Make Appointment to Fill Unexpired Term. On October 20, 2008, the City Clerk's office received a letter of resignation from Peter Ulrich who was appointed to the Human Resources Commission on July 1, 2007 to a four (4) year term which expires on June 30, 2011. A copy of Mr. Ulrich's letter of resignation is attached. The City Clerk's office contacted the five individuals who had resumes on file from the June 2008 appointments and only two individuals expressed an interest to serve on the Human Resources Commission. A copy of those resumes are attached. The advertising of the vacancy is not required by law; however, the City Council may direct staff to advertise the vacancy in order to afford other citizens the opportunity to submit resumes for consideration and bring back to the City Council along with the attached resumes to a future meeting or make an appointment to the Human Resources from the attached resumes to fill the unexpired term of Peter Ulrich which expires June 30, 2011 and forego advertising. Pursuant to the City Charter, an individual appointed to fill an unexpired term is eligible for reappointment and may serve up to an additional two full consecutive terms. FISCAL IMPACT There is no fiscal impact from the City Council's action on this item. RECOMMENDATION Staff recommends that the City Council: (1) make an appointment to the Human Resources Commission from the resumes attached to fill the unexpired term of Peter Ulrich which expires June 30, 2011 and forego advertising; or (2) direct staff. to advertise the vacancy on the Human Resources Commission and bring back to the City Council along with the two resumes to a future City Council meeting. G\ »: .--ice CJ • `�� Donald Penman Penman City Manager Attachments Peter H. Ulrich 618 Fairview Avenue #232 Arcadia, California 91007 October 17, 2008 Honorable Mayor and City Council City of Arcadia City Hall Arcadia, California 91007 Gentlemen, RECEIVED OCT 2 0 2008 CITY OF ARCADIA CITY CLERK In anticipation of my move to Westminster Gardens in Duarte, I am herewith with regret submitting my resignation as a member of the city's Human Resources Commission. It has been my honor and pleasure to be part of the "official" city family for some 20 years as a member of the City Council, the Library Board of Trustees, the City Beautiful Commission and the Human Resources Commission. At least for the foreseeable future, I intend to continue my "non- official" volunteer service with Arcadia Police Department and various community groups. I will always consider Arcadia my "real home town Sincerely, Peter H. Ulrich c.c. Michael Casalou !` William W. Floyd, Jr, Esq. CITY OF ARCA ®IA Citizen Service Resume ARC"IA Office of the City Clerk ryCORpO$AT�O ,a�' 240 W. Huntington Drive Arcadia, CA 91007 (626) 574 -5410 REC ' - IVIE© Afar 19 f8 0 7y op PLEASE PLACE A CHECK MARK NEXT TO THE BOARD /COMMISSION FOR WHICH You WOULD LIKE TO APPLY (You may make more than one selection): Arcadia Beautiful Commission _ Historical Museum Commission _ Human Resources Commission X Planning Commission Recreation and Parks Commission Library Board of Trustees Senior Citizens' Commission ********** x****** x *** x****** x* xx**** x* x* xx****** x** xx *x * * * *x *xx *xxx * * *x *x *x *x * * * * *x Date of Application Name Francone Joan Arlene Last First Middle Address ..ome Phone Business Phone cell How long have you been a resident of Arcadia? 37 years Are you a registered voter? Yes X No Occupation Human resources /risk management consultant Employer Self Education (Include professional or vocational licenses or certificates) B.A. - Education Certified Paralegal — ommunity involvement (list organization memberships and committee assign) Arcadia Methodist Hospital Auxiliary- Scholarship Committee Chair Methodist Hospital Foundation -Mardi Gras Committee Arcadia Chamber of Commerce Please describe any background, training, education or interests that qualify you as an appointee I recently retired from the City of Vernon as Risk Manager/ Personnel Assistant. I reported to the city administrator who was also the director of personnel. I held that position from January 1990 through June 2007. Prior to the City of Vernon I was Personnel Officer for the City of Azusa. I worked for the City of Azusa from March 1986 until January 1990. My experience also includes private sector human resources and risk management. My public sector responsibilities included recruitment, selection, writing policy and procedure, budgeting, disciplinary actions and basically all areas of the employee/ employer relationship. I know and understand public sector employment. The City of Vernon is a full service city. Fire and police departments were my greatest challenge as those departments represented the bulk of workers compensation claims. Continuing education included classes in insurance management such as workers compensation, property and general liability. Both Azusa and Vernon were members of Independent Cities Risk Management uthority (ICRMA) a joint powers pool. Arcadia is also a member of ICRMA. What do you see as the objectives and goals of the advisory board or commission for which you are applying? The goal of any public or private sector employer is to recruit and retain qualified individuals to perform the functions required by the position. The advisory board, by recommendation to the city council, should assure that the services and needs of the community are met based on the performance of those individuals and or departments. Are you aware of the time commitment necessary to fulfill the obligations of an appointment to this position? Yes X No State law and the City Conflict of Interest Code requires you to file a statement of economic interests annually as well as related forms when you assume and leave your appointed office (e.g. sources of Income, loans, gifts, investments, interest in real property as required by state law). Do you agree to file all required forms in a timely manner as proscribed by the City's filing official? Yes X No I hereby certify that the foregoing information is correct to the best of my knowledge. l et-a te'� - Signature Date Please attach additional pages if necessary and return to the address listed on the reverse side Joan A.Francone 910 North First Avenue, Unit B Arcadia, CA 91006 (626) 447 -5460, joanfrancone @sbcglobal.net EDUCATION California State University, Los Angeles Bachelor of Arts in Education Pasadena City College, Pasadena, CA Certified Paralegal Glendale College of Law, Glendale, CA Attended PROFESSIONAL SUMMARY Over 20 years public and private sector experience in risk management and human resources management including classification analysis, recruitment and selecti medical and workers compensation management, general liability claims and - settlement, employee benefits, legislative tracking, employee policy development, ADA, EEOC, DFEH. EXPERIENCE City of Vernon, Vernon, CA Title: Risk/Human Resources Manager January 2, 1990 to June 30, 2007 Organized and developed the City's first risk management/personnel department. Developed the City's Injury and Illness Prevention Program (IIPP). Senate Bill 198. Developed, managed and maintained the City's self - insured employee benefits program including medical, dental, life and vision insurance coverage. Developed the City's first Wellness Program to include on -site health screenings, monthly newsletter and other information relative to good health and physical fitness. Organized a 5K Run -Walk including a health fair attended by health insurance providers. 1nteracte tt with committee comprised of employee representatives. Developed, conducted and maintained the City's Drug and Alcohol Screening Program. Established and coordinated the City's Safety Committee. Implemented the SAFETYLOGIC training program to allow safety committee members and other employee users to access and share safety topics and other related information. Received claims against the City including general liability and workers compensation. Assisted legal counsel in managing claims and settlement negotiations. Negotiated with medical and dental insurance vendors to obtain maximum coverage at the most reasonable cost. Developed chart of organization and job descriptions. Created job analyses under the Americans With Disabilities Act. Received complaints by employees and applicants relative to Affirmative Action/Equal Employment Opportunity violations and Sexual Harassment complaints. Assisted legal counsel in developing policies and procedures for same. Conducted the recruitment and selection process including testing, interviews, status notification, pre- employment physicals and orientation City of Azusa, Azusa, CA Title: Personnel Officer March 18, 1986 to December 31, 1989 Administeredthe- ity�personneL program- under-Givil- Service -r es,—lnteracte,&with Personnel Committee comprised of local citizens to administer program. Received claims and maintained workers compensations and general liability files. Assisted counsel in settlement. San Gabriel Distributing Company, South El Monte, CA Office Manager A union environment organization specializing in importing, exporting and distributing alcoholic beverages. Responsible for personnel and risk management, payroll including state and federal reports, employee benefits administration according to union contract, state reports relative to alcoholic products. CITY OF ARCADIA' RECEIVED Citizen Service Resume MAY 13 2008 0 0RaTID9 Office of the City Clerk 240 W. Huntington Drive CITY OFARCADIA Arcadia, CA 91007 CITY CLERK (626) 574 -5410 PLEASE PLACE A CHECK MARK NEXT TO THE BOARD /COMMISSION FOR WHICH YOU WOULD LIKE TO APPLY (You may make more than one selection): Arcadia Beautiful Commission _ Historical Museum Commission Planning Commission Human Resources Commission? Recreation and Parks Commission ✓ Library Board of Trustees � Senior Citizens' Commission Date of Application t✓Q � Name ICIi 11-rQYly� Last First Middle f+nme Phone Business Phone) i._.v long have you been a resident of Arcadia? 2 Lws Are you a registered voter? Yes ✓ No Occupation IQWI.W Employer fttl - 114M c � .1 1.- u� Education (Include.professional or vocational licenses or certificates) USC nl 5Ch001 Community involvement (list organization memberships and committee assignments) + yh rhvc�d Geaal tr cC i oJ- " PAi-i A , _ Rn/ AL n, ,. Tease describe any background, training, education or Interests that qualify you as an appointee ("� LL�vr?1P,J j%zS',C�'hL fo fflP v P /Q/1r P LEASE COMPLETE THE REVERSE SIDE OF THIS FORM) TIFFANY W. TAI BENSINGER, RM, TAI & THVEDT, LLP 65 N. RAYMOND AVENUE, SUITE 320 PASADENA, CALIFORNIA 91103 TEL: (626) 685-2550 FAX: (626) 685-2562 e -mail: tai @brttlaw.com LEGAL EXPERIENCE February 2005 - BENSINGER, RITT, TAI & THVEDT Present Pasadena, California Partner November 1997 - Associate January 2005 Criminal and Civil Litigation: Represents individuals and entities in state and federal court. Involved in all aspects of the firm's practice, including federal habeas petitions, and defense of white collar crimes, including RICO, tax evasion and wire fraud, as well as complex business litigation with emphasis in intellectual property and unfair competition. Translates for and represents the firm's Chinese - speaking clients. August 1995 - Law Clerk October 1997 Summer Associate (Summer 1996) Conducted legal research, memo drafting and document review for all partners at the firm. Worked on briefs, motions and other pleadings as a Certified Student under the California State Bar. Responsible for initial client in -take in employment discrimination and mediation cases. Translated for Chinese clients, and assisted managing partner in administrative duties including, but not limited to, setting up the master firm calendar, compiling and creating the firm resume, and installing and maintaining numerous computer software. May 1995 - UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT August 1995 Pasadena, California Judicial Extem to the Honorable Dorothy W. Nelson Reviewed appellate briefs and conducted independent legal research on various topics including intellectual property, immigration law, criminal procedure, sentencing and habeas corpus procedure. Wrote bench memoranda evaluating the merits of the parties' positions and arguments. Drafted disposition memoranda, and assisted in the drafting of opinions. Also wrote "prep" memoranda to Judge Nelson, reviewing relevant cases and suggesting appropriate questions during oral argument. Accompanied Judge Nelson to San Francisco for en banc oral argument. Served as translator for Judge Nelson and visiting Chinese dignitaries. TIFFANY TAI Page 2 TEACHING EXPERIENCE August 1996 - USC MARSHALL SCHOOL OF BUSINESS ADMINISTRATION May 1997 Los Angeles, California Teaching Assistant to Professor Henry R Cheeseman Lead teaching assistant in undergraduate class of Business and Finance Law with more than two hundred students. Administered office hours to tutor undergraduate and MBA students in subjects ranging from formulation of contracts to business torts. Wrote and graded exams. ENTERTAINMENT EXPERIENCE August 1996 - BUENA VISTA PICTURES DISTRIBUTION, INC. August 1997 Burbank, California College Network Representative Worked as independent contractor to BVPD in the research and evaluation of audience reaction to theatrical releases and trailers. Conducted regular visits to theatres in the Greater Los Angeles area on behalf of Buena Vista to assess and evaluate their promotional efforts. June 1993 - THE WALT DISNEY STUDIOS August 1994 Burbank, California Feature Administration Staff Assisted in the Feature Administration department to ensure the smooth conversion of theatrical releases into versions sold to television networks and commercial airlines. Duties included analyzing scripts for non - compliant material, creating alternatives to creative executives, and reviewing dailies to monitor compliance. JOURNALISM EXPERIENCE January 1993 - CABLE NEWS NETWORK (CNN) May 1993 Los Angeles, California Assignment Desk Intern May 1992 - PASADENA STAR -NEWS August 1992 Pasadena, California Reporting Intern January 1992 - KCAL -TV May 1992 Hollywood, California Assignment Desk and Production Intern TIFFANY TAI Page 3 EDUCATION University of Southern California Gould School of Law Los Angeles, California Juris Doctor, 1997 Honors: Hale Moot Court Honors Program Administrative Vice Chair Hale Moot Court Honors Program Quarterfinalist Carolyn Craig Franklin Scholar Activities: Asian Pacific American Law Student Association (APALSA); USC Law School Student Advisor, Volunteer Tour Guide; Women's Law Association; Phi Alpha Delta Law Fraternity University of Southern California Annenberg School For Communication Los Angeles, California Master of Arts in Communication Management, 1997 Activities: Research Assistant to Professor Tracy Westen – President of the Center for Governmental Studies ( "CGS ") – and conducted independent research into various legal issues including whether a non - profit organization such as CGS can create an electronic voter guide by establishing and providing free websites to political candidates without running afoul of statutory regulation. University of Southern California School of Journalism Los Angeles, California Bachelor of Arts in Journalism and Political Science, 1994 Honors: Graduated Magna Cum Laude, Phi Beta Kappa, Dean's Scholar, Golden Key National Honor Society, Alpha Lambda Delta National Honor Society, Mortar Board Senior Honor Society (Membership Co-Chair) Activities: Staff Writer to the Dailyrojan, El Rodeo Yearbook Staff, News Reporter at KSCR Campus Radio BAR California State Bar: Admitted December 15, 1997 ADMISSION U.S. District Court, Central District of California: Admitted December 15, 1997 U.S. District Court, Northern District of California: Admitted August 13, 2002 U.S. Court of Appeals for the Ninth Circuit: Admitted December 15, 1997 U.S. Court of Appeals for the Federal Circuit: Admitted November 17, 2005 BAR American Bar Association ACTIVITIES Los Angeles County Bar Association Pasadena Bar Association San Gabriel Valley Bar Association Asian- Pacific American Bar Association Southern California Chinese Lawyers Association Taiwanese American Lawyers Association PROFESSIONAL American Judicature Society — nominated by the Honorable Dorothy Nelson AFFILIATIONS American Civil Liberties Union USC Law School Legion Lex Alumni Association USC School of Journalism Alumni Association USC Unruh Institute of Politics Alumni Los Angeles County Neighborhood Legal Services – board of directors 50: 0158 CITY COUNCIL /REDEVELOPMENT AGENCY REGULAR MEETING MINUTES TUESDAY, NOVEMBER 18, 2008 CALL TO ORDER Mayor Harbicht called the Meeting to order at 6:00 p.m. ROLL CALL OF CITY COUNCIUREDEVELOPMENT AGENCY MEMBERS: PRESENT: Council /Agency Member Amundson, Chandler, Kovacic, Wuo and Harbicht ABSENT: None CLOSED SESSION PUBLIC COMMENTS (5 minutes per person) None CLOSED SESSION a. Pursuant to Government Code Section 54956(a) to confer with legal counsel regarding the case of Ken Hamer v. City of Arcadia, at al . (United States District Court Case No. CV08 -02286 MANx). b. Pursuant to Government Code Section 54956.8 conference with real property negotiators: Property: Leasehold Interest in property at 21 Morlan Place Agency Negotiator: Agency Executive Director and Development Services Director Negotiating Parties: Arcadia Redevelopment Agency and Wendy Doc and David Dong (Church in Arcadia) Under Negotiation: Price and Terms of Payment C. Pursuant to Government Code Section 54956.8 conference with real property negotiators: Property: Purchase of Real Property at 41 W. Huntington Drive Agency Negotiator: Agency Executive Director and Development Services Director Property Owner: Manuel Romero Under Negotiation: Price and Terms of Payment d. Pursuant to Government Code Section 54956.8 conference with real property negotiators: Property: Leasehold Interest in Property at 33 W. Huntington Drive Agency Negotiator: Agency Executive Director and Development Services Director Negotiating Parties: Arcadia Redevelopment Agency and-Paul. Rusnak Under Negotiation: Price and Terms of Payment 11 -04 -2008 50: 0159 RECONVENE CITY COUNCIUREDEVELOPMENT AGENCY MEETING TO OPEN SESSION Mayor Harbicht called the Regular Meeting to order in the Council Chamber at 7:00 p.m. INVOCATION Reverend Jolene Cadenbach, Arcadia Congregational Church PLEDGE OF ALLEGIANCE Jason Kruckeberg, Development Services Director ROLL CALL OF CITY COUNCIUREDEVELOPMENT AGENCY MEMBERS: PRESENT: Council /Agency Member Amundson, Chandler, Kovacic, Wuo and Harbicht ABSENT: None REPORT FROM CITY ATTORNEY /AGENCY COUNSEL ON CLOSED SESSION ITEMS City Attorney Steve Deitsch reported that the City Council met in a closed session to discuss and consider Item (a) listed under closed session on the posted agenda, no reportable action was taken. In addition, he further reported that the Redevelopment Agency met in closed session to consider Items (b), (c) and (d) listed on the posted agenda no reportable action was taken. SUPPLEMENTAL INFORMATION FROM CITY MANAGERIEXECUTIVE DIRECTOR REGARDING AGENDA ITEMS None MOTION TO READ ALL ORDINANCES AND RESOLUTIONS BY TITLE ONLY AND WAIVE THE READING IN FULL A motion was made by Council /Agency Member Amundson, seconded by Council /Agency Member Chandler and carried on roll call vote to read all ordinances and resolutions by title only and waive the reading in full. 1. PUBLIC HEARING CITY COUNCIL ITEMS: a. Adopt Interim Uroencv Orrlinanca Nn 99Fl annMarl 4, r1 .............. Recommended Action: Adopt Jason Kruckeberg, Development Services Director presented the staff report extending Interim Urgency Ordinance No. 2250 for an additional 10 months and 15 days regarding the establishment of massage therapy businesses. Mr. Kruckeberg reported that since the City Council adopted the moratorium on October 21, 2008, staff has researched various options to 11 -04 -2008 50: 0160 strengthen the City's regulations of massage therapy businesses and the issuance of licenses for massage therapists. He explained that until such time as the impacts of such establishments can be fully assessed and staff can properly research options for regulations, staff recommends that the moratorium be extended for an additional 10 months and 15 days. He further explained that legitimate day spas, medical office uses such as chiropractors and acupuncturists and other health centers sometimes change once established into primarily massage uses. He noted that an alternative regulation can be to require written and physical testing of prospective massage therapists. He reported that of the 40 massage establishments inspected by City staff all establishments had some form of violation of the City's existing massage therapy ordinance. He reported that the Massage Therapy Title Act (Senate Bill 731) which was recently passed establishes a statewide standard for massage certifications goes into effect September 1, 2009 and will ensure the certification process. In addition, he advised that until all proper studies and analyses can be completed and until the implications of various regulatory approaches can be fully understood, he recommended that the City Council extend the current moratorium. Chief Sanderson further added that since the adoption of the moratorium a third round of inspections were conducted of the 40 massage establishments and reported the results. He noted that in a number of instances where the business was advertised as a chiropractic or acupuncturist office, it was confirmed that it was a massage only establishment. He reported that sites are still showing up on various adult oriented websites advertising sexual services that indicate prostitution. He further reported that the City is currently in the process of revoking business licenses for several of the business establishments and also recommends that the moratorium be extended. Mr. Kruckeberg concluded that staff recommends adopting Ordinance No. 2251 which will extend the moratorium. He reported that staff has received a number of letters and a -mails regarding this matter and explained that one issue raised was if the moratorium pertains to renewals of existing business licenses or renewals of business licenses of existing massage therapy operations and whether existing massage therapy licenses can relocate to another location in the City. He explained that Ordinance No. 2251 allows renewals of existing licenses, but the issue of relocation is not addressed in the proposed ordinance. He further explained that he has discussed the relocation issue with the Police Chief and City Manager and believes it can be added as an exemption in the ordinance if the City Council agrees. Mayor Harbicht opened the public hearing. Sam Serrano, Massage Therapist at Voltre Salon in Arcadia appeared and spoke in favor of the moratorium and requested that language be added to the moratorium ordinance that would allow the transfer of a massage therapist license to another location in town and also requested that once the moratorium is lifted to include language that would allow the ability to open a new business with massage therapy as a secondary business. A motion to close the public hearing was made by Council Member Chandler, seconded by Council Member Amundson and seeing no further objection, the Mayor declared the public hearing closed. At the request of the City Council, City Attorney Steve Deitsch read into the record language to be included in the moratorium that would allow for the relocation of either a business or a licensed massage therapist from a place within the City to another location in the City assuming they have a valid license to operate from where they were originally located. In addition, Mr. 11 -04 -2008 50: 0161 Deitsch noted that the moratorium does not allow for a licensed massage therapist in town to move to a new location in the City and open a new business. It was moved by Council Member Chandler, seconded by Council Member Amundson and carried on roll call vote to adopt Interim Urgency Ordinance No. 2251 enacted pursuant to Government Code Section 65858 extending Interim .Urgency Ordinance No. 2250 for an additional 10 months and 15 days and continuing for this period the temporary moratorium on the establishment of Massage Therapy Businesses as amended. AYES: Council Member Chandler NOES: None ABSENT: None Amundson, Kovacic, Wuo and Harbicht Assessment District. Recommended Action: Conduct and close the Public Hearing and report back the ballot results on December 2, 2008 Tom Tait, Deputy Public Works Services Director provided a brief summary and overview of the formation of the Citywide Street Lighting Assessment District. He reported on the existing five lighting districts, zones and assessments within each district. He discussed the balloting process, public outreach efforts and presentations made by the City to various boards and commissions. He reported that the purpose of the proposed assessment district is to fund a portion of the on -going operations, maintenance and servicing of the public lighting improvements in the City and noted that the assessment is not a new revenue but would be disbursed throughout the entire City based on special benefits the property owners receive for the street lighting. He noted that the ballots will be counted on November 19'" and the results presented at the December 2 " City Council meeting. He further noted that if a majority protest exists, the City Council will be required to abandon the formation of the district and the proposed levy of assessments. He reported that assessments will remain to property owners who live in the existing districts until 2010; however if a majority of protests do not exist, the City Council may be required by resolution to adopt the Engineers report and order the formation of the district and assessments submitted to the County of Los Angeles for inclusion in the property tax roll commencing in fiscal year 2009 -2010. Mayor Harbicht opened the public hearing. Roberta Marquez, resident in Zone 2, appeared and reported that there are only 2 street lights on her street and wanted to know why she would have to be assessed. She commented that she has spoke to Public Works and has been provided information to add additional street lights on her street. A motion ,to close the public hearing was made by Council Member Chandler, seconded by Council Member Amundson and seeing no further objection, the Mayor declared the public hearing closed. It was the consensus of the City Council that staff proceed with counting the ballots and report back the results at the December 2, 2008 City Council meeting. 11 -04 -2008 4 50: 0162 PUBLIC COMMENTS None REPORTS FROM THE MAYOR, CITY COUNCIL AND CITY CLERK Council Member Kovacic wished his Mother a Happy Birthday; he mentioned that on November 19' the Chamber of Commerce, the Arcadia Chinese Association and the Arcadia Masonic Center will host an Asian Business Night and encouraged everyone to attend; also the Arcadia Historical Society is conducting an on -going creative expression contest themed "Arcadia History Lives Here" and encouraged students to participate. He announced that the Foothill Unity Center needs volunteers to assist in distributing Thanksgiving and Holiday baskets to low income families and the homeless and urged residents to get involved. He provided contact information for those who were interested in volunteering. Council Member Kovacic further added that on November 2e at 7:00 p.m. the Interfaith Action Group will be holding their annual community Thanksgiving Service at Holy Angels Church and the theme this year is "Giving Thanks for the Gift of Music. Council Member Amundson noted that 5 million people participated in the "great shakeout" last Thursday and encouraged everyone to be prepared for the big one; he mentioned Veteran's Day last week and noted that residents can adopt a Veteran by calling the City Manager's office; he announced the drop off locations for unwrapped toys for the Toys for Tots program for needy children at Christmas time and urged everyone to drop off an unwrapped toy, he noted that a recent news article listed Arcadia as one of the best places to raise children and explained the criteria. He announced that Dr. James Dobson, a former Arcadian, was inducted into the Radio Hall of Fame. Council Member Chandler reported that he attended a Transportation Convention as a member of the Foothill Transit Executive Board and shared transportation highlights. Mayor Pro Tem Wuo had nothing to report. City Clerk James Barrows announced that the 55 Annual Arcadia Band Review is this Saturday; he noted that several streets in town will be closed so plan alternate routes. He further noted that 39 bands with about 5,000 students will be performing and he thanked everyone for their participation and cooperation including the businesses in the area of the parade route. He reported that a field tournament will be held at Citrus college beginning at 4:00 p.m. where some of the bands will perform and awards will be given out and encouraged everyone to attend. He wished everyone a Happy Thanksgiving. Mayor Harbicht noted that holiday shopping is just around the corner and urged residents to use Arcadia Transit to avoid traffic and parking. He provided information regarding the 2008 Holiday Home Decoration Contest; the preliminary judging is between December 1 and 7 and the final judging is on December 8 and encouraged every to decorate for the holiday. He commented on the publicity received regarding Arcadia being named the best place to raise children. He announced that he attended a program on Veteran's Day in Monrovia sponsored by the Arcadia Monrovia Veterans of Foreign War and noticed that there was not very much participation; and he announced the Turkey Trot on November 23r at noon at the Community Center. 11 -04 -2008 50: 0163 CONSENT CALENDAR REDEVELOPMENT AGENCY ITEMS: a. Recommended Action: Approve CITY COUNCIL ITEMS: Approve the Continued Adjourned Meeting Minutes of October 29 and Regular Meeting Minutes of November 4. 2008. Recommended Action: Approve C. 9 California Environmental Quality Act (CEQA). Recommended Action: Approve In response to an inquiry by Council Member Chandler regarding. Consent Item 1(c), Mr. Penman explained that the chillers are a high energy efficiency system that was state of the art when they were installed in the Police Department. He noted that the chillers supply chilled water for the central. air conditioning in the Police Department and City Hall. Mr. Penman noted that the chillers have not been working properly which has resulted in a loss of chilled water flowing through the central air conditioning unit. A motion was made by Council /Agency Member Chandler, seconded by Council /Agency Member Amundson and carried on roll call vote to approve items 2.a through 2.d on the City Council /Agency Consent Calendar. AYES: Council /Agency Member Chandler, Amundson, Kovacic, Wuo and Harbicht NOES: None ABSENT: None 3. CITY MANAGER/EXECUTIVE DIRECTOR a. authorize the City Manager to execute the Lease Agreement on behalf of the C Recommended Action: Approve Mr. Malloy provided a brief summary and background report regarding the RFP process and the proposals received for the management of operations and maintenance of the Arcadia Par 3 Golf Course. He noted that American Golf Corporation was selected by the City Council as the 11 -04 -2008 Recommended Action: Approve 50: 0164 most qualified to manage the operations and maintenance of the golf course. Mr. Malloy further noted that the City has spent the last 2 % months negotiating a final lease agreement. Marie Rodriguez, Management Analyst reported on the negotiation process and explained the terms of the final lease agreement with American Golf. She noted that American Golf and the City have reached a 20 year lease agreement and reported on the major highlights of the agreement. She also reported that at the request of the City Council, a condition was added to the agreement to allow for the sale of a portion of the golf course if the City chooses to do so in the future. She noted that staff feels that the final lease agreement includes all of the City Council's concerns and will ensure a quality golf experience for the community and recommends that the City Council award a lease agreement for the complete management of operations and maintenance of the Arcadia Par 3 Golf Course to American Golf Corporation. It was moved by Council Member Chandler, seconded by Mayor Harbicht and carried on roll call vote to award a lease agreement for the complete management of operations and maintenance of the Arcadia Par 3 Golf Course to American Golf Corporation and authorize the City Manager to execute the lease agreement on behalf of the City. AYES: Council Member Chandler, Harbicht, Amundson, Kovacic and Wuo NOES: None ABSENT: None b. Consideration of Design Review approval and appropriation of $252.994 from the Recommended Action: Jason Kruckeberg, Development Services Director provided the staff report regarding the rehabilitation and improvements at 33 -27 West Huntington Drive, the Arcadia Self Storage building. He reported that the Redevelopment Agency took over ownership of the Self Storage in October of 2006. He further reported that the Agency has continued to use the building as a storage facility but has not rented out any new units. He noted that the Agency has been working with Rusnak on a land assembly deal which would provide expansion opportunities for Rusnak. He explained design review and exterior improvements and interior improvements to commercial spaces and the overall site improvements. Mr. Kruckeberg noted that La Canada Design Group was contracted for architectural services to plan the exterior improvements to the building and Vargas Olson was contracted with to estimate the interior improvements and staff recommends that the Agency approve design review for 35 West Huntington Drive and appropriate $252,994 from the Redevelopment Agency budget for the rehabilitation and improvement of the building. It was moved by Agency Board Member Chandler, seconded by Agency Board Member Kovacic and carried on roll call vote to approve Design for 35 West Huntington Drive and appropriate $252,994 from the Redevelopment Agency budget for the rehabilitation and improvement of the building. AYES: Council Member Chandler, Kovacic, Amundson, Wuo and Harbicht NOES: None ABSENT: None ifQ�LS�I�I�Y.? 50: 0165 C. Recommended Action: Adopt It was moved by Council Member Chandler,. seconded by Mayor Pro Tem Wuo and carried on roll call vote to adopt Resolution No. 6656 casting Arcadia's five (5) votes for Council Member Greg Nordbak of Whittier, California to represent cities with prescriptive water pumping rights on the Board of the San Gabriel Valley Water Quality Authority. AYES: Council Member Chandler, Wuo, Amundson and Harbicht NOES: None ABSENT: None ABSTAIN: Council Member Kovacic ADJOURNMENT The City Council /Redevelopment Agency adjourned this meeting in memory of Muriel Call at p.m. to Tuesday, December 2, 2008, 6:00 p.m. in the City Council Chamber Conference Room located at 240 W. Huntington Drive, Arcadia. James H. Barrows, City Clerk By: Lisa Mussenden, Chief Deputy City Clerk/ Records Manager 11 -04 -2008 STAFF REPORT Fire Department DATE: December 2, 2008 TO: Mayor and City Council FROM: Tony L. Trabbie, Fire Chief ff By: Yvonne Yeung, Management Analyst SUBJECT: THROUGH JUNE 30, 2074 Recommendation: Approve SUMMARY The existing Weed Abatement Services Agreement between the City of Arcadia and the County of Los Angeles expires on June 30, 2009. Therefore, staff is requesting City Council approval to renew the agreement for an additional five -year period from July 1, 2009 through June 30, 2014. DISCUSSION Under the terms of the existing agreement, the County of Los Angeles Agricultural Commissioner/Weights and Measures Department performs weed abatement functions within the City of Arcadia. All designated improved properties or unimproved properties that are not adequately maintained by the property owners are cleared of weeds, brush, or rubbish as directed by the Arcadia Fire Department as part of the City's fire prevention efforts. The cost of all work performed is assessed and placed on the tax roll of subject properties in the manner set forth in Government Code sections 39573 to 39585. In addition, any parcels (except tax - exempt parcels) upon which weeds, brush, or rubbish are declared to be a public nuisance are assessed the County- approved inspection fee whether or not it was necessary to perform abatement work upon the parcel. The collection of such assessments is then paid over to the County. This program has worked very effectively in the past. The services provided by the County for the removal of weed growth and debris from vacant properties are in compliance with the County's and the City's hazardous vegetation clearance standard. Therefore, staff recommends that we continue to contract with the County for this service. Mayor and City Council December 2, 2008 Page 2 FISCAL IMPACT There is no direct cost to the City of Arcadia for this service and minimal staff time is required to administer this agreement. The inspection fee and cost of all work performed by the County is assessed and placed directly upon the tax roll of subject properties. It is recommended that the City Council approve the renewal of the Weed Abatement Services Agreement between the City of Arcadia and the Los Angeles County Agricultural Commissioner/Weights and Measures Department for the term of July 1, 2009 through June 30, 2014. Approved: 5 ) m + 4 p Rlv�� Donald Penman, City Manager 4 STAFF REPORT Administrative Services Department DATE: December 2, 2008 TO: Mayor and City Council FROM: Hue C. Quach, Administrative Services Director SUBJECT: Resolution No 6664 establishing an Identity Theft Recommendation: Adopt SUMMARY The Fair and Accurate Credit Transaction Act of 2003 ( "FACTA "), section 114, as implemented by the Red Flag Rules, 16 C.F.R. § 681.2, issued by the Federal Trade Commission (FTC) requires creditors of customer accounts to implement an Identity Theft Prevention Program. Pursuant to the regulations, City of Arcadia is a creditor because it provides services to customers prior to receipt of payment through customer accounts, including utility service accounts, and for which there is a reasonably foreseeable risk of identity theft. For that reason, the City of Arcadia is required to implement an Identity Theft Prevention Program. The purpose of this Identify Theft Prevention Program ( "Program ") is to detect, prevent and mitigate identity theft in connection with all customer accounts, taking into consideration the level of risk for identity theft given the City of Arcadia's scope of services provided and the types of accounts. This Program is created to identify patterns, practices and specific activities that indicate the possible existence of identity theft, hereinafter referred to as "Red Flags." The Program sets forth the procedures for detecting Red Flags and responding to Red Flags when discovered. The initial compliance date for the Program was November 1, 2008. However, on October 22, 2008, the FTC released an Enforcement Policy Statement which suspended the enforcement of the new "Red Flags Rule" until May 1, 2009. BACKGROUND The Fair and Accurate Credit Transactions Act of 2003 ( "FACTA") directs the federal bank regulatory agencies and the Federal Trade Commission (the "Agencies ") to issue joint regulations and guidelines regarding the implementation of programs to detect, prevent, and mitigate identity theft. In November 2007, the Agencies jointly issued final rules and guidelines (the "Rules ") implementing Section 114 of FACTA. The Rules require each financial institution or creditor to develop and implement a written Identity Theft Prevention Program ( "Program ") to detect, prevent, and mitigate identity theft in connection with the opening of certain accounts or certain existing accounts. The Program must be able to detect patterns, practices and specific forms of activity that are "red flags" signaling possible identity theft and incorporate those red flags into the Program. The Agencies issued guidelines to assist financial institutions and creditors in the development and continuation of a Program that satisfies the requirements of the Rules. The Rules became effective January 1, 2008, and compliance with the Rules is set for May 1, 2009. The FTC regulations apply to cities in cases where cities are "creditors" with "covered accounts." The FTC considers a government entity to be a creditor where it defers payment for goods or services by its customers, the most common example being public utilities, such as water and wastewater. A "covered account" is defined as: o An account that is used primarily for family, personal, or household purposes and involves or is designed for multiple payments or transactions, such as credit card accounts, utility accounts, and checking or savings accounts; or o Any other account that involves a foreseeable risk of identity theft. The Identity Theft Prevention Program The written Program must be aimed to identify "red flags," prevent identity theft, discuss appropriate action should red flags be detected, and include a plan for updating the Program. The Rules require the governing body or senior employees of the public agency to manage the Program, train staff and oversee any service providers. Service provider oversight is required in connection with the use of computer software designed to detect red flags. The Agencies identified 26 red flags that fit into the following categories: (1) consumer reporting agencies' alerts, notifications or warnings; (2) suspicious documents; (3) suspicious personal identification information; (4) unusual and /or suspicious account activity; and (5) notification from customers, victims of identity theft, law enforcements, or businesses of possible identity theft. The 26 red flags identified are merely guidelines for creditors, such as public agencies, to use in creating their Program. The guidelines provide flexibility for each Program to be specifically tailored according to the size, complexity and nature of the operations, as well as the amount of risk involved with identity theft in connection with the accounts. Attached is an Identity Theft Prevention Program that was developed to comply with the Federal regulations and has been modified to fit the City of Arcadia's operations. FISCAL IMPACT Labor and material cost in relation to the conformity of The Fair and Accurate Credit Transaction Act of 2003 will likely occur, however, those costs cannot be determined at this time. RECOMMENDATION It is recommended the City Council adopt: Resolution No. 6654 establishing an Identity Theft Prevention Program in accordance with The Fair and Accurate Credit Transaction Act of 2003 Approved by: c Pa n- Donald Penman, City Manager RESOLUTION No. 6654 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ARCADIA, CALIFORNIA, ESTABLISHING AN IDENTITY THEFT PREVENTION PROGRAM IN ACCORDANCE WITH THE FAIR AND ACCURATE CREDIT TRANSACTION ACT OF 2003 WHEREAS, the Fair and Accurate Credit Transaction Act of 2003 ( "FACTA "), section 114, as implemented by the Red Flag Rules, 16 C.F.R. § 681.2, issued by the Federal Trade Commission along with other federal agencies, requires creditors of customer accounts to implement an Identity Theft Prevention Program; and WHEREAS, the City of Arcadia is a creditor because it provides services to customers prior to receipt of payment through customer accounts, including utility service accounts, which are maintained primarily for personal, family or household purposes and involve multiple payments or transactions, and for which there is a reasonably foreseeable risk of identity theft; and WHEREAS, the City of Arcadia is therefore required to implement an Identity Theft Prevention Program; and WHEREAS, the purpose of the Identify Theft Prevention Program is to detect, prevent and mitigate identity theft in connection with all customer accounts, taking into consideration the level of risk for identity theft given the City of Arcadia's scope of services provided and the types of accounts; and WHEREAS, the Identify Theft Prevention Program is created to identify patterns, practices and specific activities that indicate the possible existence of identity theft, referred to as "Red Flags," and sets forth the procedures for detecting Red Flags and responding to Red Flags when discovered; and WHEREAS, the City Council desires to adopt and implement an Identity Theft Protection Program as required under Federal Law. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ARCADIA, CALIFORNIA, DOES HEREBY FIND, DETERMINE AND RESOLVE AS FOLLOWS: SECTION 1. Adoption of Identity Theft Prevention Program. The City of Arcadia hereby adopts the "Identity Theft Prevention Program" attached hereto as Exhibit "A ". SECTION 2. Designation of Authority. The City Council of the City of Arcadia authorizes the City Manager or his designee to act on the City Council's behalf to oversee the implementation and administration of the Identity Theft Prevention Program in accordance with Federal Law. F1 SECTION 3. Amending the Identity Theft Prevention Program. The Identity Theft Prevention Program may be amended from time to time as needed based on, but not limited to, the following events: experience with identity theft; changes to the types of accounts and/or programs offered; and implementation of new systems and /or new vendor contracts. SECTION 4. The City Clerk shall certify to the adoption of this Resolution. Passed, approved and adopted this ' day of , 2008. Mayor of the City of Arcadia ATTEST: City Clerk APPROVED AS TO FORM: Stephen P. Deitsch City Attorney 3 Exhibit A City of Arcadia Identity Theft Prevention Program This program is in response to and in compliance with the Fair and Accurate Credit Transaction (FACT) Act of 2003 r The final rules and guidelines for the FACT Act issued by the Federal Trade Commission and federal bank regulatory agencies in November 2007 Adopted December 2, 2008 — Resolution No. 6654 Identity Theft Prevention Program Purpose This document was created in order to comply with regulations issued by the Federal Trade Commission (FTC) as part of the implementation of the Fair and Accurate Credit Transaction (FACT) Act of 2003. The FACT Act requires that financial institutions and creditors implement written programs which provide for detection of and response to specific activities ('red flags ") that could be related to identity theft. These programs must be in place by May 1, 2009. The FTC regulations require that the program must: 1. Identify relevant red flags and incorporate them into the program 2. Identify ways to detect red flags 3. Include appropriate responses to red flags 4. Address new and changing risks through periodic program updates 5. Include a process for administration and oversight of the program On October 22, 2008, the Federal Trade Commission (FTC) extended the required enforcement of new "Red Flags Rule" from November 1, 2008 to May 1, 2009, to give creditors and financial institutions additional time in which to develop and implement written identity theft prevention programs. 1 Program Details Relevant Red Flags Red flags are warning signs or activities that alert a creditor to potential identity theft. The guidelines published by the FTC include 26 examples of red flags which fall into the five categories below: Alerts, notifications, or other warnings received from consumer reporting agencies or service providers Presentation of suspicious documents Presentation of suspicious personal identifying information Unusual use of, or other suspicious activity related to, a covered account Notice from customers, victims of identity theft, or law enforcement authorities After reviewing the FTC guidelines and examples, the Utility Billing Services Division determined that the following red flags are applicable to utility accounts. These red flags, and the appropriate responses, are the focus of this program. • Suspicious Documents and Activities • Documents provided for identification appear to have been altered or forged. • The photograph on the identification is not consistent with the physical appearance of the customer. o Other information on the identification is not consistent with information provided by the customer. • The SSN provided by the customer belongs to another customer in the City's Utility Billing Systems. • The customer does not provide required identification documents when attempting to establish a utility account or make a payment. • A customer refuses to provide proof of identity when discussing an established utility account. • A person other than the account holder or co- applicant requests information or asks to make changes to an established utility account. • A customer notifies the Utility Billing Services Division of any of the following activities: • Utility statements are not being received • Unauthorized changes to a utility account 2 • Unauthorized charges on a utility account • Fraudulent activity on the customer's bank account or credit card that is used to pay utility charges • The Utility Billing Services Division is notified by a customer, a victim of identity theft, or a member of law enforcement that a utilities account has been opened for a person engaged in identity theft. Detecting and Responding to Red Flags Red flags will be detected as Utility Services staff interact with customers. An employee will be alerted to these red flags during the following processes: • Enrolling the customer in the automatic bank draft program or process a Payment: The Accounting Technician may be presented with documents that appear altered or inconsistent with the information provided by the customer. Response: Do not establish the utility account or accept payment until the customer's identity has been confirmed. • Answering customer inquiries on the phone and at the counter: Someone other than the account holder or co- applicant may ask for information about a utility account or may ask to make changes to the information on an account. A customer may also refuse to verify their identity when asking about an account. Response: Inform the customer that the account holder or the co- applicant must give permission for them to receive information about the utility account. Do not make changes to or provide any information about the account, with one exception: The Accounting Technician may provide the outstanding amount due. • Receiving notification that there is unauthorized activity associated with a utility account Customers may call to alert the City about fraudulent activity related to their utility account and /or the bank account or credit card used to make payments on the account. Response: Verify the customer's identity, and notify the Accounting Supervisor immediately. Take the appropriate actions to correct the errors on the account, which may include: • Issuing a service order to connector disconnect services • Assisting the customer with deactivation of their payment method (credit card or automatic bank draft) Cl • Updating personal information on the utility account • Updating the mailing address on the utility account • Updating account notes to document the fraudulent activity • Adding a password to the account • Notifying and working with law enforcement officials • Receiving notification that a utilities account has been established for a person engaged in identity theft. Response: These issues should be escalated to the Accounting Supervisor immediately. The claim will be investigated, and appropriate action will be taken to resolve the issue as quickly as possible. Additional procedures that help to protect against identity theft include: • The City's Utility Billing System access is based on the role of the user. Only certain job classifications have access to the entire system. The Financial Services Division will investigate ways to reduce the number of paper receipts generated during credit card payment processing. • The Financial Services Division will ensure that service providers that receive and process utility billing information have programs in place to detect and prevent identity theft. 4 Administration and Oversight of the Program Designation of Authori The City Council of City of Arcadia designates the authority to develop, oversee, implement and administer the Program to the City Manager or his designee, Administrative Services Director. As part of the Administrative Services Director's oversight responsibilities for the Program, the Administrative Services Director is required to review and approve all material changes to the Program as necessary to address changing identity theft risks. The Administrative Services Director is also responsible for reviewing reports prepared by The City's staff regarding the compliance with FACTA and the Red Flag Rules requiring the implementation of an Identity Theft Prevention Program. Specific roles are as follows: The Accounting Supervisor will submit an annual report to the Financial Services Manager/Treasurer and the Administrative Services Director. The Accounting Supervisor will also oversee the daily activities related to identity theft detection and prevention, and ensure that all members of the Utility Division staff are trained to detect and respond to red flags. The Financial Services Manager/Treasurer will provide ongoing oversight to ensure that the program is effective. The Administrative Services Director will review the annual report and approve recommended changes to the program, both annually and on an as- needed basis. Annual Reporting: The annual report will address the effectiveness of the program, documents significant incidents involving identity theft and related responses, provides updates related to external service providers, and includes recommendations for material changes to the program. The report will be reviewed annually and with continuing updates to the Identity Theft Prevention Program based on the following events: • Experience with identity theft • Changes to the types of accounts and /or programs offered • Implementation of new systems and /or new vendor contracts E STAFF REPORT Office of the City Attorney Date: December 2, 2008 TO: HONORABLE MAYOR AND CITY COUNCIL FROM: STEPHEN P. DEITSCH, CITY ATTORNEY'� P PREPARED BY: LISA MUSSENDEN, CHIEF DEPUTY CITY CLERK/RECORDS MANAGER SUBJECT: RESOLUTION NO. 6657 APPROVING AND ADOPTING AN AMENDED APPENDIX TO THE CITY'S CONFLICT OF INTEREST CODE PURSUANT TO THE POLITICAL REFORM ACT OF 1974 Recommendation: Adopt SUMMARY The Political Reform Act of 1974, Government Code Section 81000, et seq., requires every local agency to review its conflict of interest code biennially to determine if it is accurate or, alternatively, if the code must be amended. The City has created, revised and reclassified various City employee positions. As a result, the City is required to revise the City's list of Designated Employees (Appendix — Exhibit "A ") contained in the City's Conflict of Interest Code in order to cover the revised and reclassified employee positions. The proposed amendment includes new positions that must be designated, revises titles of existing positions and deletes positions that have been abolished. DISCUSSION Section 87306 of the Act requires that conflict of interest codes be amended for changed circumstances such as the creation of new positions which must be designated and relevant changes in the duties assigned to existing positions. The primary effect of the Code is to establish conflict of interest disclosure and disqualification requirements for various City positions that make or participate in the making of the requisite level of decision - malting as set forth in the Political Reform Act. This Act requires each city to adopt a local conflict of interest code which designates city positions not designated in the Act itself, that are involved in malting city decisions. FISCAL IMPACT None RECOMMENDATION It is recommended that the City Council adopt Resolution No. 6657 approving and adopting an amended appendix to the City's Conflict of Interest Code pursuant to the Political Reform Act of 1974. APPROVED: Donald Penman City Manager Attachment — Resolution No. 6657 RESOLUTION NO. 6657 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ARCADIA, CALIFORNIA, APPROVING AND ADOPTING AN AMENDED APPENDIX TO THE CONFLICT OF INTEREST CODE PURSUANT TO THE POLITICAL REFORM ACT OF 1974 WHEREAS, the Legislature of the State of California enacted the Political Reform Act of 1974, Government Code Section 81000, et seq. (the "Act "), which contains provisions relating to conflicts of interest governing officers, employees and consultants of the City of Arcadia (the "City"), and which requires all public agencies to adopt and promulgate a conflict of interest code; and WHEREAS, the City Council has adopted a Conflict of Interest Code (the "Code ") which was most recently amended on December 5, 2006, in compliance with the Act; and WHEREAS, subsequent changed circumstances within the City have made it advisable and necessary pursuant to Sections 87306 and 87307 of the Act to amend and update the Appendix to the City's Code; and WHEREAS, the potential penalties for violation of the provisions of the Act are significant and may include criminal and civil liability, as well as equitable relief which could result in the City being restrained or prevented from acting in cases where the provisions of the Act may have been violated; and -1- WHEREAS, notice of the time and place of a public meeting on, and of consideration by the City Council of, the proposed amended Appendix of the Code was provided to each affected designated employee and was publicly posted for review at the office of the City Clerk; and WHEREAS, a public meeting was held regarding the proposed amended Appendix of the Code at a regular meeting of the City Council on December 2, 2008, at which all persons present were given an opportunity to be heard on the proposed amended Appendix. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ARCADIA, CALIFORNIA, DOES HEREBY FIND, DETERMINE AND RESOLVE AS FOLLOWS: SECTION 1. The City Council does hereby approve and adopt the proposed amended Appendix to the City's Conflict of Interest Code, a copy of which is attached hereto and which shall remain on file with the City Cleric together with a complete copy of the City's Conflict of Interest Code and which shall remain available to the public for inspection and copying during regular business hours. SECTION 2. The amended Appendix to the City's Conflict of Interest Code shall become effective thirty (30) days after the date of its adoption and approval. SECTION 3. The City Clerk shall certify to the adoption of this Resolution. -2- Passed, approved and adopted this day of , 2008. Mayor of the City of Arcadia ATTEST: City Clerk of the City of Arcadia APPROVED AS TO FORM: �� ().'ac � Stephen P. Deitsch City Attorney -3- LAW OFFICES OF BEST BEST S KRIEGER LLP APPENDIX CONFLICT OF INTEREST CODE OF THE CITY OF ARCADIA (Amended December 2, 2008) EXHIBIT "A" The Mayor, Members of the City Council and Planning Commission, the City Manager, the City Attorney, the City Treasurer, and all Other City Officials who manage public investments as defined by 2 Cal. Code of Regs. § 18701(b), are NOT subject to the City's Code but are subject to the disclosure requirements of the Act. (Government Code Section 87200 et seg.). [Regs. § 18730(b)(3)] OFFICIALS WHO MANAGE PUBLIC INVESTMENTS It has been determined that the positions listed below are Other City Officials who manage public investments 3 . These positions are listed here for informational purposes only. Financial Services Manager Financial Consultant 3 Individuals holding one of the above- listed positions may contact the FPPC for assistance or written advice regarding their filing obligations if they believe that their position has been categorized incorrectly. The FPPC makes the final determination whether a position is covered by § 87200. -20- BBK — December 2008 RV PU9IDVALDEZV55474.3 LAW OFFICES OF BEST BEST & KRIEGER LLP DESIGNATED POSITIONS GOVERNED BY THE CONFLICT OF INTEREST CODE DESIGNATED EMPLOYEES' DISCLOSURE CATEGORIES TITLE OR FUNCTION ASSIGNED Accounting Supervisor 5 Administrative Assistant, Sr. (ALL) 6 Administrative Services Director 5 Assistant Engineer (ALL) 2, 3, 7 Assistant Planner 2, 3, 6, 7 Associate Civil Engineer (ALL) 2, 3, 6 Associate Planner 2, 3, 6, 7 Building Official 2, 3, 6, 7 Business License Officer 6,7 Chief Deputy City Clerk/ Records Manager 6 Chief of Police 6,7 City Attorney (not filing under Gov. Code §87200) 1,2 City Clerk 6 Code Services Officer (ALL) 6,7 Combination Inspector (ALL) 2, 3, 6, 7 Communications and Marketing Specialist (ALL) 6 Communications, Marketing and Special Projects Manager 1,2 Community Development Administrator 1, 2 Deputy City Clerk 6 -21- BBK— December 2008 RV POB\DV ALDE ZN755474.3 LAW OFFICES OF BEST BEST & KRIEGER LLP DESIGNATED EMPLOYEES' DISCLOSURE CATEGORIES TITLE OR FUNCTION ASSIGNED Deputy Director of Development Services /City Engineer 1, 2 Deputy Fire Chief 2, 3, 6, 7 Deputy Fire Marshal 6, 7 Deputy Public Works Services Director 1,2 Development Services Director 1.2 Director of Library and Museum Services 6 Director of Recreation and Community Services 2, 3, 6 Economic Development Manager 1,2 Engineering Assistant (ALL) 3,7 Fire Administrative Specialist 6 Fire Battalion Chief (ALL) 6 Fire Captain 6,7 Fire Chief 2, 3, 6, 7 Fire Inspector 6.7 Fire Marshal 6, 7 General Services Superintendent 6 Historical Museum Curator 6 Human Resources Administrator 6 Human Resources Analyst 6 Human Resources Technician 6 Information Systems Manager 6 -22- BBK— December 2008 RVPUMDV A LDEZV55474.3 LAW OFF10E5 OF BEST BEST & KRIEGER LLP DESIGNATED EMPLOYEES' DISCLOSURE CATEGORIES TITLE OR FUNCTION ASSIGNED Library Services Manager (ALL) 6 Maintenance Contract Officer 6 Management Aide 6 Management Analyst (ALL) 6 Police Captain (ALL) 6,7 Police Lieutenant (ALL) 6,7 Police Records Manager 6 Principal Civil Engineer 1,2 Principal Librarian (ALL) 6 Public Works Inspector 2, 3, 7 Public Works Services Director 1,2 Public Works Coordinator 6,7 Purchasing Officer 5 Recreation Coordinator 6 Recreation Supervisor 6 Revenue Collection Specialist 1,2 Senior Citizens Supervisor 6 Senior Civil Engineer 2, 3, 6, 7 Senior Planner 2, 3, 6, 7 Storekeeper /Buyer 6 Streets Superintendent 6 -23- BBK — December ?008 RV PUB \DV ALDEZ\755474.3 LAW OFFICES OF BEST BEST S KRIEGER LLP DESIGNATED EMPLOYEES' TITLE OR FUNCTION Transportation Manager Utilities Superintendent Warehouse Manager Water Quality /Backflow Inspector Youth Services Supervisor DISCLOSURE CATEGORIES ASSIGNED 6 2, 3, 7 6 6 6 MEMBERS OF BOARDS, COMMISSIONS AND COMMITTEES Homeowners Assn. Architectural Review Board Library Board of Trustees 1.2 2, 3, 6 Consultant 4 Consultants shall be included in the list of Designated Employees and shall disclose pursuant to the broadest disclosure category in this Code subject to the following limitation: The City Manager may determine in writing that a particular consultant, although a "designated position," is hired to perform a range of duties that are limited in scope and thus is not required to fully comply with the disclosure requirements described in this Section. Such written determination shall include a description of the consultant's duties and, based upon that description, a statement of the extent of disclosure requirements. The City Manager's determination is a public record and shall be retained for public inspection in the same manner and location as this Conflict of Interest Code. -24- BBK— December 2008 R VPUBWVALDEZ \755474.) LAW OFFICES OF BEST BEST & KRIEGER LLP EXHIBIT "B" DISCLOSURE CATEGORIES The disclosure categories listed below identify the types of investments, business entities, sources of income, including gifts, loans and travel payments, or real property which the Designated Employee must disclose for each disclosure category to which he or she is assigned. Category 1 : All investments and business positions in business entities, and sources of income, that are located in, do business in or own real property within the jurisdiction of the City. Category 2 : All interests in real property which is located in whole or in part within, or not more than two (2) miles outside, the jurisdiction of the City. Category 3 : All investments and business positions in, and sources of income from, business entities that are engaged in land development, construction, or the acquisition or sale of real property within the jurisdiction of the City. Category 4 : All investments and business positions in, and sources of income from, business entities that are banking, savings and loan, or other financial institutions. Category 5 : All investments and business positions in, and sources of income from, business entities that provide services, supplies, materials, machinery, vehicles or equipment of a type purchased or leased by the City. Category 6 : All investments and business positions in, and sources of income from, business entities that provide services, supplies, materials, machinery, vehicles or equipment of a type purchased or leased by the Designated Employee's Department. Category 7 : All investments and business positions in, and sources of income from, business entities subject to the regulatory, permit, or licensing authority of the Designated Employee's Department. -25- BBK— December 2008 R V PUB \D V ALDEZ\755474.3 a DATE: December 2, 2008 Office of the City Manager TO: Mayor and City Council FROM: Donald Penman, City Manager 9 By: Linda Garcia, Com unications, Marketing and Special Projects Manager SUBJECT: ONE -YEAR EXTENSION IN THE AMOUNT OF $65,000.00 TO SUMMARY The City of Arcadia has utilized the services of The Ferguson Group since 1996 for the purpose of obtaining federal funding for City projects. The current Professional Services Agreement with The Ferguson Group expires on December 31, 2008. Based on the City's positive experience with the company and the desire to use their services in the future, staff is recommending that the City Council approve a one -year extension (Amendment No. 6) to the Professional Services Agreement between the City of Arcadia and The Ferguson Group. DISCUSSION The depressed economic situation the country is facing has created serious challenges for cities in terms of paying for capital expenditures, whether they be infrastructure or equipment related. Arcadia's ability to bring to fruition certain infrastructure and facility improvements, as well as to be able to purchase certain equipment, has been aided significantly by the use of federal funds obtained with the assistance of The Ferguson Group. Money has been received for such projects as traffic and street improvements, counter - terrorism training, the Ruth and Charles Gilb Arcadia Historical Museum, and the most significant and ongoing funding has been for joint Arcadia /Sierra Madre water improvement projects that are designed to ensure the integrity of our water system and the safety and reliability of drinking water in the event of a major seismic incident. Since the City first retained The Ferguson Group, millions of dollars have been secured through our federal lobbying efforts. Recommendation: Approve Mayor and City Council — PSA Extension for The Ferguson Group December 2, 2008 Page 2 Although the current climate in Washington, D.C. is not necessarily favorable to earmarks and appropriations, staff believes that continuing the City's partnership with The Ferguson Group is a worthwhile investment for Arcadia. Members of The Ferguson Group's team are knowledgeable about the funding process and the type of money that is available. They are able to assist us in developing a lobbying program that has the best chance for success, and their familiarity and experience in navigating the Washington political community has been, and will continue to be, very helpful. Additionally, there are significant discussions in Washington about a federal stimulus package targeted for public infrastructure projects. Should such a program be approved, the Ferguson Group's expertise would be exceptionally valuable to the City. For these reasons, staff is asking the City Council to authorize a one -year extension to the City's Professional Services Agreement with The Ferguson Group. FISCAL IMPACT The Ferguson Group has agreed to maintain the current annual fee of 65,000.00. This retainer includes unlimited hours of monthly service and overhead expenses. As in the past, the cost will be shared among the General Fund (35 %), the Water Fund (50 %) and the Redevelopment Agency (15 %). RECOMMENDATION It is recommended that the City Council authorize the City Manager to execute a one -year extension in the amount of $65,000.00 to the Professional Services Agreement between the City of Arcadia and The Ferguson Group for federal legislative advocacy services. CO0j0 °°I[y °[H °� °♦ STAFF REPORT Public Works Services Department DATE: December 2, 2008 TO: Mayor and City Council FROM: Pat Malloy, Assistant City Manager /Public Works Services Dire 4r Prepared by: Maria P. Aquino, Management Analyst SUBJECT: SUMMARY At the November 18 Council meeting, City Council conducted a Public Hearing to consider all protests and subsequently closed the ballot proceedings at the conclusion of the Public Hearing for the Citywide Street Lighting Assessment District. A total of 4,987 valid ballots were received. The results of the ballots include the following: 2,457 ballots voted "Yes" with a total weighted assessment of $62,194.26 while 2,530 ballots voted "No" having a total weighted assessment of $83,380.82. According to the Landscaping and Lighting Act of 1972, for the ballot to pass, the total amount of "Yes" ballot assessments must be equal to or exceed the total amount of "No" ballot assessments. Based on the result of the ballots received, a majority protest exists and therefore, staff is requesting the City Council to abandon the formation of the Citywide Street Lighting Assessment District and adopt Resolution 6661. DISCUSSION Following the Council's approval of the property owner balloting process on September 2, approximately 14,600 ballots were mailed to the property owners on October 3, 2008, in accordance with Proposition 218, at least 45 days before the date of the Public Hearing. Extensive public outreach efforts were conducted by staff including flyers, Hot Page 1 of 3 Recommendation: Adopt Mayor and City Council December 2, 2008 Sheet publication, water bill inserts, property owner meetings, and presentations to Chamber of Commerce and Board Commissioners. At the November 18 Council meeting, City Council conducted a Public Hearing to consider all protests and subsequently closed the ballot proceedings at the conclusion of the Public Hearing for the Citywide Street Lighting Assessment District. City Council directed staff to review and tabulate the ballots and report the results back for the Dec. 2 Council meeting. Ballot Results A total of 4,987 valid ballots were received. The results of the ballots include the following: 2,457 ballots voted "Yes" with a total weighted assessment of $62,194.26 while 2,530 ballots voted "No" having a total weighted assessment of $83,380.82. According to the Landscaping and Lighting Act of 1972, for the ballot to pass, the total amount of "Yes" ballot assessments must be equal to or exceed the total amount of "No" ballot assessments. Based on the results.of the ballots received, a majority protest exists and therefore, staff is requesting the City Council to abandon the formation of the Citywide Street Lighting Assessment District and adopt Resolution 6661. For the Council's information, the ballots for an assessment district election are a public record and are available for the public to review. Staff will be analyzing the results to determine if those trends whereby certain groups of property owners (i.e. single - family, multi - family, commercial, etc.) tended to support or oppose the new levy. FISCAL IMPACT The total proposed citywide lighting budget assessment is $883,764 with 14,600 parcels to be levied. Per City Council's direction, the proposed budget assessment for the general fund's portion is $479,870 (the City's street lighting contribution), while the special benefit or the District's portion is $403,894. The District's share is based on its current contribution to the lighting system plus District administration and portion of rehabilitation costs. The current street lighting assessment will expire in June 30, 2010. Since the District balloting failed, the City will lose its annual revenues that are normally collected from the District's assessments. Therefore, the City's General Fund will bear the entire cost for the Citywide street lighting maintenance and operations expenses when the existing District expires in 2010, or the City Council could determine to reduce the level of street lighting within the community to reduce expenses. The City will have one more fiscal year to continue with the current assessment practice. Page 2 of 3 Mayor and City Council December 2, 2008 RECOMMENDATION Adopt Resolution No. 6661 declaring the results of the property owner protest ballot proceedings conducted for the proposed levy of assessments related to the formation of the Arcadia Citywide Lighting District 2009 -1, commencing in fiscal year 2009110. Approved by: DaI4� Pcv Donald Penman, City Manager PM:MA:ma Attachments Page 3 of 3 RESOLUTION NO. 6661 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ARCADIA, CALIFORNIA, DECLARING THE RESULTS OF THE PROPERTY OWNER PROTEST BALLOT PROCEEDINGS CONDUCTED FOR THE PROPOSED LEVY OF ASSESSMENTS RELATED TO THE FORMATION OF THE ARCADIA CITYWIDE LIGHTING DISTRICT 2009 -1, COMMENCING IN FISCAL YEAR 2009/2010 WHEREAS, the City Council of the City of Arcadia (the "City ") pursuant to the provisions of the Landscaping and Lighting Act of 1972, being Part 2, Division 15 of the California Streets and Highways Code, commencing with Section 22500 (hereafter referred to as the "Act'), did by previous resolutions, initiate proceedings for the formation of the Arcadia Citywide Lighting District 2009 -1 (hereafter referred to as the "District'), and declared its intention to conduct a protest balloting for the levy of new assessments within the District commencing in Fiscal Year 2009/2010 for the special benefits received by properties therein from the improvements related thereto; and WHEREAS, in accordance with the provisions of the California Constitution, Article XIIID, the City Council has caused and conducted a property owner protest ballot proceeding for the proposed new assessments to be levied on properties within the District; and WHEREAS, the assessments presented to each property owner of record within the District reflect each property's proportional special benefit and financial obligation for the costs and expenses related to the maintenance, servicing and operation of local lighting improvements therein as authorized by the Act and the provisions of the California Constitution. The notice and ballot presented to the property owners of record clearly identified the total amount balloted to all properties, the proposed assessment rate, the property's proportional annual amount commencing with Fiscal Year 2009/2010 and the inflationary adjustment applicable to future assessments; and WHEREAS, upon the close of the Public Hearing held on November 18, 2008 the protest ballots returned by the landowners of record within the District, were opened and tabulated, the results of which are illustrated below: Yes: $62,194.26 No: $83,380.82 NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ARCADIA, CALIFORNIA, DOES HEREBY FIND, DETERMINE AND RESOLVE AS FOLLOWS: SECTION 1. The preceding recitals are all true and correct. SECTION 2. The protest ballot proceedings were conducted with the notices and ballots of the proposed new assessments presented to the qualified property owners of record within the District as required by law, with a required receipt of the returned ballots to the City Clerk prior to the close of the Public Hearing on November 18, 2008. SECTION 3. The canvass of the protest ballots cast for the proposed District and received prior to the close of the public hearing, weighted according to the proportional financial obligation of the affected properties is hereby approved and confirmed. SECTION 4. The City Clerk is hereby directed to enter this Resolution on the minutes of this meeting, which shall constitute the official declaration of the result of such property owner protest ballot proceeding. SECTION 5. This Resolution shall become effective immediately upon its adoption. SECTION 6. The City Clerk shall certify the adoption of this Resolution. 3 Passed approved and adopted this day of 2008. Mayor of the City of Arcadia ATTEST: City Clerk APPROVED AS TO FORM: Stephen P. Deitsch City Attorney STAFF REPORT Office of the City Attorney DATE: December 2, 2008 TO: Honorable Mayor and City Council Members FROM: Stephen P. Deitsch, City Attorney S P. SUBJECT: ORDINANCES AND RESOLUTIONS TO SET ASIDE AND REPEAL APPROVALS RELATED TO THE SHOPS AT SANTA ANITA PARK SPECIFIC PLAN PROJECT AND THE ASSOCIATED FINAL ENVIRONMENTAL IMPACT REPORT Recommendation: Approve all SUMMARY At its meeting on April 17, 2007, the City Council adopted three resolutions (Nos. 6564, 6565, and 6566) approving various aspects of The Shops at Santa Anita Park Specific Plan Project ( "Project ") and the related Final Environmental Impact Report ( "EIR "). At its May 1, 2007 meeting, the City Council adopted three ordinances (Nos. 2226, 2227, and 2228) also related to approving various aspects of the Project. Since the adoption of these resolutions and ordinances, a court order has made it necessary to set aside and void certification of the Final EIR for the Project and set aside and void approvals granted by the City of Arcadia ( "City ") in relation to the Project. DISCUSSION The Project at issue is a large commercial, retail and office development that was conceived as a pedestrian- oriented Main Street type center. Pursuant to the California Environmental Quality Act ( "CEQA "), the City undertook environmental review of the Project through the preparation of an EIR. At its April 17, 2007 public meeting, the City considered three separate resolutions related to the Project, all of which were approved. The first, Resolution No. 6564, adopted environmental findings and a statement of overriding considerations related to the Project and certified the Final EIR for the Project. The second, Resolution No. 6565, approved General Plan Amendment No. 05 -01, which changed the land use designation of certain property in the City from "Horse Racing" and "Commercial" to "The ,Shops at Santa Anita Park Specific Plan Project" and made various text amendments to the General Plan. The third, Resolution No. 6566, approved Architectural Design Review and Design Guidelines for the Project. At its May 1, 2007 public meeting, the City considered three separate ordinances related to the Project, all of which were adopted. The first, Ordinance No. 2226, adopted the "Shops at Santa Anita Park Specific Plan" and specific land use regulations with respect to the Project. The second, Ordinance No. 2227, made amendments to the text of the Arcadia Zoning Code to add a "Commercial - Entertainment" zone and amended the zoning designation of certain property within the City from "S -1" and "R -1" to "SP S -1 ", "SP R -1 ", and "SP CE" with respect to the Project. The third, Ordinance No. 2228, approved a Development Agreement relating to the Project between the City and Santa Anita Associates, LLC. In mid May, 2007, Westfield, LLC et al. and Arcadia First! brought separate petitions for writ of mandate challenging the Project under CEQA (among other things) in the Los Angeles Superior Court. The City, along with the Project developer, fully contested these petitions on all counts. After extensive briefing and hearing, on October 15, 2008, the Court entered a partial Judgment for the Petitioners, in which the Court granted the writ petitions in part and ruled that the City must set aside and void approvals granted for the Project until additional environmental review is prepared. On October 22, 2008, a Peremptory Writ of Mandate was issued by the Court stating that not more than fifty (50) days after service of the Writ; the City must set aside and void certification of the Final EIR and the approvals granted by the City in relation to the Project. In order to fully comply with the Court's ruling, three resolutions and three ordinances have been drafted repealing all approvals related to the Project and decertifying the Final EIR for the Project. Each resolution or ordinance that was approved in relation to the Project will be repealed by a corresponding resolution or ordinance. FISCAL IMPACT There is no fiscal impact associated with approving the resolutions and ordinances repealing and setting aside all approvals related to the Project. N RECOMMENDATION That the City Council adopt the attached three resolutions and introduce the attached three ordinances in order to repeal and set aside all approvals related to the Shops at Santa Anita Park Specific Plan Project and the associated Final Environmental Impact Report. The resolutions and ordinances are as follows: Adopt Resolution No. 6658 decertifying the final Environmental Impact Report for the Shops at Santa Anita Park Specific Plan Project and repealing adoption of Resolution No. 6564 which concerned environmental findings pursuant to the California Environmental Quality Act, Statement of Overriding Considerations, and a Mitigation Monitoring and Reporting Program. Resolution No. 6659 repealing Resolution No. 6565 which concerned General Plan Amendment No. 05 -01 pertaining to "The Shops at Santa Anita Park Specific Plan." Resolution No. 6660 repealing Resolution No. 6566 which concerned approval of Architectural Design Review and Design Guidelines with respect to the Shops at Santa Anita Park Project. Introduce Ordinance No. 2252 repealing Ordinance No. 2228 which concerned a Development Agreement between the City of Arcadia and Santa Anita Associates, LLC. Ordinance No. 2253 repealing Ordinance No. 2226 which concerned the adoption of "The Shops at Santa Anita Park Specific Plan." Ordinance No. 2254 repealing Ordinance No. 2227 which concerned zoning changes pertaining to the Shops at Santa Anita Park Project. APPROVED: T �ir - a✓ Donald Penman City Manager 3 RESOLUTION NO. 6658 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ARCADIA DECERTIFYING THE FINAL ENVIRON- MENTAL IMPACT REPORT FOR THE SHOPS AT SANTA ANITA PARK SPECIFIC PLAN PROJECT AND REPEALING ADOPTION OF RESOLUTION NO. 6564 WHICH CONCERNED ENVIRONMENTAL FINDINGS PURSUANT TO THE CALIFORNIA ENVIRONMENTAL QUALITY ACT, STATEMENT OF OVERRIDING CONSIDERATIONS, AND A MITIGATION MONITORING AND REPORTING PROGRAM WHEREAS, on April 17, 2007, the City Council of the City of Arcadia ( "City ") adopted Resolution No. 6564 certifying the Final Environmental Impact Report ( "EIR ") (State Clearinghouse No. 2005031131) prepared for the Shops at Santa Anita Park Specific Plan Project (the "Project') and adopting the environmental findings pursuant to the California Environmental Quality Act ( "CEQA "), a statement of overriding considerations, and a mitigation monitoring and reporting program for the Project; and WHEREAS, on April 17, 2007, the City Council adopted Resolution No. 6565 adopting General Plan Amendment No. 05 -01, which changed the land use designation of certain property under the Arcadia General Plan from "Horse Racing" and "Commercial" to "The Shops at Santa Anita Park Specific Plan" and made various text amendments to the Arcadia General Plan with regard to the Project; and 1 WHEREAS, on April 17, 2007, the City Council adopted Resolution No. 6566 approving Architectural Design Review and Design Guidelines with respect to the Project and imposed conditions of approval on the Project; and WHEREAS, on May 1, 2007, the City Council adopted Ordinance No. 2226 adopting the "Shops at Santa Anita Park Specific Plan" and the specific land use regulations contained therein with respect to the Project; and WHEREAS, on May 1, 2007, the City Council adopted Ordinance No. 2227 making certain amendments to the text of the Arcadia Zoning Code to add a "Commercial Entertainment" Zone and regulations with respect thereto and amending the zoning designation of certain property within the City from "S -1" and "R -l" to "SP S -1 ", "SP R -1" and "SP CE" with respect to the Project; and WHEREAS, on May 1, 2007, the City Council adopted Ordinance No. 2228 approving a Development Agreement between the City and Santa Anita Associates, LLC; and WHEREAS, on May 15, 2007, Westfield, LLC et al. filed a Petition for Writ of Mandate in the Los Angeles County Superior Court (Case No. BS103923) challenging the Project and alleging that the Final EIR for the Project was deficient, and that the Project was inconsistent with the Arcadia General Plan and the Arcadia Municipal Code; and 2 i WHEREAS, on May 17, 2007, Arcadia First! filed a Petition for Writ of Mandate in the Los Angeles County Superior Court (Case No. BS108937) challenging the Project and alleging that the Final EIR for the Project was deficient; and WHEREAS, on October 15, 2008, after full briefing and hearing, the Court entered Judgment in part for the Petitioners, in which the Court granted the Petitions in part and ordered the City of Arcadia to set aside and void all approvals granted for the Project; and WHEREAS, on October 22, 2008, a Peremptory Writ of Mandate was issued by the Court stating that not more than fifty (50) days after service of the Writ, the City must set aside and void certification of the Final EIR for the Project and set aside and void approvals granted by the City in relation to the Project; and WHEREAS, the City desires and intends to comply with the Peremptory Writ of Mandate. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ARCADIA DOES RESOLVE AS FOLLOWS: SECTION 1. The City Council hereby specifically finds that all of the facts set forth in the recitals of this Ordinance are true and correct. 3 SECTION 2. Pursuant to Court Order, the City Council hereby repeals, vacates and sets aside Resolution No. 6564. SECTION 3. The City Clerk shall certify to the adoption of this Resolution. Passed, approved and adopted this day of i Mayor of the City of Arcadia ATTEST: City Clerk APPROVED AS TO FORM: f � P Stephen P. Deitsch City Attorney 12 RESOLUTION NO. 6659 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ARCADIA REPEALING RESOLUTION NO. 6565 WHICH CONCERNED GENERAL PLAN AMENDMENT NO. 05 -01 PERTAINING TO "THE SHOPS AT SANTA ANITA PARK SPECIFIC PLAN" WHEREAS, on April 17, 2007, the City Council of the City of Arcadia ( "City") adopted Resolution No. 6564 certifying the Final Environmental Impact Report ( "EIR ") (State Clearinghouse No. 2005031131) prepared for the Shops at Santa Anita Park Specific Plan Project (the "Project ") and adopting the environmental findings pursuant to the California Environmental Quality Act ( "CEQA "), a statement of overriding considerations, and a mitigation monitoring and reporting program for the Project; and WHEREAS, on April 17, 2007, the City Council adopted Resolution No. 6565 adopting General Plan Amendment No. 05 -01, which changed the land use designation of certain property under the Arcadia General Plan from "Horse Racing" and "Commercial" to "The Shops at Santa Anita Park Specific Plan" and made various text amendments to the Arcadia General Plan with regard to the Project; and WHEREAS, on April 17, 2007, the City Council adopted Resolution No. 6566 approving Architectural Design Review and Design Guidelines with respect 1 to the Project and imposed conditions of approval on the Project; and WHEREAS, on May 1, 2007, the City Council adopted Ordinance No. 2226 adopting the "Shops at Santa Anita Park Specific Plan" and the specific land use regulations contained therein with respect to the Project; and WHEREAS, on May 1, 2007, the City Council adopted Ordinance No. 2227 making certain amendments to the text of the Arcadia Zoning Code to add a "Commercial Entertainment" Zone and regulations with respect thereto and amending the zoning designation of certain property within the City from "S -1" and "R -1" to "SP S -1 ", "SP R -1" and "SP CE" with respect to the Project; and WHEREAS, on May 1, 2007, the City Council adopted Ordinance No. 2228 approving a Development Agreement between the City and Santa Anita Associates, LLC; and WHEREAS, on May 15, 2007, Westfield, LLC et al. filed a Petition for Writ of Mandate in the Los Angeles County Superior Court (Case No. BS103923) challenging the Project and alleging that the Final EIR for the Project was deficient, and that the Project was inconsistent with the Arcadia General Plan and the Arcadia Municipal Code; and 2 WHEREAS, on May 17, 2007, Arcadia First! filed a Petition for Writ of Mandate in the Los Angeles County Superior Court (Case No. BS108937) challenging the Project and alleging that the Final EIR for the Project was deficient; and WHEREAS, on October 15, 2008, after full briefing and hearing, the Court entered Judgment in part for the Petitioners, in which the Court granted the Petitions in part and ordered the City of Arcadia to set aside and void all approvals granted for the Project; and WHEREAS, on October 22, 2008, a Peremptory Writ of Mandate was issued by the Court stating that not more than fifty (50) days after service of the Writ, the City must set aside and void certification of the Final EIR for the Project and set aside and void approvals granted by the City in relation to the Project; and WHEREAS, the City desires and intends to comply with the Peremptory Writ of Mandate. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ARCADIA DOES RESOLVE AS FOLLOWS: SECTION 1. The City Council hereby specifically finds that all of the facts set forth in the recitals of this Ordinance are true and correct. 3 SECTION 2. Pursuant to Court Order, the City Council hereby repeals, vacates and sets aside Resolution No. 6565. SECTION 3. The City Clerk shall certify to the adoption of this Resolution. Passed, approved and adopted this day of 11: ATTEST: City Clerk APPROVED AS TO FORM: Stephen P. Deitsch City Attorney Mayor of the City of Arcadia rd RESOLUTION NO. 6660 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ARCADIA REPEALING RESOLUTION NO. 6566 WHICH CONCERNED APPROVAL OF ARCHITECTURAL DESIGN REVIEW AND DESIGN GUIDELINES WITH RESPECT TO THE SHOPS AT SANTA ANITA PARK PROJECT WHEREAS, on April 17, 2007, the City Council of the City of Arcadia ( "City") adopted Resolution No. 6564 certifying the Final Environmental Impact Report ( "EIR ") (State Clearinghouse No. 2005031131) prepared for the Shops at Santa Anita Park Specific Plan Project (the "Project') and adopting the environmental findings pursuant to the California Environmental Quality Act ( "CEQA "), a statement of overriding considerations, and a mitigation monitoring and reporting program for the Project; and WHEREAS, on April 17, 2007, the City Council adopted Resolution No. 6565 adopting General Plan Amendment No. 05 -01, which changed the land use designation of certain property under the Arcadia General Plan from "Horse Racing" and "Commercial" to "The Shops at Santa Anita Park Specific Plan" and made various text amendments to the Arcadia General Plan with regard to the Project; and WHEREAS, on April 17, 2007, the City Council adopted Resolution No. 6566 approving Architectural Design Review and Design Guidelines with respect 1 to the Project and imposed conditions of approval on the Project; and WHEREAS, on May 1, 2007, the City Council adopted Ordinance No. 2226 adopting the "Shops at Santa Anita Park Specific Plan" and the specific land use regulations contained therein with respect to the Project; and WHEREAS, on May 1, 2007, the City Council adopted Ordinance No. 2227 making certain amendments to the text of the Arcadia Zoning Code to add a "Commercial Entertainment" Zone and regulations with respect thereto and amending the zoning designation of certain property within the City from "S -1" and "R -1" to "SP S - I ", "SP R- I " and "SP CE" with respect to the Project; and WHEREAS, on May 1, 2007, the City Council adopted Ordinance No. 2228 ' approving a Development Agreement between the City and Santa Anita Associates, LLC; and WHEREAS, on May 15, 2007, Westfield, LLC et al. filed a Petition for Writ of Mandate in the Los Angeles County Superior Court (Case No. BS103923) challenging the Project and alleging that the Final EIR for the Project was deficient, and that the Project was inconsistent with the Arcadia General Plan and the Arcadia Municipal Code; and 2 WHEREAS, on May 17, 2007, Arcadia First! filed a Petition for Writ of Mandate in the Los Angeles County Superior Court (Case No. BS108937) challenging the Project and alleging that the Final EIR for the Project was deficient; and WHEREAS, on October 15, 2008, after full briefing and hearing, the Court entered Judgment in part for the Petitioners, in which the Court granted the Petitions in part and ordered the City of Arcadia to set aside and void all approvals granted for the Project; and WHEREAS, on October 22, 2008, a Peremptory Writ of Mandate was issued by the Court stating that not more than fifty (50) days after service of the Writ, the City must set aside and void certification of the Final EIR for the Project and set aside and void approvals granted by the City in relation to the Project; and WHEREAS, the City desires and intends to comply with the Peremptory Writ of Mandate. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ARCADIA DOES RESOLVE AS FOLLOWS: SECTION 1. The City Council hereby specifically finds that all of the facts set forth in the recitals of this Ordinance are true and correct. 3 SECTION 2. Pursuant to Court Order, the City Council hereby repeals, vacates and sets aside Resolution No. 6566. SECTION 3. The City Clerk shall certify to the adoption of this Resolution. Passed, approved and adopted this day of 11: ATTEST: City Clerk APPROVED AS TO FORM: � bt4,� Steph City Attorney Mayor of the City of Arcadia 12 ORDINANCE NO. 2252 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ARCADIA REPEALING ORDINANCE NO. 2228 WHICH CONCERNED A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF ARCADIA AND SANTA ANITA ASSOCIATES, LLC WHEREAS, on April 17, 2007, the City Council of the City of Arcadia ( "City ") adopted Resolution No. 6564 certifying the Final Environmental Impact Report ( "EIR ") (State Clearinghouse No. 2005031131) prepared for the Shops at Santa Anita Park Specific Plan Project (the "Project ") and adopting the environmental findings pursuant to the California Environmental Quality Act ( "CEQA "), a statement of overriding considerations, and a mitigation monitoring and reporting program for the Project; and WHEREAS, on April 17, 2007, the City Council adopted Resolution No. 6565 adopting General Plan Amendment No. 05 -01, which changed the land use designation of certain property under the Arcadia General Plan from "Horse Racing" and "Commercial" to "The Shops at Santa Anita Park Specific Plan" and made various text amendments to the Arcadia General Plan with regard to the Project; and WHEREAS, on April 17, 2007, the City Council adopted Resolution No. 6566 approving Architectural Design Review and Design Guidelines with respect to the Project and imposed conditions of approval on the Project; and I WHEREAS, on May 1, 2007, the City Council adopted Ordinance No. 2226 adopting the "Shops at Santa Anita Park Specific Plan" and the specific land use regulations contained therein with respect to the Project; and WHEREAS, on May 1, 2007, the City Council adopted Ordinance No. 2227 making certain amendments to the text of the Arcadia Zoning Code to add a "Commercial Entertainment" Zone and regulations with respect thereto and amending the zoning designation of certain property within the City from "S -1" and "R -1" to "SP S -1 ", "SP R -1" and "SP CE" with respect to the Project; and WHEREAS, on May 1, 2007, the City Council adopted Ordinance No. 2228 approving a Development Agreement between the City and Santa Anita Associates, LLC; and WHEREAS, on May 15, 2007, Westfield, LLC et al. filed a Petition for Writ of Mandate in the Los Angeles County Superior Court (Case No. BS103923) challenging the Project and alleging that the Final EIR for the Project was deficient, and that the Project was inconsistent with the Arcadia General Plan and the Arcadia Municipal Code; and WHEREAS, on May 17, 2007, Arcadia First! filed a Petition for Writ of Mandate in the Los Angeles County Superior Court (Case No. BS108937) challenging the Project and alleging that the Final EIR for the Project was 2 deficient; and WHEREAS, on October 15, 2008, after full briefing and hearing, the Court entered Judgment in part for the Petitioners, in which the Court granted the Petitions in part and ordered the City of Arcadia to set aside and void all approvals granted for the Project; and WHEREAS, on October 22, 2008, a Peremptory Writ of Mandate was issued by the Court stating that not more than fifty (50) days after service of the Writ, the City must set aside and void certification of the Final EIR for the Project and set aside and void approvals granted by the City in relation to the Project; and WHEREAS, the City desires and intends to comply with the Peremptory Writ of Mandate. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ARCADIA DOES ORDAIN AS FOLLOWS: SECTION 1. The City Council hereby specifically finds that all of the facts set forth in the recitals of this Ordinance are true and correct. SECTION 2. Pursuant to Court Order, the City Council hereby repeals, vacates and sets aside Ordinance No. 2228. 3 SECTION 3. The City Clerk shall certify to the adoption of this ordinance and shall cause a copy of the same to be published in the official newspaper of said City within fifteen (15) days after its adoption. Passed, approved and adopted this day of , 2008. Mayor of the City of Arcadia ATTEST: City Clerk APPROVED AS TO FORM: Stephen P. Deitsch City Attorney 2 ORDINANCE NO. 2253 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ARCADIA REPEALING ORDINANCE NO. 2226 WHICH CONCERNED THE ADOPTION OF "THE SHOPS AT SANTA ANITA PARK SPECIFIC PLAN" WHEREAS, on April 17, 2007, the City Council of the City of Arcadia ( "City") adopted Resolution No. 6564 certifying the Final Environmental Impact Report (" EIR ") (State Clearinghouse No. 200503113 1) prepared for the Shops at Santa Anita Park Specific Plan Project (the "Project ") and adopting the environmental findings pursuant to the California Environmental Quality Act ( "CEQA" ), a statement of overriding considerations, and a mitigation monitoring and reporting program for the Project; and WHEREAS, on April 17, 2007, the City Council adopted Resolution No. 6565 adopting General Plan Amendment No. 05 -01, which changed the land use designation of certain property under the Arcadia General Plan from "Horse Racing" and ``Commercial" to "The Shops at Santa Anita Park Specific Plan" and made various text amendments to the Arcadia General Plan with regard to the Project; and WHEREAS, on April 17, 2007, the City Council adopted Resolution No. 6566 approving Architectural Design Review and Design Guidelines with respect to the Project and imposed conditions of approval on the Project; and 1 M Y WHEREAS, on May 1, 2007, the City Council adopted Ordinance No. 2226 adopting the "Shops at Santa Anita Park Specific Plan" and the specific land use regulations contained therein with respect to the Project; and WHEREAS, on May 1, 2007, the City Council adopted Ordinance No. 2227 making certain amendments to the text of the Arcadia Zoning Code to add a "Commercial Entertainment" Zone and regulations with respect thereto and amending the zoning designation of certain property within the City from "S -1" and "R -1" to "SP S -1 ", "SP R -1" and "SP CE" with respect to the Project; and WHEREAS, on May 1, 2007, the City Council adopted Ordinance No. 2228 approving a Development Agreement between the City and Santa Anita Associates, LLC; and WHEREAS, on May 15, 2007, Westfield, LLC et al. filed a Petition for Writ of Mandate in the Los Angeles County Superior Court (Case No. BS 103923) challenging the Project and alleging that the Final EIR for the Project was deficient, and that the Project was inconsistent with the Arcadia General Plan and the Arcadia Municipal Code; and WHEREAS, on May 17, 2007, Arcadia First! filed a Petition for Writ of Mandate in the Los Angeles County Superior Court (Case No. BS108937) challenging the Project and alleging that the Final EIR for the Project was 2 deficient; and WHEREAS, on October 15, 2008, after full briefing and hearing, the Court entered Judgment in part for the Petitioners, in which the Court granted the Petitions in part and ordered the City of Arcadia to set aside and void all approvals granted for the Project; and WHEREAS, on October 22, 2008, a Peremptory Writ of Mandate was issued by the Court stating that not more than fifty (50) days after service of the Writ, the City must set aside and void certification of the Final EIR for the Project and set aside and void approvals granted by the City in relation to the Project; and WHEREAS, the City desires and intends to comply with the Peremptory Writ of Mandate. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ARCADIA DOES ORDAIN AS FOLLOWS: SECTION 1. The City Council hereby specifically finds that all of the facts set forth in the recitals of this Ordinance are true and correct. SECTION 2. Pursuant to Court Order, the City Council hereby repeals, vacates and sets aside Ordinance No. 2226. 3 SECTION 3. The City Clerk shall certify to the adoption of this ordinance and shall cause a copy of the same to be published in the official newspaper of said City within fifteen (15) days after its adoption. Passed, approved and adopted this day of 1 2008. Mayor of the City of Arcadia ATTEST: City Clerk APPROVED AS TO FORM: &�� P. 1 Stephen P. Deitsch City Attorney n ORDINANCE NO. 2254 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ARCADIA REPEALING ORDINANCE NO. 2227 WHICH CONCERNED ZONING CHANGES PERTAINING TO THE SHOPS AT SANTA ANITA PARK PROJECT WHEREAS, on April 17, 2007, the City Council of the City of Arcadia ( "City ") adopted Resolution No. 6564 certifying the Final Environmental Impact Report ( "EIR ") (State Clearinghouse No. 200503 1 13 1) prepared for the Shops at Santa Anita. Park Specific Plan Project (the "Project ") and adopting the environmental findings pursuant to the California Environmental Quality Act ( "CEQA "), a statement of overriding considerations, and a mitigation monitoring and reporting program for the Project; and WHEREAS, on April 17, 2007, the City Council adopted Resolution No. 6565 adopting General Plan Amendment No. 05 -01, which changed the land use designation of certain property under the Arcadia General Plan from "Horse Racing" and "Commercial" to "The Shops at Santa Anita Park Specific Plan" and made various text amendments to the Arcadia General Plan with regard to the Project; and WHEREAS, on April 17, 2007, the City Council adopted Resolution No. 6566 approving Architectural Design Review and Design Guidelines with respect to the Project and imposed conditions of approval on.the Project; and 1 WHEREAS, on May 1, 2007, the City Council adopted Ordinance No. 2226 adopting the "Shops at Santa Anita Park Specific Plan" and the specific land use regulations contained therein with respect to the Project; and WHEREAS, on May 1, 2007, the City Council adopted Ordinance No. 2227 making certain amendments to the text of the Arcadia Zoning Code to add a "Commercial Entertainment" Zone and regulations with respect thereto and amending the zoning designation of certain property within the City from "S -1" and "R -1" to "SP S -1 ", "SP R -1" and "SP CE" with respect to the Project; and WHEREAS, on May 1, 2007, the City Council adopted Ordinance No. 2228 approving a Development Agreement between the City and Santa Anita Associates, LLC; and WHEREAS, on May 15, 2007, Westfield, LLC et al. filed a Petition for Writ of Mandate in the Los Angeles County Superior Court (Case No. BS103923) challenging the Project and alleging that the Final EIR for the Project was deficient, and that the Project was inconsistent with the Arcadia General Plan and the Arcadia Municipal Code; and WHEREAS, on May 17, 2007, Arcadia First! filed a Petition for Writ of Mandate in the Los Angeles County Superior Court (Case No. BS108937) challenging the Project and alleging that the Final EIR for the Project was 2 deficient; and WHEREAS, on October 15, 2008, after full briefing and hearing, the Court entered Judgment in part for the Petitioners, in which the Court granted the Petitions in part and ordered the City of Arcadia to set aside and void all approvals granted for the Project; and WHEREAS, on October 22, 2008, a Peremptory Writ of Mandate was issued by the Court stating that not more than fifty (50) days after service of the Writ, the City must set aside and void certification of the Final EIR for the Project and set aside and void approvals granted by the City in relation to the Project; and WHEREAS, the City desires and intends to comply with the Peremptory Writ of Mandate. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ARCADIA DOES ORDAIN AS FOLLOWS: SECTION 1. The City Council hereby specifically finds that all of the facts set forth in the recitals of this Ordinance are true and correct. SECTION 2. Pursuant to Court Order, the City Council hereby repeals, vacates and sets aside Ordinance No. 2227. 3 SECTION 3. The City Clerk shall certify to the adoption of this ordinance and shall cause a copy of the same to be published in the official newspaper of said City within fifteen (15) days after its adoption. Passed, approved and adopted this day of , 2008. Mayor of the City of Arcadia ATTEST: City Clerk APPROVED AS TO FORM: cg � P Aa- Stephen P. Deitsch City Attorney 4