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Home My WebLink About2019-04-01 Agenda PacketMEETING ASSISTANCE NOTICE: In accordance with the Americans with Disabilities Act, services are available to members of our community who require special assistance to participate in public meetings. If you require special assistance, 48-hour prior notification will enable the City to make reasonable arrangements for an assisted listening device (ALD) for the hearing impaired, American Sign Language interpreters, a reader during the meeting and/or large print agendas. Please contact the City Clerk’s Office at (714) 536-5227 for more information, or request assistance from the staff or Sergeant-at-Arms at the meeting. PUBLIC COMMENTS: To address the legislative body on items of interest not scheduled for public hearing, Request to Speak forms will be made available at the meeting and are collected by the staff or Sergeant at Arms. Some legislative bodies may provide different Request to Speak forms for public hearing items. AUDIO/VIDEO ACCESS TO BROADCASTED MEETINGS: City Council and Planning Commission meetings are televised live on HBTV-3 Channel 3, and can be viewed via live or archived website at https://huntingtonbeach.legistar.com. AGENDA CITY COUNCIL/PUBLIC FINANCING AUTHORITY Monday, April 1, 2019 Council Chambers 2000 Main Street Huntington Beach, CA 92648 No Study Session / Closed Session - 5:00 PM Regular Meeting - 6:00 PM MAYOR AND CITY COUNCIL ERIK PETERSON, Mayor LYN SEMETA, Mayor Pro Tem PATRICK BRENDEN, Councilmember KIM CARR, Councilmember BARBARA DELGLEIZE, Councilmember JILL HARDY, Councilmember MIKE POSEY, Councilmember STAFF FRED A. WILSON, City Manager MICHAEL E. GATES, City Attorney ROBIN ESTANISLAU, City Clerk ALISA BACKSTROM, City Treasurer 1 City Council/Public Financing Authority AGENDA April 1, 2019 Based on the lack of a Study Session and time needed to cover the Closed Session items, the meeting will be called to order at 5:00 PM 5:00 PM - COUNCIL CHAMBERS CALL TO ORDER ROLL CALL Brenden, Carr, Semeta, Peterson, Posey, Delgleize, Hardy ANNOUNCEMENT OF SUPPLEMENTAL COMMUNICATIONS PERTAINING TO CLOSED SESSION ITEMS(Received After Agenda Distribution) PUBLIC COMMENTS PERTAINING TO CLOSED SESSION ITEMS (3 Minute Time Limit) RECESS TO CLOSED SESSION CLOSED SESSION ANNOUNCEMENT(S) 19-4131.Mayor Peterson to Announce: Pursuant to Government Code § 54957.6, the City Council takes this opportunity to publicly introduce and identify designated labor negotiators Fred Wilson, City Manager and Lori Ann Farrell-Harrison, Assistant City Manager; also in attendance: David Segura, Fire Chief, Mike Baumgartner, Marine Safety Division Chief, Gilbert Garcia, Chief Financial Officer and Michele Warren, Director of Human Resources who will be participating in today's Closed Session discussions regarding the following: Marine Safety Management Association (MSMA). CLOSED SESSION 19-3952.Pursuant to Government Code § 54956.9(d)(2), the City Council shall recess into Closed Session to confer with the City Attorney regarding potential litigation. Number of cases, four (4). 19-3963.Pursuant to Government Code § 54956.9(d)(1), the City Council shall recess into Closed Session to confer with the City Attorney regarding the following lawsuit: AKM Consulting Engineers, Inc. v. City of Huntington Beach, et Page 1 of 5 2 City Council/Public Financing Authority AGENDA April 1, 2019 al.; OCSC Case No. 30-2017-00902740. 19-4124.Pursuant to Government Code § 54957.6, the City Council shall recess into Closed Session to meet with its designated labor negotiators: Fred A. Wilson, City Manager, Lori Ann Farrell-Harrison, Assistant City Manager; also in attendance: David Segura, Fire Chief, Mike Baumgartner, Marine Safety Division Chief, Gilbert Garcia, Chief Financial Officer, Michele Warren, Director of Human Resources regarding the following: Marine Safety Management Association (MSMA). 6:00 PM – COUNCIL CHAMBERS RECONVENE CITY COUNCIL/PUBLIC FINANCING AUTHORITY MEETING ROLL CALL Brenden, Carr, Semeta, Peterson, Posey, Delgleize, Hardy PLEDGE OF ALLEGIANCE INVOCATION In permitting a nonsectarian invocation, the City does not intend to proselytize or advance any faith or belief. Neither the City nor the City Council endorses any particular religious belief or form of invocation. 19-3825.Marsha Rechsteiner of Saints Simon and Jude Catholic Church and member of the Greater Huntington Beach Interfaith Council CLOSED SESSION REPORT BY CITY ATTORNEY ANNOUNCEMENT OF SUPPLEMENTAL COMMUNICATIONS (Received After Agenda Distribution) PUBLIC COMMENTS (3 Minute Time Limit) COUNCIL COMMITTEE - APPOINTMENTS - LIAISON REPORTS, AB 1234 REPORTING, AND OPENNESS IN NEGOTIATIONS DISCLOSURES CITY MANAGER'S REPORT CONSENT CALENDAR Page 2 of 5 3 City Council/Public Financing Authority AGENDA April 1, 2019 19-3916.Approve and Adopt Minutes Approve and adopt the City Council/Public Financing Authority regular meeting minutes dated March 18, 2019, as written and on file in the Office of the City Clerk. Recommended Action: 19-3977.Approve the March 2019 City of Huntington Beach Strategic Plan Update Approve the March 2019 Strategic Objectives Update as contained within Attachment 1. Recommended Action: 19-3878.Adopt Resolution No. 2019-18 directing the execution and recordation of a Notice of Cessation of Special Tax - Improvement Area B of the City of Huntington Beach Community Facilities District (CFD) No. 2002-1 (McDonnell Centre Business Park) A) Adopt Resolution No. 2019-18, “A Resolution of the City Council of the City of Huntington Beach Directing the Execution of a Notice of Cessation of Special Tax - Improvement Area B of the City of Huntington Beach Community Facilities District No. 2002-1 (McDonnell Centre Business Park);” and , B) Authorize the City Manager and City Clerk to execute and record the Notice of Cessation and other related documents and actions. Recommended Action: 19-3719.Award and authorize execution of a Three-Year Contract with Pinnacle Petroleum Inc. for Bulk Fuel Service - Jet-A Aviation Fuel in an amount not to exceed $300,000 per year Approve and authorize the Mayor and City Clerk to execute the “Service Agreement Between the City of Huntington Beach and Pinnacle Petroleum, Inc. for Bulk Fuel Services - Jet-A Aviation Fuel” in an amount not to exceed $300,000 per year for three years. Recommended Action: 19-39910.Approve and authorize execution of Cooperative Agreement No. C-8-1882 for the Orange County Enhanced Mobility for Seniors and Disabled (EMSD) Grant Program between the Orange County Transportation Authority (OCTA) and City of Huntington Beach, accept grant award and authorize expenditure and appropriation of funds Recommended Action: Page 3 of 5 4 City Council/Public Financing Authority AGENDA April 1, 2019 A) Approve and authorize the Mayor to execute “Cooperative Agreement No. C-8-1882 Between the Orange County Transportation Authority and City of Huntington Beach” for a term of October 1, 2018, through September 30, 2020; and, B) Accept the grant award and approve the expenditure of funds for three buses and transportation software as referenced in Cooperative Agreement No. C-8-1882; and, C) Authorize the appropriation of $50,000 into account 10345502.63230 to be reimbursed through Cooperative Agreement No. C-8-1882. 19-40611.Approve the Appointment of Assistant City Manager Lori Ann Farrell-Harrison as Interim City Manager, approve Amendment to Employment Agreement, and adopt Resolution No. 2019-21 establishing compensation A) Approve and authorize the Mayor and City Clerk to execute the “Amendment to Employment Agreement Between the City of Huntington Beach and Lori Ann Farrell-Harrison” for the position of Interim City Manager; and, B) Adopt Resolution No. 2019-21, “A Resolution of the City Council of the City of Huntington Beach Modifying Salary and Benefits for Non-Represented Employees by Establishing the Compensation of Interim City Manager.” Recommended Action: 19-39212.Adopt Ordinance No. 4178 amending Huntington Beach Municipal Code Chapter 5.48 relating to Taxi Cabs Approved for introduction 3/18/2019 - Vote: 5-0-2 (Brenden, Delgleize absent) Adopt Ordinance No. 4178, “An Ordinance of the City of Huntington Beach Amending Huntington Beach Municipal Code Chapter 5.48 Taxi Cabs.” Recommended Action: ADMINISTRATIVE ITEMS 19-39413.Approve and authorize execution of a Three-Year Lease Agreement for 5770 Research Drive and adopt Resolution No. 2019-22 pursuant to SB 850 (Chapter 48, Statutes of 2018 and Government Code Section 8698.2) for the Development and Operation of a 50-Bed Navigation Center Recommended Action: Page 4 of 5 5 City Council/Public Financing Authority AGENDA April 1, 2019 A) Authorize the Mayor and City Clerk to enter into the Three-Year Commercial Lease Agreement for 5770 Research Drive, Huntington Beach, CA; and, B) Authorize the City Manager to execute all documents related to the Lease to further the action; and, C) Adopt Resolution 2019-22, “A Resolution of the City Council of the City of Huntington Beach Pursuant to SB 850 (Chapter 48, Statutes of 2018 and Government Code Section 8698.2);” and, D) Increase appropriations in the FY 2018/19 Revised Budget for the Office of Business Development by $104,000 for the annual lease costs of the Navigation Center. COUNCILMEMBER ITEMS 19-40914.Notice of Termination of Rainbow/Republic Services Evergreen Contract Direct the City Manager to prepare a letter of written notification to Republic Services of the City’s intent to terminate the current franchise agreement pursuant to the terms of the agreement, and present that termination letter to the City Council for approval at the next-scheduled City Council Meeting. Recommended Action: COUNCILMEMBER COMMENTS (Not Agendized) ADJOURNMENT The next regularly scheduled meeting of the Huntington Beach City Council/Public Financing Authority is Monday, April 15, 2019, at 4:00 PM in the Civic Center Council Chambers, 2000 Main Street, Huntington Beach, California. INTERNET ACCESS TO CITY COUNCIL/PUBLIC FINANCING AUTHORITY AGENDA AND STAFF REPORT MATERIAL IS AVAILABLE PRIOR TO CITY COUNCIL MEETINGS AT http://www.huntingtonbeachca.gov Page 5 of 5 6 City of Huntington Beach File #:19-413 MEETING DATE:4/1/2019 Mayor Peterson to Announce: Pursuant to Government Code § 54957.6, the City Council takes this opportunity to publicly introduce and identify designated labor negotiators Fred Wilson, City Manager and Lori Ann Farrell-Harrison, Assistant City Manager; also in attendance: David Segura, Fire Chief, Mike Baumgartner, Marine Safety Division Chief, Gilbert Garcia, Chief Financial Officer and Michele Warren, Director of Human Resources who will be participating in today's Closed Session discussions regarding the following: Marine Safety Management Association (MSMA). City of Huntington Beach Printed on 3/27/2019Page 1 of 1 powered by Legistar™7 City of Huntington Beach File #:19-395 MEETING DATE:4/1/2019 Pursuant to Government Code § 54956.9(d)(2), the City Council shall recess into Closed Session to confer with the City Attorney regarding potential litigation. Number of cases, four (4). City of Huntington Beach Printed on 3/27/2019Page 1 of 1 powered by Legistar™8 City of Huntington Beach File #:19-396 MEETING DATE:4/1/2019 Pursuant to Government Code § 54956.9(d)(1), the City Council shall recess into Closed Session to confer with the City Attorney regarding the following lawsuit: AKM Consulting Engineers, Inc. v. City of Huntington Beach, et al.; OCSC Case No. 30-2017-00902740. City of Huntington Beach Printed on 3/27/2019Page 1 of 1 powered by Legistar™9 City of Huntington Beach File #:19-412 MEETING DATE:4/1/2019 Pursuant to Government Code § 54957.6, the City Council shall recess into Closed Session to meet with its designated labor negotiators: Fred A. Wilson, City Manager, Lori Ann Farrell- Harrison, Assistant City Manager; also in attendance: David Segura, Fire Chief, Mike Baumgartner, Marine Safety Division Chief, Gilbert Garcia, Chief Financial Officer, Michele Warren, Director of Human Resources regarding the following: Marine Safety Management Association (MSMA). City of Huntington Beach Printed on 3/27/2019Page 1 of 1 powered by Legistar™10 City of Huntington Beach File #:19-382 MEETING DATE:4/1/2019 Marsha Rechsteiner of Saints Simon and Jude Catholic Church and member of the Greater Huntington Beach Interfaith Council City of Huntington Beach Printed on 3/27/2019Page 1 of 1 powered by Legistar™11 City of Huntington Beach File #:19-391 MEETING DATE:4/1/2019 REQUEST FOR CITY COUNCIL ACTION SUBMITTED TO:Honorable Mayor and City Council Members SUBMITTED BY:Robin Estanislau, CMC, City Clerk PREPARED BY:Robin Estanislau, CMC, City Clerk Subject: Approve and Adopt Minutes Statement of Issue: The City Council/Public Financing Authority regular meeting minutes dated March 18, 2019, require review and approval. Financial Impact: None. Recommended Action: Approve and adopt the City Council/Public Financing Authority regular meeting minutes dated March 18, 2019, as written and on file in the Office of the City Clerk. Alternative Action(s): Do not approve and/or request revision(s). Analysis: None. Environmental Status: Non-Applicable. Strategic Plan Goal: Non-Applicable - Administrative Item Attachment(s): 1. March 18, 2019 CC/PFA Minutes City of Huntington Beach Printed on 3/27/2019Page 1 of 1 powered by Legistar™12 Minutes City Council/Public Financing Authority City of Huntington Beach Monday, March 18, 2019 5:00 PM - Council Chambers 6:00 PM - Council Chambers Civic Center, 2000 Main Street Huntington Beach, California 92648 A video recording of the 6:00 PM portion of this meeting is on file in the Office of the City Clerk, and archived at www.surfcity-hb.org/government/agendas/ Based on the lack of a Study Session and time needed to cover the Closed Session items, the meeting was called to order at 5:00 PM 5:00 PM - COUNCIL CHAMBERS CALLED TO ORDER — 5:00 PM ROLL CALL Present: Carr, Semeta, Peterson, Posey, and Hardy Absent: Brenden, and Delgleize Councilmembers Brenden and Delgleize requested, and with no objections, were granted permission to be absent pursuant to Resolution No. 2001-54 ANNOUNCEMENT OF SUPPLEMENTAL COMMUNICATIONS PERTAINING TO CLOSED SESSION ITEMS (Received After Agenda Distribution) — None PUBLIC COMMENTS PERTAINING TO CLOSED SESSION ITEMS (3 Minute Time Limit) — None RECESSED TO CLOSED SESSION ITEM NOS. 1-11 — 5:01 PM Mayor Peterson Announced: Pursuant to Government Code § 54957.6, the City Council takes this opportunity to publicly introduce and identify designated labor negotiators Fred Wilson, City Manager and Peter Brown, outside counsel; also in attendance are Gilbert Garcia, Chief Financial Officer and Michele Warren, Director of Human Resources who will be participating in today’s Closed Session discussions regarding the following: Interim City Manager. CLOSED SESSION 1. 19-314 Pursuant to Government Code § 54956.9(d)(1), the City Council recessed into Closed Session to confer with the City Attorney regarding the following lawsuit: City of Huntington Beach v. The Stephouse Recovery, Inc.; et al.; OCSC Case No. 30-2018-01025168. 13 City Council/PFA Regular Minutes March 18, 2019 Page 2 of 10 2. 19-315 Pursuant to Government Code § 54956.9(d)(1), the City Council recessed into Closed Session to confer with the City Attorney regarding the following lawsuit: City of Huntington Beach v. Nevaeh Re 1, LLC; OCSC Case No. 30-2018-01025173. 3. 19-316 Pursuant to Government Code § 54956.9(d)(1), the City Council recessed into Closed Session to confer with the City Attorney regarding the following lawsuit: City of Huntington Beach v. David Lacy, et al.; OCSC Case No. 30-2018-01025153. 4. 19-317 Pursuant to Government Code § 54956.9(d)(1), the City Council recessed into Closed Session to confer with the City Attorney regarding the following lawsuit: City of Huntington Beach v. Coastline Recovery LLC; et al.; OCSC Case No. 30- 2018-01025162. 5. 19-318 Pursuant to Government Code § 54956.9(d)(1), the City Council recessed into Closed Session to confer with the City Attorney regarding the following lawsuit: City of Huntington Beach v. Anthony Roxstrom; OCSC Case No. 30-2018- 010285104. 6. 19-356 Pursuant to Government Code § 54956.9(d)(1), the City Council recessed into Closed Session to confer with the City Attorney regarding the following lawsuit: Cody Rogers, et al. v. City of Huntington Beach, et al.; USDC Case No. 8:19-cv- 00031 DOC (ADSx). 7. 19-358 Pursuant to Government Code § 54956.9(d)(1), the City Council recessed into Closed Session to confer with the City Attorney regarding the following lawsuit: In re: Ruby’s Diner, Inc., a California Corporation, US Bankruptcy Court Case No. 8:18- bk-13311-CB. 8. 19-359 Pursuant to Government Code § 54956.9(d)(1), the City Council recessed into Closed Session to confer with the City Attorney regarding the following lawsuit: Kennedy Commission, et al. v. City of Huntington Beach, et al.; OCSC Case No. 30- 2015-00801675. 9. 19-360 Pursuant to Government Code § 54954.5(e), the City Council recessed into Closed Session to discuss the public employment of Interim City Manager. 10. 19-363 Pursuant to Government Code § 54957.6, the City Council recessed into Closed Session to meet with its designated labor negotiators: Fred A. Wilson, City Manager, Peter Brown, outside counsel and Chief Negotiator; also in attendance: Gilbert Garcia, Chief Financial Officer, Michele Warren, Director of Human Resources regarding the following: Interim City Manager. 11. 19-367 Pursuant to Government Code §54956.9(d)(2), the City Council recessed into Closed Session to confer with the City Attorney regarding potential litigation. Number of cases, three (3). 14 City Council/PFA Regular Minutes March 18, 2019 Page 3 of 10 6:00 PM - COUNCIL CHAMBERS RECONVENED CITY COUNCIL/PUBLIC FINANCING AUTHORITY MEETING — 6:00 PM Councilmembers Brenden and Delgleize requested, and with no objections, were granted permission to be absent pursuant to Resolution No. 2001-54 ROLL CALL Present: Carr, Semeta, Peterson, Posey, and Hardy Absent: Brenden, and Delgleize PLEDGE OF ALLEGIANCE — Led by Councilmember Carr INVOCATION 12. 19-375 Reverend James Pike, Pastor of Resurrection Lutheran Church in Huntington Beach In permitting a nonsectarian invocation, the City does not intend to proselytize or advance any faith or belief. Neither the City nor the City Council endorses any particular religious belief or form of invocation. CLOSED SESSION REPORT BY CITY ATTORNEY — None AWARDS AND PRESENTATIONS 13. 19-275 Mayor Peterson called on Victoria Alberty to present the Adoptable Pet of the Month Ms. Alberty introduced Karen of Top Dog Barkery, who is fostering Sherman, a Shih Tzu. Sherman was found abandoned on the street and his hair was so matted it had to be shaved, but it will grow back. More details can be found at www.waggintrails.org. Last year Waggin Trails saved 350 animals from being euthanized through adoptions. Ms. Alberty also reminded everyone of the upcoming fundraiser, Wags and Wine, on June 16, 2019. 14. 19-276 Mayor Peterson called on City Attorney Michael Gates who presented the Mayor’s Award to Senior Trial Counsel, Brian Williams Senior Trial Counsel Brian Williams has been on staff since February of 2017, and has been instrumental in successfully taking cases to trial. Brian is a 35-year resident of Huntington Beach where he and his wife, Shannon, are raising four children. Brian's experience includes over 30 significant jury trials; a former Shareholder at Sullivan Ballog & Williams, LLP, a legal firm with over 15 lawyers; invited lecturer for the Orange County Bar Association College of Trial Advocacy; and he has a lot of experience handling cop cases for both the Orange County Sheriff's and the Huntington Beach Police Departments. Mayor Peterson thanked Mr. Williams for clearly explaining and communicating details regarding legal situations to Council. 15 City Council/PFA Regular Minutes March 18, 2019 Page 4 of 10 Mr. Williams introduced his wife and family, and expressed appreciation for the opportunity to work in the city where he grew up. ANNOUNCEMENT OF SUPPLEMENTAL COMMUNICATIONS (Received After Agenda Distribution) Pursuant to the Brown "Open Meetings" Act, City Clerk Robin Estanislau announced supplemental communications received by her office following distribution of the Council Agenda packet: Consent Calendar Item No. 21 (19-159) Police Department Modernization Project - E-mail communication received from Councilmember Brenden requesting that the item be continued. PUBLIC COMMENTS (3 Minute Time Limit) — 8 Speakers The number [hh:mm:ss] following the speakers' comments indicates their approximate starting time in the archived video located at http://www.surfcity-hb.org/government/agendas. Dave Shenkman was called to speak and shared some highlights from the recent Kite Party which he felt was probably the best one in 17 years, and had participants from literally around the world. Registration was limited to 100, and there were 99 participants. (00:12:11) Tim Geddes, a resident of south east Huntington Beach, was called to speak and invited everyone to attend the performance of Phantom of the Opera by the Huntington Beach Academy of Performing Arts at Huntington Beach High School. (00:13:48) Kathryn Levassiur, a resident of Huntington Beach, was called to speak and shared her appreciation for a number of recent community events where various Council and City staff members were involved and provided valuable information for members of the community. Mrs. Levassiur also expressed opinions about the potential sustainable revenue from Short-Term Rentals, and encouraged the City to implement processes to regulate and tax this service. (00:14:47) David Geddes, a resident of south east Huntington Beach, was called to speak and shared his experience of cleaning up the trash and broken glass during a walk in his neighborhood, and encouraged everyone to help with keeping the City's streets clean. (00:17:36) KC Fockler was called to speak, and as a member of the STEAM Expo Board for the Huntington Beach Union High School District, announced the STEAM Expo on Saturday, March 23, 10 am to 1 pm at Marina High School, and described some of the activities. Mr. Fockler also expressed appreciation for the recent Kite Festival and the Orange County Cherry Blossom Festival in Huntington Beach. In closing he shared his opinions regarding the Magnolia Tank Farm project. (00:20:44) Nancy Buchoz was called to speak and shared her opinions and concerns regarding the Magnolia Tank Farm project and Draft EIR, and shared personal experiences from having two huge projects occurring simultaneously in her neighborhood. (00:23:48) Cari Swan was called to speak and shared her opinions and concerns regarding the Magnolia Tank Farm project and Draft EIR. (00:26:59) Natalie Moser, a 40+ year resident of Huntington Beach, and member of the Huntington Beach Human Relations Task Force, was called to speak and shared concerns and opportunities from her personal 16 City Council/PFA Regular Minutes March 18, 2019 Page 5 of 10 perspective. Ms. Moser also announced an essay and art contest, Youth Voices HB. Details can be found at ochumanrelations.org/youthvoiceshb. (00:30:08) COUNCIL COMMITTEE - APPOINTMENTS - LIAISON REPORTS, AB 1234 REPORTING, AND OPENNESS IN NEGOTIATION DISCLOSURES Councilmember Carr reported that as Liaison for the Youth Board she attended their final meeting before the Youth in Government Day event; and as Liaison attended the Orange County River Park Board meeting which is a partnership with Costa Mesa, Newport Beach, and the Army Corps of Engineers. CITY MANAGER’S REPORT City Manager Wilson announced that the 3rd Annual Huntington Beach Citizens' Academy will take place from March 1 through July 22. Details are available on the City's website. For more information, contact the City's Public Information Officer Julie Toledo. CITY ATTORNEY’S REPORT 15. 19-365 Update on Lawsuits against Illegal Residential Sober Living Businesses City Attorney Gates provided an update on lawsuits against Illegal Residential Sober Living Businesses, stating that 4 of the 5 illegal businesses have voluntarily closed down to avoid further litigation. CONSENT CALENDAR Councilmember Posey pulled Item No. 21 - 19-159 regarding the Police Department Modernization Project. 16. 19-313 Approved and Adopted Minutes A motion was made by Hardy, second Semeta to approve and adopt the City Council/Public Financing Authority regular meeting minutes dated March 4, 2019, as written and on file in the Office of the City Clerk. The motion carried by the following vote: AYES: Carr, Semeta, Peterson, Posey, and Hardy NOES: None ABSENT: Brenden, and Delgleize 17. 19-297 Approved the West Orange County Water Board (WOCWB) proposed budget for Fiscal Year 2019-20, including the City of Huntington Beach’s share of $487,937 A motion was made by Hardy, second Semeta to approve the WOCWB FY 2019-20 proposed operating and debt budget amount of $649,000. The motion carried by the following vote: AYES: Carr, Semeta, Peterson, Posey, and Hardy 17 City Council/PFA Regular Minutes March 18, 2019 Page 6 of 10 NOES: None ABSENT: Brenden, and Delgleize 18. 19-239 Amended the previously approved Park Playground and Equipment Replacement Priority List and appropriate funds from the Park Development Impact Fund for installation of new playground equipment at Tarbox Park in the amount of $91,000 A motion was made by Hardy, second Semeta to approve the amendment of the previously approved Park Playground and Equipment Replacement Priority List; and, authorize an appropriation increase of $91,000 into Park Development Impact account 22845001.82900 for the installation of new playground equipment at Tarbox Park. The motion carried by the following vote: AYES: Carr, Semeta, Peterson, Posey, and Hardy NOES: None ABSENT: Brenden, and Delgleize 19. 19-304 Approved Cal OES Violence Against Women Act Grant (LE 18026860) for the 2019 calendar year A motion was made by Hardy, second Semeta to accept the grant between the State of California, Governor's Office of Emergency Services (Cal OES) and the City of Huntington Beach; and, approve an appropriation of $203,143, which is to be fully reimbursed by the grant from Cal OES; and, increase the Professional Services authority list to include domestic violence services. The motion carried by the following vote: AYES: Carr, Semeta, Peterson, Posey, and Hardy NOES: None ABSENT: Brenden, and Delgleize 20. 19-126 Adopted Resolution No. 2019-09 adopting a revised Council Manual digitally compiled to incorporate policy information previously adopted by resolution, enhance formatting, and include links to local government resource material A motion was made by Hardy, second Semeta to adopt Resolution No. 2019-09, "A Resolution of the City Council of Huntington Beach adopting a revised Council Manual" that incorporates adopted policy and relevant government resource material into one living document, superseding all previous versions. The motion carried by the following vote: AYES: Carr, Semeta, Peterson, Posey, and Hardy NOES: None ABSENT: Brenden, and Delgleize 21. 19-159 Approved and authorized execution of a Professional Services Contract with Erickson-Hall Construction Co. for the Police Department Modernization Project 18 City Council/PFA Regular Minutes March 18, 2019 Page 7 of 10 Councilmember Posey pulled this item to acknowledge Councilmember Brenden's Supplemental Communication requesting that this item be continued to the next meeting so that all Councilmembers can vote. A motion was made by Posey, second Carr to continue the item to April 1, 2019. Mayor Peterson stated that he supports proceeding with the vote because this issue has been a topic of discussion for a long time, and Councilmembers Brenden and Delgleize have had plenty of opportunity to weigh in during these discussions. A substitute motion was made by Peterson, second Hardy to approve and authorize the Mayor and City Clerk execute the "Professional Services Contract Between the City of Huntington Beach and Erickson Hall Construction Company for Program Management Services for Modernization of the Police Department Facility." Mayor Pro Tem Semeta, in consideration of the request to continue the item to the next meeting, asked Police Chief Handy to review the process up to this point. Chief Handy responded by describing some of the issues like repeated roof leaks and damage resulting in uninhabitable conditions, and a time-line showing how many years this topic has been addressed in one form or another to provide Council with the many details and finance options required. Chief Handy stated that this item is not to construct the building, but to finish the design and provide a Not-To-Exceed price with a thorough probing of existing conditions by looking in pipes and ducts to determine actual conditions. Councilmember Posey reiterated his motion to continue the item based on his opinion that the absences of Councilmembers wanting to participate in a decision continued for an additional two weeks would not have a major impact on the project. Councilmember Carr stated that in her opinion this is a very important issue, and she supports continuing the item to the next Council meeting. Councilmember Hardy stated her opinion that this issue has gone on for way too long already and she doesn't see this item as being debatable, and suspects the two absent Council members just want to ensure that their support of this project is documented. Mayor Peterson called for a vote. Mayor Peterson’s substitute motion seconded by Hardy to approve and authorize the Mayor and City Clerk execute the "Professional Services Contract Between the City of Huntington Beach and Erickson Hall Construction Company for Program Management Services for Modernization of the Police Department Facility," carried by the following vote: AYES: Carr, Semeta, Peterson, and Hardy NOES: Posey ABSENT: Brenden, and Delgleize ADMINISTRATIVE ITEMS 22. 19-354 Approved City Council position on Legislation pending before the State Legislature as recommended by the City Council Intergovernmental Relations Committee (IRC) 19 City Council/PFA Regular Minutes March 18, 2019 Page 8 of 10 Mayor Peterson introduced this item by stating that full Council approval is required, especially for Item E, regarding Southern California Gas Company's request to allow customers to purchase renewable natural gas for their homes. A motion was made by Posey, second Semeta to approve a City position of Support on Assembly Bill 136 (Quirk-Silva) -Alcohol and Drug Programs; and, approve a City position of Support on Assembly Bill 510 (Cooley) - Local Government Records; and, approve a City position of Support on Assembly Bill 1190 (Irwin) - Unmanned Aircraft: State and Local Regulations; and, approve a City position of Oppose unless Amended on Assembly Bill 377 (Garcia) - Microenterprise Home Kitchen Operations; and, authorize the Mayor to send a letter of support to the California Public Utilities Commission in support of Southern California Gas Company's request to allow customers to purchase renewable natural gas for their homes. The motion carried by the following vote: AYES: Carr, Semeta, Peterson, Posey, and Hardy NOES: None ABSENT: Brenden, and Delgleize ORDINANCES FOR INTRODUCTION 23. 19-312 Adopted Resolution No. 2019-13 adopting revised Orange County Taxi Administration Program (OCTAP) regulations and approved for introduction Ordinance No. 4178 amending Huntington Beach Municipal Code Chapter 5.48 relating to Taxi Cabs City Manager Fred Wilson introduced this item by providing some background details, including the increasing financial burden on the City as the Taxi Administration Program is affected by the increase of other travel options such as Lyft and Uber. A motion was made by Posey, second Hardy to adopt Resolution No. 2019-13, "A Resolution of the City Council of the City of Huntington Beach Adopting Revised Orange County Taxi Administration Program Regulations;" and, after the City Clerk reads by title approve for introduction Ordinance No. 4178, "An Ordinance of the City of Huntington Beach Amending Huntington Beach Municipal Code Chapter 5.48 Taxi Cabs." The motion carried by the following vote: AYES: Carr, Semeta, Peterson, Posey, and Hardy NOES: None ABSENT: Brenden, and Delgleize COUNCILMEMBER COMMENTS (Not Agendized) Councilmember Carr reported attending the Kite Party, and announced that next year the event will be held on March 7th and 8th. She also reported on activities at the Youth in Government Day, United to End Homelessness, and Arbor Day events; attended the HB Fire Department Awards and Recognition Ceremony; the Wintersburg-Furuta Public Art Dedication with the Consulate of Japan; the OC Cherry 20 City Council/PFA Regular Minutes March 18, 2019 Page 9 of 10 Blossom Festival, and highly recommended the HB Academy of Performing Arts Phantom of the Opera performance. Mayor Pro Tem Semeta reported attending the Local Government Finance Committee meeting where she is co-chair; Student Day of Dialogue; Southern California Association of Government (SCAG) Regional Council, and Economic and Human Development Sub-committee meetings; a meeting of the Inter-governmental Relations Committee (IRC); the 3/1 Marines 5k Fun Run/Walk; Pacific City/Pasea/Hilton/Hyatt's Business Roundtable; Illumination Foundation Facilities Tour; Youth in Government Day; AES Facility Tour; Every 15 Minutes (Accident) Assembly at Marina High School; representing the City at the Wintersburg-Furuta Public Art Dedication with the Consulate of Japan; and attending the Cherry Blossom Festival. Councilmember Posey reported attending the Orange County Government Leaders' Prayer Breakfast; Southern California Association of Government (SCAG) Economic and Human Development Sub- committee, and Orange County Parks meetings, and briefly described topics of discussion. Councilmember Hardy reported attending the Student Day of Dialogue; the 3/1 Marines 5k Fun Run/Walk; participating in Youth in Government Day directed by the Youth Board; attended Every 15 Minutes (Accident) Assembly at Marina High School; and also highly recommended the HB Academy of Performing Arts Phantom of the Opera performance. Mayor Peterson reported attending the 3/1 Marines 5k Fun Run/Walk; Troop 1226 Eagle Court of Honor for Jason Gong, Michael Riley and Benjamin Teske; Pacific City/Pasea/Hilton/Hyatt Business Roundtable; the Retirement Celebration for Division Chief/Fire Marshal Bill Reardon; HB Fire Department Awards and Recognition Ceremony; HB Tomorrow's Annual Meeting and Town Hall; OC Cherry Blossom Festival; and the Wintersburg-Furuta Public Art Dedication with the Consulate of Japan. RECESSED TO CLOSED SESSION REGARDING ITEMS #8, #9 and #11 — 7:15 PM RECONVENED CITY COUNCIL/PUBLIC FINANCING AUTHORITY MEETING — 7:45 PM CLOSED SESSION ANNOUNCEMENT: "In a unanimous Closed Session vote, Lori Ann Farrell was appointed interim City Manager." ADJOURNMENT — At 7:45 PM to the next regularly scheduled meeting of the Huntington Beach City Council/Public Financing Authority on Monday, April 1, 2019, at 4:00 PM in the Civic Center Council Chambers, 2000 Main Street, Huntington Beach, California. INTERNET ACCESS TO CITY COUNCIL/PUBLIC FINANCING AUTHORITY AGENDA AND STAFF REPORT MATERIAL IS AVAILABLE PRIOR TO CITY COUNCIL MEETINGS AT http://www.huntingtonbeachca.gov _____________________________________ City Clerk and ex-officio Clerk of the City Council of the City of Huntington Beach and Secretary of the Public Financing Authority of the City of Huntington Beach, California 21 City Council/PFA Regular Minutes March 18, 2019 Page 10 of 10 ATTEST: ______________________________________ City Clerk-Secretary ______________________________________ Mayor-Chair 22 City of Huntington Beach File #:19-397 MEETING DATE:4/1/2019 REQUEST FOR CITY COUNCIL ACTION SUBMITTED TO:Honorable Mayor and City Council Members SUBMITTED BY:Fred A. Wilson, City Manager PREPARED BY:Antonia Graham, Assistant to the City Manager Subject: Approve the March 2019 City of Huntington Beach Strategic Plan Update Statement of Issue: The City Council held a Strategic Planning Retreat on February 7, 2019, in which the City Council developed 20 Strategic Objectives based on four (4) Strategic Plan Goals. The Strategic Objectives were reviewed in a public meeting and through consensus by the City Council Members present, were compiled into a draft Strategic Objectives Grid. The Strategic Objectives were brought forth to City Council for approval on March 4, 2019. Financial Impact: Not applicable. Individual Strategic Objectives which have a budgetary impact will be considered separately. Recommended Action: Approve the March 2019 Strategic Objectives Update as contained within Attachment 1. Alternative Action(s): Amend or reject the Strategic Objectives Update and direct staff accordingly. Analysis: In 2009, the City Council began an annual strategic planning process to develop consensus on a Mission Statement, Three-Year Goals, and corresponding Priority Strategic Objectives. This process is ongoing and is a critical component of maintaining the City in a fiscally sustainable manner. In fulfilling this process, the City Council met on February 7, 2019, to review and update the Three-Year Goals and their Priority Strategic Objectives. The Three-Year Goals are organized into four categories as follows: - Enhance and Maintain High Quality City Services - Enhance and Maintain the Infrastructure - Strengthen Long-Term Financial and Economic Sustainability - Enhance and Modernize Public Safety Service Delivery Each of these categories includes a list of Six-Month Strategic Objectives. The Strategic Objectives City of Huntington Beach Printed on 3/27/2019Page 1 of 2 powered by Legistar™23 File #:19-397 MEETING DATE:4/1/2019 Each of these categories includes a list of Six-Month Strategic Objectives. The Strategic Objectives contained in the matrix all gained consensus at the Strategic Planning Retreat. Additionally, the Strategic Objectives were brought forth to City Council on March 4, 2019, where they were approved in their entirety. The attached Strategic Objectives Matrix contains a status and comments column that are updated to reflect the most recent activity on each item that was identified at the Council Strategic Planning Session. The status is reported to the City Council each month. Environmental Status: Not Applicable. Strategic Plan Goal: Enhance and Maintain High Quality Services Enhance and Maintain the Infrastructure Strengthen Long-Term Financial and Economic Sustainability Enhance and Modernize Public Safety Service Delivery Attachment(s): 1. City of Huntington Beach Strategic Objectives - March 2019 Update. City of Huntington Beach Printed on 3/27/2019Page 2 of 2 powered by Legistar™24 A CITY OF HUNTINGTON BEACH 12-MONTH STRATEGIC OBJECTIVES February 7, 2019 – February 1, 2020 THREE-YEAR GOAL: Enhance and maintain high quality City services WHEN WHO WHAT STATUS COMMENTS DONE ON TARGET REVISED 1. By May 15, 2019 Assistant City Manager (lead), Economic Development Director and Police Chief Present to the City Council for action an updated 10-Point Plan for addressing homelessness and report the results to the City Council. X Staff is currently updating the 10-Point Plan, including community input, for the May 2019 Study Session. 2. By July 1, 2019 Assistant City Manager, working with the Chief Financial Officer Develop and present to the City Council for consideration participation in the Orange County Housing Trust. X The Orange County Housing Trust JPA was recently adopted by the County of Orange. Staff will bring forward a recommendation at a future meeting. 3. By August 1, 2019 Community Services Director (lead), City Manager and City Attorney Review current municipal codes related to community services and provide to the City Council recommendations that would allow the City to enhance public services. X Community Services and Police have met to identify specific codes in need of revisions. 4. By Oct. 1, 2019 Human Resources Director, with input from each Department Director Review and evaluate the results of the Succession Planning Survey and provide a summary report, with recommendations, to the City Council for review and evaluation. X The Citywide Succession Planning review is underway. Preliminary recommendations will be presented in the context of the FY 2019/20 Proposed Budget. 25 B 5. By August 1, 2019 Assistant to the City Manager, working with the Assistant City Manager, Information Services Director, Chief Financial Officer and Public Information Officer Present to the City Council a plan for the transition out of PCTA (Public Cable Television Authority). X The Staff Transition Team meets weekly regarding project deliverables to ensure a successful transition by July 27, 2019. Staff also attended the March 2019 PCTA Board meeting to provide an update. 6. By August 15, October 1, 2019 Community Services Director Present to the City Council at a study session the draft Public Art Master Plan. X RFP responses were reviewed and staff is working on final contract. Plan date of completion by October 1, 2019. 7. By December 15, 2019 Community Development Director Bring Phase II of the Zoning Code update to the City Council for consideration. X In Progress. 26 C THREE-YEAR GOAL: Enhance and maintain the infrastructure WHEN WHO WHAT STATUS COMMENTS DONE ON TARGET REVISED 1. By June 1, 2019 Public Works Director, working with the Community Services Director Utilizing the Parks Master Plan, prioritize next year’s proposed improvements and present to the City Council as a part of the 2019-2020 budget. X Park improvements have been requested and will be presented during the budget process. 2. By Sept. 1, 2019 Assistant City Manager (lead), Chief Information Officer and Public Works Director Develop and present to the City Council for action a Broadband Master Plan for the installation of fiber throughout the city. X A working group has been identified to develop recommendations to present to the City Council in September 2019. 3. By Aug. 1, 2019 Public Works Director, working with the Community Development Director and Police Chief Hold a study session on the feasibility of developing a citywide Traffic Mitigation Plan. X In Progress. 4. By December 1, 2019 Chief Information Officer and Public Works Director Develop and present to the City Council for action a plan for the selection of an Enterprise Asset Management System. X In Progress. 5. By February 1, 2020 Library Services Director (lead) and Public Works Director Conduct a City Council study session to share the results of the library facility assessment and present a draft Library Facilities Master Plan. X Draft RFP in development. 27 D THREE-YEAR GOAL: Strengthen long-term financial and economic sustainability WHEN WHO WHAT STATUS COMMENTS DONE ON TARGET REVISED 1. By May 15, 2019 Deputy Director of Economic Development Provide update to City Council on plan to redevelop Boeing site. X Met with Sares-Regis on the purchase of Phase II (50 acres). 2. By Sept. 1, 2019 Assistant City Manager (lead), Community Development Director and City Attorney Conduct a study session on opportunities and challenges associated with short-term rentals. X Staff is assembling information in order to provide a comprehensive cost/benefit analysis by September 2019. 3. By July 1, 2019 City Manager, Assistant City Manager and Chief Financial Officer Recommend to the City Council for action the use of one-time money for long-term liabilities. X Recommendations for the use of one-time funds to expedite the pay-down of unfunded liabilities will be presented in the context of the FY 19/20 Proposed Budget. 4. By Oct. 1, 2019 Assistant City Manager (lead), Economic Development Director, Community Development Director, Police Chief, and Fire Chief. Conduct a City Council study session regarding the pros and cons of the cannabis economy, with the exception of dispensaries and cultivation, along with a cost-benefit analysis. X Kick-off meeting conducted, and data collection is ongoing regarding existing business models in other cities. 28 E THREE-YEAR GOAL: Enhance and modernize public safety service delivery WHEN WHO WHAT STATUS COMMENTS DONE ON TARGET REVISED 1. By April 15, 2019 By May 15, 2019 Fire Chief and Chief Financial Officer Present to the City Council for consideration a revised EMS fee schedule that aligns with rates in Orange County and reflects best practices. X EMS fee proposal will be presented in May 2019. 2. By May 15, 2019 Public Works Director and Police Chief Recommend to the City Council for action the award of a contract for the design of the Police Headquarters Modernization Project. X Approved by the City Council on 3-18-19. 3. By August 1, 2019 Police Chief and Chief Information Officer Bring to the City Council for action a proposal for replacement of the CAD/RMS system. X In progress. Project team members attended vendor demos in March. 4. By September 1, 2019 Assistant City Manager (lead), Police Chief and Chief Financial Officer Present funding options to the City Council to enhance funding for additional police staffing. X Staff recommendations will be made in the context of the FY 2019/20 Proposed Budget. 29 City of Huntington Beach File #:19-387 MEETING DATE:4/1/2019 REQUEST FOR CITY COUNCIL ACTION SUBMITTED TO:Honorable Mayor and City Council Members SUBMITTED BY:Fred A. Wilson, City Manager PREPARED BY:Kellee Fritzal, Deputy Director of Economic Development Subject: Adopt Resolution No. 2019-18 directing the execution and recordation of a Notice of Cessation of Special Tax - Improvement Area B of the City of Huntington Beach Community Facilities District (CFD) No. 2002-1 (McDonnell Centre Business Park) Statement of Issue: The Boeing Realty Company is in escrow to convey portions of its property to the Sares Regis Group, an Irvine based development firm, for development. City Council authorization is requested to adopt Resolution No. 2019 -18 authorizing the execution of a Notice of Cessation of Special Tax pertaining to “Improvement Area B” of the City of Huntington Beach Community Facilities District No. 2002-1 (McDonnell Centre Business Park). This action is necessary for Boeing and the Sares Regis Group to proceed with the development of “Improvement Area B” in the McDonnell Centre Business District. Financial Impact: There are no fiscal impacts associated with the removal of the tax lien. No bonds or other obligations have been issued or incurred with respect to Improvement Area B of Community Facilities District No. 2002-1, and no special taxes were levied on it. The removal of Improvement Area B from the District will provide Boeing with clear marketable title to consummate the sale of the property, which will allow the buyer of the property to proceed with planned development. Recommended Action: A) Adopt Resolution No. 2019-18, “A Resolution of the City Council of the City of Huntington Beach Directing the Execution of a Notice of Cessation of Special Tax - Improvement Area B of the City of Huntington Beach Community Facilities District No. 2002-1 (McDonnell Centre Business Park);” and , B) Authorize the City Manager and City Clerk to execute and record the Notice of Cessation and other related documents and actions. City of Huntington Beach Printed on 3/27/2019Page 1 of 3 powered by Legistar™30 File #:19-387 MEETING DATE:4/1/2019 Alternative Action(s): Do not adopt the Resolution and direct staff as necessary. Analysis: On April 1, 2002, the City Council adopted Resolution No. 2002-26 establishing the City of Huntington Beach Community Facilities District No. 2002-1 (McDonnell Centre Business Park) (the “District”), and designating two separate Improvement Areas, A and B, within the District. The District was formed in order to provide financing for public infrastructure improvements needed for the McDonnell/Boeing Development, and the Improvement Areas were established to coincide with the expected phases of development of the McDonnell/Boeing site. The District formation proceedings authorized the levy of special taxes on parcels in each of the two Improvement Areas, with the proceeds of the special taxes levied in an Improvement Area to be used to repay bonded indebtedness incurred for the respective Improvement Area. In addition, the special taxes levied were to pay for infrastructure improvements authorized to be funded for the Improvement Area, and to pay the costs of administering the District and any bonds issued for the Improvement Area. Under the applicable provisions of the Government Code, the Improvement Areas are effectively separate and distinct from each other, and bonds or other obligations of one Improvement Area are payable solely from the proceeds of the special taxes levied in that Improvement Area. On June 17, 2002, the City issued $4.9 million principal amount of special tax bonds, for Improvement Area A of the District. These proceeds have been used to finance public infrastructure improvements as part of the McDonnell/Boeing site that were authorized to be funded pursuant to the proceedings to form the District. The bonds are payable solely from special taxes levied on property in Improvement Area A of the District. To date, no bonds or other obligations have been issued or incurred with respect to Improvement Area B of the District, and no special taxes were levied on Improvement Area B. The Boeing Realty Company is in escrow to convey portions of the properties located in Improvement Area B to Sares Regis Group, an Irvine based development firm, which will develop the properties. Upon the close of escrow, the development firm has indicated that they will move forward with the development of the initial phase, which includes property located in Improvement Area B of the District. Boeing has requested that the City take action to remove Improvement Area B from the District. The removal of Improvement Area B from the District will provide Boeing with clear marketable title to consummate the sale. The removal of Improvement Area B requires City Council to adopt a Resolution in order to dissolve Improvement Area B and to release the special tax lien. The City Council, by adopting the Resolution, has determined that the District has not and will not in the future levy special taxes on property in Improvement Area B, effectively removing the property from the District. The Resolution directs the City Clerk to record a Notice of Cessation of Special Tax in the County Recorder’s Office, in a form required by the Government Code. Environmental Status: Not applicable City of Huntington Beach Printed on 3/27/2019Page 2 of 3 powered by Legistar™31 File #:19-387 MEETING DATE:4/1/2019 Strategic Plan Goal: Strengthen long-term financial and economic sustainability Attachment(s): 1. Resolution No. 2019-18 2. Map of City of Huntington Beach Community Facilities District No. 2002-1 City of Huntington Beach Printed on 3/27/2019Page 3 of 3 powered by Legistar™32 33 34 35 36 37 City of Huntington Beach File #:19-371 MEETING DATE:4/1/2019 REQUEST FOR CITY COUNCIL ACTION SUBMITTED TO:Honorable Mayor and City Council Members SUBMITTED BY:Fred A. Wilson, Executive Director PREPARED BY:Travis K. Hopkins, PE, Director of Public Works Subject: Award and authorize execution of a Three-Year Contract with Pinnacle Petroleum Inc. for Bulk Fuel Service - Jet-A Aviation Fuel in an amount not to exceed $300,000 per year Statement of Issue: In September of 2018, the City received bids for Bulk Fuel Services for Jet-A aviation fuel. City Council action is requested to award a three-year contract to the lowest responsive and responsible bidder, Pinnacle Petroleum, Inc. in an amount not to exceed $300,000 annually and $900,000 over the full three-year term. Financial Impact: Funds are available in Non-Departmental account 10040101.63495 for Jet Aviation fuel purchases. Recommended Action: Approve and authorize the Mayor and City Clerk to execute the “Service Agreement Between the City of Huntington Beach and Pinnacle Petroleum, Inc. for Bulk Fuel Services - Jet-A Aviation Fuel” in an amount not to exceed $300,000 per year for three years. Alternative Action(s): Do not approve the contract award and direct staff to proceed differently. Analysis: The Public Works Department manages the maintenance and restocking of the city’s fuel infrastructure, including the fuel island and storage tank at the Police Heliport that is used to fuel the Police helicopters. Police air support helicopters require approximately 53,000 gallons of Jet-A aviation fuel annually. Public Works fleet maintenance staff work with the Police Department Air Support Division and the wholesale fuel broker to place timely fuel orders as needed and to ensure sufficient fuel inventory for the Police helicopter program. The city’s former contracted fuel broker resigned their contract abruptly and without notice in early 2018. Since that time, staff has been utilizing interim broker services pending the outcome of the competitive bid process. In August of 2018, the City received bids under RFQ 18-0718 for a new City of Huntington Beach Printed on 3/27/2019Page 1 of 2 powered by Legistar™38 File #:19-371 MEETING DATE:4/1/2019 competitive bid process. In August of 2018, the City received bids under RFQ 18-0718 for a new vendor to provide bulk aviation fuel services. Bids were evaluated by direct comparison of each vendor’s proposed markup over wholesale prices. Following are the bid results listed from low to high. Please note that for the basis of bid comparison, the results shown are each vendor’s proposed markup. This markup, when applied to the commodity price of the fuel product at the city’s annual purchase volume, calculates to the city’s current annual expense for helicopter fuel at approximately $214,000. Vendor Markup per Gallon Pinnacle Petroleum, Inc.0.0486 Merrimac Energy Group 0.1260 World Fuel Services 0.2475 Patten Energy 0.3200 Staff is requesting that City Council approve the award and authorize the execution of the contract for bulk Jet-A aviation fuel with Pinnacle Petroleum, Inc., the lowest responsive and responsible bidder. Pinnacle Petroleum, Inc. is a Huntington Beach business. They were the lowest outright bidder so it was not necessary to apply the 5% local vendor preference. Environmental Status: The project includes a contract to purchase Jet-A aviation fuel via a broker to fuel City equipment and does not propose or involve physical changes to the environment and is not subject to CEQA per CEQA Guidelines Section 15061(b)(3), which exempts projects where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment. Strategic Plan Goal: Enhance and modernize public safety service delivery Attachment(s): 1. Service Agreement Between the City of Huntington Beach and Pinnacle Petroleum, Inc. City of Huntington Beach Printed on 3/27/2019Page 2 of 2 powered by Legistar™39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 City of Huntington Beach File #:19-399 MEETING DATE:4/1/2019 REQUEST FOR CITY COUNCIL ACTION SUBMITTED TO:Honorable Mayor and City Council Members SUBMITTED BY:Fred A. Wilson, City Manager PREPARED BY:Chris Slama, Interim Director of Community Services Subject: Approve and authorize execution of Cooperative Agreement No. C-8-1882 for the Orange County Enhanced Mobility for Seniors and Disabled (EMSD) Grant Program between the Orange County Transportation Authority (OCTA) and City of Huntington Beach, accept grant award and authorize expenditure and appropriation of funds Statement of Issue: The Community Services Department is requesting approval of Cooperative Agreement No. C-8- 1882 for the Orange County Enhanced Mobility for Seniors and Disabled (EMSD) Grant Program between the Orange County Transportation Authority (OCTA) and City of Huntington Beach. This grant will allow the City to purchase three replacement buses and related transportation software associated with transporting elderly and physically challenged persons ages 60 years and over. Financial Impact: The total OCTA grant award amount is not to exceed $253,000. Based on existing quotes obtained from the purchase of three vehicles and transportation software, the City is responsible for $61,502 which includes $42,502 for the buses and $19,000 for the new transportation software. Sufficient funds are available in Senior Transportation account 10345502 to cover the $61,502. An appropriation of $50,000 is requested in order to cover the reimbursable portion of the transportation software. Recommended Action: A) Approve and authorize the Mayor to execute “Cooperative Agreement No. C-8-1882 Between the Orange County Transportation Authority and City of Huntington Beach” for a term of October 1, 2018 , through September 30, 2020; and, B) Accept the grant award and approve the expenditure of funds for three buses and transportation software as referenced in Cooperative Agreement No. C-8-1882; and, C) Authorize the appropriation of $50,000 into account 10345502.63230 to be reimbursed through Cooperative Agreement No. C-8-1882. City of Huntington Beach Printed on 3/27/2019Page 1 of 2 powered by Legistar™59 File #:19-399 MEETING DATE:4/1/2019 Alternative Action(s): Do not approve Cooperative Agreement No. C-8-1882 with the Orange County Transportation Authority and direct staff accordingly. Analysis: The “Surf City Seniors on the Go!” senior transportation program is a donation-based program that provides curb-to-curb transportation services for Huntington Beach seniors ages 60 years and over. There is a need for Community Services to replace vehicles and other equipment in order to meet the increasing demand to transport senior citizens to and from their residences to locations within the community. The “Surf City Seniors on the Go!” Program transports seniors to medical appointments, shopping centers, social services, and the senior center. Funds are needed to replace three vehicles nearing the end of their functional life and to upgrade transportation software to increase service and efficiency. The vehicles being purchased through this grant include one small bus (8 accessible seats and 1 wheelchair) and two medium buses (11 accessible seats and 2 wheelchairs). The software will help eliminate the need for costly GPS tracking and push-to-talk radios, while increasing service and routing efficiency. Under Cooperative Agreement No. C-8-1882, OCTA agrees to award EMSD grant funds in an amount not to exceed $253,000 to fund the purchase of the three replacement vehicles and transportation software. Based on OCTA grant guidelines, a maximum of $203,000 (80%) may be used for vehicle purchases and $50,000 may be used to purchase the software. The City is responsible for a 20% match, plus any remaining balance in excess of the maximum funding available through the EMSD Grant. Per the existing quotes, estimated vehicle costs total $212,512. Of this amount, OCTA will pay 80% or $170,010 and the City will pay 20% or $45,502. In addition, estimated transportation software costs total $69,000. Of this amount, OCTA will pay $50,000 (the difference between $253,000 and the maximum allowed amount of $203,000 for the vehicles) and the City will pay 20% or $13,800, plus the residual balance of $5,200. Environmental Status: Not applicable. Strategic Plan Goal: Enhance and maintain high quality City services Attachment(s): 1) “Cooperative Agreement No. C-8-1882 Between the Orange County Transportation Authority and City of Huntington Beach” for a term of October 1, 2018, through September 30, 2020 City of Huntington Beach Printed on 3/27/2019Page 2 of 2 powered by Legistar™60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 City of Huntington Beach File #:19-406 MEETING DATE:4/1/2019 REQUEST FOR CITY COUNCIL ACTION SUBMITTED TO:Honorable Mayor and City Council Members SUBMITTED BY:Fred A. Wilson, City Manager PREPARED BY:Michele Warren, Director of Human Resources Subject: Approve the Appointment of Assistant City Manager Lori Ann Farrell-Harrison as Interim City Manager, approve Amendment to Employment Agreement, and adopt Resolution No. 2019-21 establishing compensation Statement of Issue: City Manager Fred A. Wilson will retire from City service on May 10, 2019. The City is in the process of conducting a nationwide recruitment to fill the position. The City intends to temporarily appoint Lori Ann Farrell-Harrison as the Interim City Manager. Financial Impact: No additional funding is required. The position of City Manager is budgeted in the FY 2018/19 Adopted Budget. Recommended Action: A) Approve and authorize the Mayor and City Clerk to execute the “Amendment to Employment Agreement Between the City of Huntington Beach and Lori Ann Farrell-Harrison” for the position of Interim City Manager; and, B) Adopt Resolution No. 2019-21, “A Resolution of the City Council of the City of Huntington Beach Modifying Salary and Benefits for Non-Represented Employees by Establishing the Compensation of Interim City Manager.” Alternative Action(s): Do not approve and direct staff accordingly. Analysis: City Manager Fred A. Wilson will retire from City service on May 10, 2019. The City is in the process of conducting a nationwide recruitment to fill the position. The City intends to temporarily appoint Lori Ann Farrell-Harrison as the Interim City Manager. Lori Ann Farrell-Harrison has 28 years of experience in the public and private sectors. She has served as the Assistant City Manager for the City of Huntington Beach since September 2017. Prior City of Huntington Beach Printed on 3/27/2019Page 1 of 2 powered by Legistar™75 File #:19-406 MEETING DATE:4/1/2019 served as the Assistant City Manager for the City of Huntington Beach since September 2017. Prior to her service as Assistant City Manager, Farrell-Harrison served as the City’s Chief Financial Officer for seven years. Ms. Farrell-Harrison has served as the Board President of the Port of Long Beach, as well as the Chief Financial Officer and City Controller for the City of Long Beach. Farrell-Harrison earned her Bachelor’s Degree from Barnard College of Columbia University and her Master’s Degree from the School of International and Public Affairs at Columbia University. Farrell-Harrison has served on a variety of Boards including, but not limited to, the Southern California Leadership Council, Gateway Cities Council of Governments, and the Board of Directors for Long Beach Transit. She is also an active member of the Orange County City Managers Association (OCCMA), Women Leading Government, the California City Management Foundation (CCMF), International City Management Association (ICMA), the Ivy League Plus Society, California Society of Municipal Finance Officers and the Government Finance Officers Association of the U.S. and Canada. To EmplEnvironmental Status: N/A Strategic Plan Goal: Enhance and maintain high quality City services Strengthen long-term financial and economic sustainability Enhance and maintain infrastructure Enhance and modernize public safety service delivery Attachment(s): 1. Resolution 2019-21, including Exhibit A - Non-Associated Employees’ Pay and Benefits Resolution No. 2016-50 and Exhibit 1 - Non-Associated Executive Management Salary Schedule 04/01/19 2. Lori Ann Farrell-Harrison Amendment to Employment Agreement including Exhibit A Employment Agreement dated 9/18/2017 City of Huntington Beach Printed on 3/27/2019Page 2 of 2 powered by Legistar™76 77 RESOLUTION NO. 2016-50 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF HUNTINGTON BEACH MODIFYING SALARY AND BENEFITS FOR NON-REPRESENTED EMPLOYEES INCLUDING THE ELECTED CITY ATTORNEY, CITY CLERK, AND CITY TREASURER WHEREAS, the City Council of the City of Huntington Beach desires to modify the salary and benefits for Non-Represented Employees upon adoption of this Resolution. NOW, THEREFORE, the City Council of the City of Huntington Beach does hereby resolve as follows: SECTION 1. Salaries and Benefits for Non-Represented employees shall be as reflected in Exhibit "A", attached hereto and incorporated by this reference. SECTION 2. The salary range for the elected City Attorney, City Clerk and City Treasurer shall be modified as reflected in the Non-Associated Executive Management Salary Schedule—Exhibit 1. SECTION 3. Benefits for the elected City Attorney, City Clerk and City Treasurer shall be as reflected in Exhibit "A", attached hereto and incorporated by this reference. SECTION 4. Resolution 2007-6, Resolution 2010-106, and Resolution 2014-94 are hereby repealed. SECTION 5. Any existing provisions in conflict with the foregoing, whether by minute action or resolution of the City Council, are hereby repealed. SECTION 6. All other benefits and salary ranges established and reflected in the Non- Associated Employees Pay and Benefits Resolution 2016-50, shall continue unless modified by City Council action. RLS 6/27/16/16-5325/138993/MV 1 Exhibit "A" - Resolution No. 2019-21 78 PASSED AND ADOPTED by the City Council of the City of Huntington Beach at a regular meeting thereof held on the 8"i6day of L.-7-4=e , 2016. RLS 6/27/16/16-5325/138993/MV 2 79 6 -SOLI-L770,1) .20/e &,‹,6/ NON-ASSOCIATED EMPLOYEES PAY AND BENEFITS RESOLUTION EXHIBIT A - NON-ASSOCIATED EMPLOYEES PAY AND BENEFIT PROVISION 1 SECTION I PAY 1 A. SALARY SCHEDULE 1 B. DIRECT DEPOSIT 1 C. ASSIGNED VEHICLE/AUTO ALLOWANCE 1 1. Department Heads 1 D. Deferred Compensation 1 SECTION II— HOURS OF WORK/OVERTIME/TIME OFF 1 A. EXECUTIVE LEAVE 1 B. FLEXIBLE AND ALTERNATIVE WORK SCHEDULES 2 1. 5/40 Work Schedule 2 2. 9/80 Work Schedule 2 3. Alternative Work Schedule 2 SECTION III — HEALTH AND OTHER INSURANCE BENEFITS 2 A. HEALTH INSURANCE 2 1. Medical, Dental and Vision Insurance 2 2. City and Employee Paid Health Insurance 2 3. Medical Cash Out 4 4. Section 125 Plan 4 B. LIFE AND ACCIDENTAL DEATH AND DISMEMBERMENT INSURANCE 4 C. LONG-TERM DISABILITY INSURANCE 4 D. CITY-PAID PHYSICAL EXAMINATIONS 5 E. MISCELLANEOUS 5 F. RETIREE MEDICAL COVERAGE FOR RETIREES NOT ELIGIBLE FOR THE CITY MEDICAL RETIREE SUBSIDY PLAN 5 G. POST-65 SUPPLEMENTAL MEDICARE COVERAGE 6 SECTION IV — RETIREMENT 6 A. BENEFITS 6 1. Self-Funded Supplemental Retirement Benefit 6 2. Medical Insurance for Retirees 6 B. PUBLIC EMPLOYEES' RETIREMENT SYSTEM CONTRIBUTIONS AND REPORTING 7 1. Miscellaneous Unit Members 7 2. Safety Unit Members 7 3. IRS Code 414(h)(2) 8 4. Pre-Retirement Optional Settlement 2 Death Benefit 8 5. Fourth Level of 1959 Survivor Benefits 8 6. VEBA Plan Requirements 8 SECTION V — LEAVE BENEFITS 10 Exhibit "A" to Non-Associated Resolution No. 2016-50 Item 25. - 5 HB -656 80 NON-ASSOCIATED EMPLOYEES PAY AND BENEFITS RESOLUTION A. GENERAL LEAVE 10 1. Accrual 10 2. Eligibility and Approval 10 3. Leave Benefit Entitlements 10 4. Conversion to Cash 10 B. HOLIDAYS AND PAY PROVISIONS 11 C. SICK LEAVE 11 1. Accrual 11 2. Credit 12 3. Usage 12 4. Payoff at Termination 12 D. BEREAVEMENT LEAVE 13 E. VOLUNTARY CATASTROPHIC LEAVE DONATION PROGRAM 13 SECTION VI — RETIREE SUBSIDY MEDICAL PLAN 13 SECTION VII - MISCELLANEOUS 13 A. COLLECTION OF PAYROLL OVERPAYMENTS 13 B. UNIFORMS AND CALPERS REPORTING 14 EXHIBIT 1 - NON-ASSOCIATED SALARY SCHEDULE 15 EXHIBIT 2 - RETIREE MEDICAL PLAN 16 EXHIBIT 3 - 9/80 WORK SCHEDULE 20 EXHIBIT 4- VOLUNTARY CATASTROPHIC LEAVE DONATION 22 Exhibit "A" to Non-Associated Resolution No. 2016-50 ii HB 657 Item 25. -6 81 NON-ASSOCIATED EMPLOYEES PAY AND BENEFIT PROVISIONS EXHIBIT A SECTION I — PAY A. Salary Schedule 1. All current Non-Associated employees shall receive the salaries as identified in Exhibit 1. 2. The City Council shall set the salaries of the elected executive management positions identified in Exhibit 1, at any rate within the designated salary range. 3. The City Manager is authorized to set the salaries of the non-elected executive management positions identified in Exhibit 1 at any rate at or below the control point of the designated salary range. The City Manager is authorized to increase the salary by any percentage not greater than 5% based upon performance at annual review and market data. However, no salary for a new employee may be set above the control point at any time without City Council approval. B. Direct Deposit All Non-Associated employees are required to utilize direct deposit of payroll checks. C. Assigned Vehicle/Auto Allowance 1. Department Heads Appointed Department Heads and the City Clerk, City Treasurer, and City Attorney shall have the option of an assigned City vehicle or an auto allowance in the amount of two hundred thirty dollars and seventy-seven cents ($230.77) per bi-weekly pay period plus reimbursement of out-of-town travel at the approved mileage rate. D. Deferred Compensation Effective the beginning of the pay period following City Council approval of this resolution, each employee covered by this resolution, including the City Attorney, City Clerk and City Treasurer, shall receive a one-time deposit to the employee's 457 Deferred Compensation account in the amount of $3,800.00. 1. This shall be a single, one-time only deposit. All appropriate Federal and State legal mandates regarding the tax-treatment of this one-time deposit shall apply. SECTION II — HOURS OF WORK/TIME OFF A. Executive Leave Non-Associated exempt employees shall not be eligible for overtime compensation. Exempt department heads shall be credited with eighty (80) hours of executive leave per calendar year. Item 25. - 7 "A" to Non-Associated Resolution No. 2016-50 HB -658 82 NON-ASSOCIATED EMPLOYEES PAY AND BENEFITS RESOLUTION B. Flexible and Alternative Work Schedules 1. 5/40 Work Schedule The 5/40 work schedule shall be defined as working five (5) eight (8) hour days Monday through Friday each week with a one-hour lunch during each work shift, totaling a forty (40) hours work week. 2. 9/80 Work Schedule The 9/80 work schedule, as outlined in Exhibit 3, shall be defined as working nine (9) days for eighty (80) hours in a two week pay period by working eight (8) days at nine (9) hours per day and working one (1) day for eight (8) hours (Friday), with a one-hour lunch during each work shift, totaling forty (40) hours in each FLSA designated work week. The 9/80 work schedule shall not reduce service to the public, departmental effectiveness, productivity and/or efficiency as determined by the City Manager or designee. 3. Alternative Work Schedule Non-associated employees may elect any alternative work schedule approved by the City Manager or designee. SECTION III — HEALTH AND OTHER INSURANCE BENEFITS A. Health Insurance 1. Medical, Dental and Vision Insurance The City shall continue to make group medical, dental and vision benefits available to all Non-Associated employees. 2. City and Employee Paid Health Insurance The City and the employee shall pay for health insurance premiums for employees and qualified dependent(s) effective the first of the month following the employee's hire date. The employee payroll deduction for premium contributions shall be deducted on a pre-tax basis. Such deductions shall be aligned with the effective date of coverage and the ending date of coverage upon employment separation. The employee's payroll deduction amount shall begin no later than the beginning of the first full pay period following the effective date of coverage and pro-rated for coverage through the end of the month in which employment was separated. Exhibit "A" to Non-Associated Resolution No. 2016-50 HB -659- Item 25. - 8 83 NON-ASSOCIATED EMPLOYEES PAY AND BENEFITS RESOLUTION i. Health Plan Employee and Employer Contributions Chart for Non-Safety Classifications in EXHIBIT 1 City of Huntington Beach 2016 Health Premiums and Contributions Effective pay period following final City Council approval Non -Associated/Non -Safety Plan IJ Tier Mo thly Pre p m ium Employer Monthly Contribution Employee Monthly Contribution Employee Bi-Weekly Contribution Kaiser Single 466.65 466.65 0.00 0.00 Two-Party 1,022.11 974.36 47.75 22.04 Family 1,343.90 1,170.04 173.86 80.24 Blue Shield HMO Single 671.00 640.76 30.24 13.96 Two-Party 1,466.00 974.36 491.64 226.91 Family 1,896.00 1,170.04 725.96 335.06 Blue Shield PPO Single 736.00 736.00 0.00 0.00 Two-Party 1,555.00 1,135.78 419.22 193.49 Family 1,927.00 1,314.31 612.69 282.78 Delta Dental PPO Single 58.10 45.02 13.08 6.04 Two-Party 108.60 85.91 22.69 10.47 Family 143.20 122.18 21.02 9.70 Delta Care HMO Single 30.11 30.11 0.00 0.00 Two-Party 51.19 51.19 0.00 0.00 Family 78.29 78.29 0.00 0.00 VSP Vision Single 25.12 0.00 25.12 11.59 Two-Party 25.12 0.00 25.12 11.59 Family 25.12 0.00 25.12 11.59 Medical Opt-Out: $466.65 per month ($215.38 bi-weekly) ii. "Safety Member" Health Premiums - Employer Contribution Employees that are classified as "safety member" by the California Public Employees' Retirement System (CalPERS) may have access to the medical plans offered by CalPERS as contracted by the City. In accordance with eligibility provisions, the Police Chief and the Fire Chief may elect to enroll in the CalPERS health insurance program offered by the City. The City's maximum monthly employer contributions for the CalPERS health insurance program is set forth in the current City of Huntington Beach Non- Associated Safety Health Premiums and Contributions Chart. The amounts listed therein include the mandated Public Employees' Medical and Hospital Care Act (PEMHCA) contribution. Item 25. - 9 "A" to Non-Associated Resolution No. 2016-50 1113 -660 84 NON-ASSOCIATED EMPLOYEES PAY AND BENEFITS RESOLUTION iii. Employees shall not be entitled to the difference between the employer contribution and the premiums for insurance plan(s) selected by the employee. iv. Future Premiums The City "caps" its contributions toward monthly group medical, dental and vision plan premiums by category (EE, EE + 1, and EE + 2 or more) as outlined in sections i and ii above. The City agrees to increase the contribution toward monthly group medical by $200 per plan, per tier, effective following City Council approval of this resolution. The employee and employer contributions rates set forth in sections i and ii above shall remain in effect in 2017 and beyond unless otherwise modified by a successor Non-Associated Resolution. Employee and City Contributions subject to change as a result of City Council approval. The City's contribution caps for dental and vision in effect as of August 1, 2014 shall not be increased. The City's contribution caps will remain in place, even if premium increases result in these additional costs being borne by the employee. 3. Medical Cash Out If an employee is covered by a medical program outside of a City-provided program (evidence of which must be supplied to Human Resources), the employee may elect to discontinue City medical coverage and receive the monthly value of the City's contribution to the lowest cost employee-only medical plan paid bi-weekly. 4. Section 125 Plan Employees shall be eligible to participate in a City-approved Section 125 Flexible Spending Account Plan the same as all other eligible employees, as provided by IRS law. This plan allows employees to use pre-tax salary to pay for regular childcare, adult dependent care and/or medical expenses. B. Life and Accidental Death and Dismemberment Insurance Each Non-Associated employee shall be provided with $50,000 life insurance and $50,000 accidental death and dismemberment insurance paid for by the City. Each employee shall have the option, at his/her own expense, to purchase additional amounts of life insurance and accidental death and dismemberment insurance to the extent provided by the City's current providers. Evidence of insurability is contingent upon total participation in additional amounts. C. Long-Term Disability Insurance This program provides benefits for each incident of illness or injury after a waiting period of thirty (30) calendar days during which the Non-Associated employee may use accumulated sick leave, general leave, executive leave pay. Subsequent to the thirty-(30) day waiting period, the employee will be covered by an insurance plan paid for by the City providing sixty-six and two- thirds percent (66 2/3%) of the first $12,500 of the employee's basic monthly earnings up to a maximum monthly benefit of $8,332.50. The maximum benefit period for disability due to injury or illness shall be to age sixty-five (65). Exhibit "A" to Non-Associated Resolution No. 2016-50 HB -661- Item 25. - 10 85 NON-ASSOCIATED EMPLOYEES PAY AND BENEFITS RESOLUTION Days and months refer to calendar days and months. Benefits under the plan are integrated with sick leave, Worker's Compensation, Social Security and other non-private program benefits to which the employee may be entitled. Disability is defined as: "The inability to perform all of the duties of regular occupation during two years and thereafter the inability to engage in any employment or occupation, for which he/she is fitted by reason of education, training or experience." Rehabilitation benefits are provided in the event the individual, due to disability, must engage in other occupation. Survivor's benefits continue the plan payment for three (3) months beyond death. A copy of the plan is on file in the Human Resources Department. D. City-Paid Physical Examinations Non-Associated employees shall be provided, once every two years, with a City-paid physical examination comparable to the current pre-placement class physical examination or reimbursed the amount authorized for said physical examination. No more than one-half of the eligible employees shall receive examinations in any one fiscal year. Said exam shall be comprehensive in nature and shall include: 1. A complete medical history, physical exam and review of results by physician. 2. Health testing including vision, hearing, breathing, chest x-ray and stress EKG. 3. Laboratory test including standard chemical test, blood count, HDL, urinalysis and stool test for blood. E. Miscellaneous When a Non-Associated employee is on a leave of absence without pay for reason of medical disability, the City shall maintain the City-paid insurance premiums during the period the employee is in a non-pay status for the length of said leave, not to exceed twenty-four (24) months. F. Retiree Medical Coverage for Retirees Not Eligible for the City Medical Retiree Subsidy Plan Employees who retire from the City after January 1, 2004, and are granted a retirement allowance by the California Public Employees' Retirement System and are not eligible for the City's Retiree Subsidy Medical Plan may choose to participate in City-sponsored medical insurance plans until the first of the month in which they turn age sixty-five (65). The retiree shall pay the full premium for City-sponsored medical insurance for themselves and/or qualified dependents without any City subsidy. Employees who retire from the City and receive a retirement allowance from the California Public Employees' Retirement System and are not eligible for the City's Retiree Subsidy Medical Plan and choose not to participate in City-sponsored medical insurance upon retirement permanently lose eligibility for this insurance. However, if a retiree who is not eligible for the City's Retiree Subsidy Medical Plan chooses not to participate in City-sponsored medical insurance plans because the retiree has access to other group medical insurance, and subsequently loses eligibility for that group medical insurance, the retiree and their qualified dependents will have access to City-sponsored medical insurance plans reinstated. Item 25. - "to Non-Associated Resolution No. 2016-50 HB -662 86 NON-ASSOCIATED EMPLOYEES PAY AND BENEFITS RESOLUTION Eligibility for Retiree Medical Coverage terminates the first of the month in which the retiree or qualified dependent turns age sixty-five (65). G. Post-65 Supplemental Medicare Coverage Retirees who are participating in the Retiree Subsidy Medical Plan as of January 1, 2004 and all future retirees who meet the criteria to participate in City-sponsored medical insurance, with or without the Retiree Medical Subsidy Plan, may participate in City-sponsored medical insurance plans that are supplemental to Medicare, after a contract is in place between the City and a health insurance provider. A retiree or qualified dependent must choose to participate in City-sponsored medical insurance plans that are supplemental to Medicare beginning the first of the month in which the retiree or qualified dependent turns age sixty-five (65). The retiree shall pay the full premium to participate in City-sponsored medical insurance plans that are supplemental to Medicare for themselves or qualified dependents without any City subsidy. Retirees or qualified dependents, upon turning age 65, who choose not to participate in the City-sponsored medical insurance plans that are supplemental to Medicare permanently lose eligibility for t this insurance. SECTION IV — RETIREMENT A. Benefits 1. Self-Funded Supplemental Retirement Benefit In the event a Non-Associated employee member elects Option #1, #2, #2W, #3, #3W or #4 of the Public Employees' Retirement law, the City shall pay the difference between such elected option and the unmodified allowance which the member would have received for his or her life alone as provided in California Government Code sections 21455, 21456, 21457, and 21548 as said referenced Government Code sections exist as of the date of this agreement. This payment shall be made only to the member (Non- Associated employee), shall be payable by the City during the life of the member, and upon that member's death, the City's obligation shall cease. Unless previously excluded by employment or resolution, eligibility for this benefit is limited to employees hired before December 27, 1997. 2. Medical Insurance for Retirees a. Upon retirement, whether service or disability connected, each Non Associated employee shall be entitled to cause self, spouse and dependents to participate fully in the City's group health insurance program at the equivalent of the City's group premium rate in accordance with the provisions specified by Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA). Such participation shall be at employee's expense and upon terms, conditions and restrictions currently in effect. Exhibit "A" to Non-Associated Resolution No. 2016-50 HB 663 Item 25. - 12 87 NON-ASSOCIATED EMPLOYEES PAY AND BENEFITS RESOLUTION b. As an alternative to the benefit described in paragraph IV.A.2.a above, the City will provide a financial contribution towards the cost of retiree medical premiums as described in Section VI. B. Public Employees' Retirement System Contributions and Reporting 1. Miscellaneous Members a. The City shall provide all miscellaneous employees described as "classic members by the Public Employees' Pension Reform Act of 2013 — "PEPRA" with that certain retirement program commonly known and described as the "2.5% at age 55 plan" which is based on the retirement formula as set forth in the California Public Employees' Retirement System (CalPERS), Section 21354 of the California Government Code. b. Miscellaneous bargaining unit "classic members" shall pay to CalPERS as part of the required member retirement contribution eight percent (8%) of pensionable income. This provision shall not sunset. c. The City shall contract with CalPERS to have retirement benefits calculated based upon the "classic" employee's highest one year's compensation, pursuant to the provisions of Section 20042 (highest single year). d. The obligations of the City and the retirement rights of employees as provided in this Article shall survive the term of this resolution. e. For "New" Members within the meaning of the California Public Employees' Pension Reform Act of 2013. 1) New Members shall be governed by the two percent at age 62 (2% @ 62) retirement formula set forth in Government Code section 7522.20. 2) Final compensation will be based on the highest annual average compensation earnable during the 36 consecutive months immediately preceding the effective date of his or her retirement, or some other 36 consecutive month period designated by the member. 3) Effective January 1, 2013, "new" members as defined by PEPRA and determined by CalPERS, shall contribute one half (50%) of the normal cost as established by CalPERS. 2. Safety Members a. The City shall provide all safety employees described as "classic" members by the Public Employees' Pension Reform Act of 2013 — "PEPRA" with that certain retirement program commonly known and described as the "3% at age 50 plan" which is based on the retirement formula as set forth in the California Public Employees' Retirement System (CalPERS), Section 21362.2 of the California Government Code. Item 25. - 13 "to Non-Associated Resolution No. 2016-50 HB -664 88 NON-ASSOCIATED EMPLOYEES PAY AND BENEFITS RESOLUTION b. All safety employees described as "classic" members shall pay to CalPERS as part of the required member retirement contribution nine percent (9%) of pensionable income. This provision shall not sunset. c. The City shall contract with CalPERS to have retirement benefits calculated based upon the "classic" employee's highest one year's compensation, pursuant to the provisions of Section 20042 (highest single year). d. The obligations of the City and the retirement rights of employees as provided in this Article shall survive the term of this resolution. e. For "New" Members within the meaning of the California Public Employees' Pension Reform Act of 2013. 1) New Members shall be governed by the two and seven tenths percent at age 57 (2.7% @ 57) retirement formula set forth in Government Code section 7522.25(d) 2) Final compensation will be based on the highest annual average compensation earnable during the 36 consecutive months immediately preceding the effective date of retirement, or some other 36 consecutive month period designated by the member. 3) Effective January 1, 2013, "new" members as defined by PEPRA and determined by CalPERS, shall contribute one half (50%) of the normal cost, as established by CalPERS. 3. IRS Code Section 414(h)(2) The City has adopted the CalPERS Resolution in accordance with IRS Code section 414(h)(2) to ensure that both the employee contribution and the City pickup of the required member contribution are made on a pre-tax basis. However, ultimately, the tax status of any benefit is determined by the law. 4. Pre-Retirement Optional Settlement 2 Death Benefit Non-Associated employees shall be covered by the Pre-Retirement Optional Settlement 2 Death Benefit as identified in Section 21548 of the California Government Code when approved by the City Council. 5. Fourth Level of 1959 Survivor Benefits Non-Associated employees shall be covered by the Fourth Level of the 1959 Survivor Benefit as identified in Section 21574 of the California Government Code. 6. VEBA Plan Requirements a. Eligibility Defined Effective December 23, 2009, all eligible Unrepresented Management Employees with 25 years of continuous service to the City of Huntington Beach will participate in the Plan. An eligible employee is an employee who works twenty (20) or more hours per week and receives benefits. Exhibit "A" to Non-Associated Resolution No. 2016-50 HI3 -665- Item 25. - 14 89 NON-ASSOCIATED EMPLOYEES PAY AND BENEFITS RESOLUTION b. Employee Contributions c. Leave Payout Each eligible unrepresented management employee shall designate all leave payouts to be rolled over to his/her VEBA Plan account based on the established range upon separation from City employment. d. Participant Account A separate account is maintained for each contributing eligible unrepresented management employee, which documents the employee's contributions and disbursements. Contributions to a VEBA plan account as well as any disbursements to cover nonreimbursed, post-tax medical care expenses are both tax free. Eligible benefits subject to reimbursement by the Plan shall be limited to long-term care expenses and nonreimbursed medical premiums, co-pays, prescribed drug expenses and other medical care costs as that term is defined by the Internal Revenue Code Section 213. e. Administrative Fees Any Plan administrative fees will be deducted from interest on the total Plan investments. An eligible unrepresented management employee's Plan account is subject to a monthly administrative fee for expenses related to recordkeeping, claims processing, and claims reimbursement. The fee will first be deducted from interest on total plan investments, and then deducted, if necessary, from the employee's individual account. f. Dispute Resolution This Resolution and any disputes arising under or in connection with this Resolution shall not be subject to any dispute resolution procedures in the City's Personnel Rules, nor shall this Resolution and any such dispute relating thereto be subject to the jurisdiction of the City's Personnel Board for any reason whatsoever. g. Indemnification All Unrepresented Management Employees agree to indemnify and hold the City of Huntington Beach harmless against any claims made of any nature and against any suit instituted against the City arising from this Resolution, including, but not limited to, claims arising from an employee's participation in VEBA or from any salary reduction initiated by the City for VEBA contributions. Item 25. - 15 ." to Non-Associated Resolution No. 2016-50 HB -666 90 NON-ASSOCIATED EMPLOYEES PAY AND BENEFITS RESOLUTION SECTION V — LEAVE BENEFITS A. General Leave 1. Accrual Employees will accrue General Leave at the accrual rates outlined below. General leave may be used for any purpose, including vacation, sick leave, and personal leave. General leave for non-associated employees shall be accrued as follows: Years of Service Annual General Leave Allowance Biweekly General Leave Allowance First through Fourth Year 176 hours 6.77 Fifth through Ninth Year 200 hours 7.69 Tenth through Fourteenth Year 224 hours 8.62 Fifteenth Year and Thereafter 256 hours 9.85 2. Eligibility and Approval General leave must be pre-approved except for illness, injury or family sickness, which may require a physician's statement for approval. General leave accrued time is to be computed from hiring date anniversary. Employees shall not be permitted to take general leave in excess of actual time earned. Employees shall not accrue general leave in excess of six hundred forty (640) hours. Employees may not use their general leave to advance their separation date on retirement or other separation from employment. 3. Leave Benefit Entitlements The City shall comply with all State and Federal leave benefit entitlement laws. An eligible employee on an approved leave shall be allowed to use applicable earned Sick Leave, General Leave, or Executive Leave for family or personal health issues. For more information on employee leave options contact the Human Resources Department. 4. Conversion to Cash a. Pay Off at Termination An employee shall be paid for unused general leave upon termination of employment at which time such terminating employee shall receive compensation at their current salary rate for all unused, earned general leave to which they are entitled up to and including the effective date of their termination. b. Conversion to Cash Two times during each fiscal year, each permanent employee shall have the option to convert into a cash payment or deferred compensation up to a total of one hundred-twenty (120) general leave benefit hours per fiscal year. The employee shall give payroll two (2) weeks advance notice of their decision to exercise such option. Exhibit "A" to Non-Associated Resolution No. 2016-50 HB -667 Item 25. -16 91 NON-ASSOCIATED EMPLOYEES PAY AND BENEFITS RESOLUTION c. One Week Minimum Vacation Requirement The City Manager may require certain positions which handle money or transfer funds to take a minimum of one week, (i.e., five consecutive work days) paid vacation each calendar year. d. Deferred Compensation Contribution at Time of Separation The value of any unused earned leave benefits may be transferred to deferred compensation at separation (including retirement), but only during the time that the employee is actively employed with the City. The latest opportunity for such transfer must be the beginning of the pay period prior to the employee's last day of employment. B. Holidays and Pay Provisions 1. Non-Associated employees shall receive the following legal holidays as of the first pay period following adoption of the Non-Associated Resolution paid in full per the employee's regularly scheduled work shift: (1) New Year's Day (January 1) (2) Martin Luther King Day (third Monday in January) (3) Presidents Day (third Monday in February) (4) Memorial Day (last Monday in May) (5) Independence Day (July 4) (6) Labor Day (first Monday in September) (7) Veteran's Day (November 11) (8) Thanksgiving Day (fourth Thursday in November) (9) The Friday after Thanksgiving (10) Christmas Day (December 25) 2. Any day declared by the President of the United States to be a national holiday or by the Governor of the State of California to be a state holiday and adopted as an employee holiday by the City Council of the City of Huntington Beach. 3. For Civic Center holiday closure purposes, holidays which fall on Sunday shall be observed the following Monday, and those falling on Saturday shall be observed the preceding Friday. C. Sick Leave 1. Accrual No employee shall accrue sick leave. Item 25. - 17," to Non-Associated Resolution No. 2016-50 HB -668 92 NON-ASSOCIATED EMPLOYEES PAY AND BENEFITS RESOLUTION 2. Credit Employees assigned to Non-Associated shall carry forward their sick leave balance and shall no longer accrue sick leave credit. 3. Usage Employees may use accrued sick leave for the same purposes for which it was used prior to December 25, 1999. Sick leave shall not be used to extend absences due to work related (industrial) injuries or illnesses, this provision shall be added to Personnel Rule 18.10. 4. Payoff at Termination a. Non Associated employees with continuous service with the City since November 20, 1978, shall be entitled to the following sick leave payoff plan: At involuntary termination by reason of disability, or by death, or by retirement, employees shall be compensated at their then current rate of pay for seventy-five percent (75%) of all unused sick leave accumulated as of July 1, 1972, plus fifty percent (50%) of unused sick leave accumulated subsequent to July 1, 1972, up to a maximum of seven hundred and twenty hours (720) of unused, accumulated sick leave, except as provided in paragraph V.C.5.d below. Upon termination for any other reason, employees shall be compensated at their then current rate of pay for fifty percent (50%) of all unused accumulated sick leave, up to a maximum of 720 hours of such accumulated sick leave. b. Non-Associated employees hired after November 20, 1978 shall be entitled to the following sick leave payoff plan: Upon termination, all employees shall be paid, at their then current salary rate, for twenty-five percent (25%) of unused, earned sick leave to 480 hours accrued, and for thirty-five percent (35%) of all unused, earned sick leave in excess of 480 hours, but not to exceed 720 hours, except as provided in paragraph V.C.2.c below. c. Except as provided in paragraph V.C.5.d below, no Non-Associated employee shall be paid at termination for more than 720 hours of unused, accumulated sick lave. However, employees may utilize accumulated sick leave on the basis of "last in, first out," meaning that sick leave accumulated in excess of the maximum for payoff may be utilized first for sick leave, as defined in Personnel Rule 18-8. d. Non-Associated employees who had unused, accumulated sick leave in excess of 720 hours as of July 5, 1980, shall be compensated for such excess sick leave remaining on termination under the formulas described in paragraphs V.C.5.a and b above. In no event shall any employee be compensated upon termination for any accumulated sick leave in excess of the "cap" established by this paragraph (i.e., 720 hours plus the amount over 720 hours existing on July 5, 1980). Employees may continue to utilize sick leave accrued after that date in excess of such "cap" on a "last in, first out" basis. To the extent that any such "capped" amount of excess sick leave over 720 hours is utilized, the maximum compensable amount shall be correspondingly reduced. (Example: Employee had 1,000 hours accumulated. Six months after July 5, 1980, employee had accumulated another 48 hours. Employee Exhibit "A" to Non-Associated Resolution No. 2016-50 HB 669- Item 25. - 18 93 NON-ASSOCIATED EMPLOYEES PAY AND BENEFITS RESOLUTION is then sick for 120 hours. Employee's maximum sick leave "cap" for compensation at termination is now reduced by 72 hours to 928.) D. Bereavement Leave Employees shall be entitled to bereavement leave not to exceed twenty-four (24) hours in each instance of death in the immediate family. Immediate family is defined as father, mother, sister, brother, spouse, children, grandfather, grandmother, stepfather, stepmother, step grandfather, step grandmother, grandchildren, stepsisters, stepbrothers, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-law, stepchildren, or wards of which the employee is the legal guardian. E. Voluntary Catastrophic Leave Donation Program Under certain conditions, an employee may donate leave time to another employee in need. The program is outlined in Exhibit 4. SECTION VI — RETIREE SUBSIDY MEDICAL PLAN An employee who has retired from the City shall be entitled to participate in the City-sponsored medical insurance plans in accordance with the Retiree Subsidy Medical Plan as outlined in Exhibit 2. Employees hired on or after December 1, 2009, shall not be eligible for this benefit. SECTION VII — MISCELLANEOUS A. Collection of Payroll Overpayments In the event that a payroll overpayment is discovered and verified, and considering all reasonable factors including the length of time that the overpayment was made and if and when the employee could have reasonably known about such overpayment, the City shall take action to collect from the employee the amount of overpayment(s). Such collection shall be processed by payroll deduction over a reasonable period of time considering the total amount of overpayment. In the event the employee separates from employment during the collection period, the final amount shall be deducted from the last payroll check of the employee. If applicable, the balance due from the employee shall be communicated upon employment separation if the last payroll check does not sufficiently cover the amount due the City. It shall be the responsibility of the employee and the City to periodically monitor the accuracy of compensation payments or reimbursements due to the possibility of a clerical oversight or error. The City reserves the right to also collect compensation overpayments caused by or the result of misinterpretation of a pay provision by non-authorized personnel. The interpretation of all pay provisions shall be administered by the City Manager or designee and as adopted by the City Council. Unauthorized compensation payments shall not constitute a past practice (1/03/05). Item 25. - 19' " to Non-Associated Resolution No. 2016-50 HB -670 94 NON-ASSOCIATED EMPLOYEES PAY AND BENEFITS RESOLUTION B. Uniforms and CalPERS Reporting The City provides uniforms to active duty employees in the classifications of Police Chief and Fire Chief. These employees are required to wear a standard uniform for appearance, uniformity, and public recognition purposes. The City will report to the California Public Employees' Retirement System (CalPERS) the average annual cost of uniforms as special compensation for each eligible employee in accordance with Title 2, California Code of Regulations, Section 571(a)(5). Exhibit "A" to Non-Associated Resolution No. 2016-50 FIB 671- Item 25. -20 95 NON-ASSOCIATED EMPLOYEE PAY AND BENEFIT PROVISIONS EXHIBIT 1 NON-ASSOCIATED EXECUTIVE MANAGEMENT SALARY SCHEDULE EFFECTIVE SEPTEMBER 24, 2016 - 2.0% Increase Job No. Description Pay Grade Starting Point Control Point High Point EXECUTIVE MANAGEMENT 0591 City Manager NA0591 NA NA 128.29 DEPARTMENT HEADS 0592 Assistant City Manager NA0592 85.82 95.51 106.32 0009 Director of Building & Safety NA0009 74.64 83.07 92.46 0014 Director of Community Services NA0014 74.64 83.07 92.46 0008 Director of Economic Development NA0008 74.64 83.07 92.46 0574 Director of Human Resources NA0574 74.64 83.07 _ 92.46 0479 Chief Information Officer NA0479 74.64 83.07 92.46 0007 Director of Library Services NA0007 69.94 77.85 86.66 0589 Community Development Director NA0589 80.82 89.97 100.13 0010 Director of Public Works NA0010 80,82 89.97 100.13 0518 Chief Financial Officer NA0518 80.82 89.97 100.13 0015 Fire Chief NA0015 85.82 106.31 95.51 0011 Police Chief NA0011 85.82 95.52 106.31 ELECTED OFFICIALS 0016 City Attorney NA0016 100.18 111.51 124.10 0017 City Clerk NA0017 69.94 77.85 86.66 ELECTED OFFICIALS PART-TIME 0018 City Treasurer - PART-TIME NA0018 74.64 83.07 92.46 *Annual Salary Not to Exceed $51,812 CONTRACT NON-DEPARTMENT HEAD Job No. Description Pay Grade A B C D E 0593 Chief Assistant City Attorney NA0593 71.05 74.96 79.08 83.43 88.01 Historical changes to Non-Associated position titles: Per Ordinance 3855 adopted on 1/19/10, Building & Safety Department duties were combined with the Planning Department creating a new position of Director of Planning and Building. Per Resolution 2010-106 adopted on 12/20/10 the City Treasurer was established as a part-time position. Per Ordinance 3906 adopted on 2/7/11 amended the title of City Administrator to City Manager. Per Ordinance 3959 adopted on 10/01/12, the position of Chief Assistant City Attorney was established. Per Resolution 2012-95 adopted on 12/17/12 the title of Deputy City Manager was changed to Assistant City Manager. Per Ordinance 4086 adopted 4/18/16: the position of Finance Director was changed to Chief Financial Officer, the Director of Information Services was changed to Chief Information Officer and the Director of Planning and Building was changed to Community Development Director. Item 25. - 21" to Non-Associated Resolution No. 2016-50 HB -672 96 NON-ASSOCIATED EMPLOYEES PAY AND BENEFITS RESOLUTION EXHIBIT 2 RETIREE MEDICAL PLAN An employee who has retired from the City shall be entitled to participate in the City sponsored medical insurance plans and the City shall contribute toward monthly premiums for coverage in an amount as specified in accordance with this Plan, provided: A. At the time of retirement the employee has a minimum of ten (10) years of continuous full time City service or is granted an industrial disability retirement; and B. At the time of retirement, the employee is employed by the City; and C. Following official separation from the City, the employee is granted a retirement allowance by the California Public Employees' Retirement System. The City's obligation to pay the monthly premium as indicated shall be modified downward or cease during the lifetime of the retiree upon the occurrence of any one of the following: 1 On the first of the month in which a retiree or dependent reaches age 65 or on the date the retiree or dependent can first apply and become eligible, automatically or voluntarily, for medical coverage under Medicare (whether or not such application is made) the City's obligation to pay monthly premiums may be adjusted downward or eliminated. Benefit coverage at age 65 under the City's medical plans shall be governed by applicable plan document. 2. In the event of the death of any employee, whether retired or not, the amount of the retiree medical insurance subsidy benefit which the deceased employee was receiving at the time of his/her death would be eligible to receive if he/she were retired at the time of death, shall be paid on behalf of the spouse or family for a period not to exceed twelve (12) months. D. Schedule of Benefits 1. Minimum Eligibility for Benefits With the exception of an industrial disability retirement, eligibility for benefits begins after an employee has completed ten (10) years of continuous full time service with the City of Huntington Beach. Said service must be continuous unless prior service is reinstated at the time of his/her rehire in accordance with the City's Personnel Rules. Employees hired on or after December 1, 2009 shall not be eligible for this benefit. 2. Disability Retirees Industrial disability retirees with less than ten (10) years of service shall receive a maximum monthly payment toward the premium for health insurance of $121. Payments shall be in accordance with the stipulations and conditions, which exist for all retirees. Payment shall not exceed dollar amount, which is equal to the full cost of premium for employee only. 3. Marital Status — Married retirees eligible for benefits under the Retiree Medical Subsidy Plan may each receive the benefit earned pursuant to Section 4 — Exhibit "A" to Non-Associated Resolution No. 2016-50 HB -673- Item 25. - 22 97 NON-ASSOCIATED EMPLOYEES PAY AND BENEFITS RESOLUTION Maximum Monthly Subsidy Payments, whether enrolled individually as the plan enrollee or whether enrolled as a dependent on any City-sponsored medical plan. a. In the case where a retiree is married to a City employee (active or retired) who is not an unrepresented/non-associated employee or retiree, this provision shall remain applicable. b. This provision shall apply to State of California registered domestic partners the same as married spouses. 4. Maximum Monthly Subsidy Payments Payment amounts may be reduced each month as dependent eligibility ceases due to death, divorce or loss of dependent child status. However, the amount shall not be reduced if such reduction would cause insufficient funds needed to pay the full premium for the employee and the remaining dependents. In the event no reduction occurs and the remaining benefit premium is not sufficient to pay the premium amount for the employee and the eligible dependents, said needed excess premium amount shall be paid by the employee. All retirees, including those retired as a result of disability whose number of years of service prior to retirement, exceeds ten (10) years of continuous full time service, shall be entitled to maximum monthly payment of premiums by the City for each year of completed City service as follows: Maximum Monthly Payment for Retirements After: Years of Service Subsidy 10 $121 11 136 12 151 13 166 14 181 15 196 16 211 17 226 18 241 19 256 20 271 21 286 22 300 23 315 24 330 25 344 Item 25. - 23' to Non-Associated Resolution No. 2016-50 HB -674 98 NON-ASSOCIATED EMPLOYEES PAY AND BENEFITS RESOLUTION MISCELLANEOUS PROVISIONS A. Eligibility: 1. The effective start-up date of the Retiree Subsidy Medical Plan for the various employee groups shall be the first of the month following retirement date. 2. A retiree may change plans, add dependents, etc., during annual open enrollment. The Human Resources Department shall notify covered retirees of this opportunity each year. 3. Years of service computed for the Retiree Subsidy Medical Plan are actual years of completed service with the City of Huntington Beach. B. Benefits: 1. The Retiree Subsidy Medical Plan includes any medical plan offered by the City to active and/or retired unrepresented/non-associated employees and retirees. 2. City Plans are the primary payer for active employees age 65 and over, with Medicare the secondary payer. Retirees age 65 and over have no City Plan options and are eligible only for Medicare. 3. Premium payments are to be received at least one month in advance of the coverage period. C. Subsidies: 1. The subsidy payments will pay for: a. The Retiree Subsidy Medical Plan. b. HMO. c. Part A of Medicare for those retirees not eligible for paid Part A. 2. Subsidy payments will not pay for: a. Part B Medicare. b. Any other employee benefit plan. c. Any other commercially available benefit plan. d. Medicare supplements D. Medicare: 1. All persons are eligible for Medicare coverage at age 65. Those with sufficient credit quarters of Social Security will receive Part A of Medicare at no cost. Those without sufficient credited quarters are still eligible for Medicare at age 65, but will have to pay for Part A of Medicare if the individual elects to take Medicare. In all cases, Part B of Medicare is paid for by the participant. Exhibit "A" to Non-Associated Resolution No. 2016-50 HB 675- Item 25. - 24 99 NON-ASSOCIATED EMPLOYEES PAY AND BENEFITS RESOLUTION 2. When a retiree and his/her spouse are both 65 or over, and neither is eligible for paid Part A of Medicare, the subsidy shall pay for Part A for each of them or the maximum subsidy, whichever is less. 3. When a retiree at age 65 is eligible for paid Part A of Medicare and his/her spouse is not eligible for paid Part A, the spouse shall not receive subsidy. When a retiree at age 65 is not eligible for paid Part A of Medicare and his/her spouse who is also age 65 is eligible for paid Part A of Medicare, the subsidy shall be for the retiree's Part A only. E. Cancellation: 1. For retirees/dependents eligible for paid Part A of Medicare, the following cancellation provisions apply: a. Coverage for a retiree under the Retiree Subsidy Medical Plan will be eliminated on the first day of the month in which the retiree reaches age 65. If such retiree was covering dependents under the Plan, dependents will be eligible for COBRA continuation benefits effective as of the retiree's 65th birthday. b. Dependent coverage will be eliminated upon whichever of the following occasions comes first: 1) After 36 months of COBRA continuation coverage, or 2) When the covered dependent reaches age 65 in the event such dependent reaches age 65 prior to the retiree reaching age 65. c. At age 65 retirees are eligible to make application for Medicare. Upon being considered "eligible to make application," whether or not application has been made for Medicare, the Retiree Subsidy Medical Plan will be eliminated. 2. See provisions under "Benefits," "Subsidies," and "Medicare" for those retirees/dependents not eligible for paid Part A of Medicare. 3. Retiree Subsidy Medical Plan and COBRA participants shall be notified of non- payment of premium by means of a certified letter from Employee Benefits in accordance with provisions of the Non-Associated Resolution. 4. A retiree who fails to pay premiums due for coverage and is in arrears for sixty (60) days shall be terminated from the Plan and shall not have reinstatement rights. Item 25. - 25; to Non-Associated Resolution No. 2016-50 HB -676 100 NON-ASSOCIATED EMPLOYEE PAY AND BENEFIT PROVISIONS EXHIBIT 3 - 9/80 WORK SCHEDULE This work schedule is known as "9/80". The 9/80 work schedule is designed to be in compliance with the requirements of the Fair Labor Standards Act (FLSA). In the event that there is a conflict with the current rules, practices and/or procedures regarding work schedules and leave plans, then the rules listed below shall govern. 9/80 WORK SCHEDULE DEFINED The 9/80 work schedule shall be defined as working nine (9) days for eighty (80) hours in a two week pay period by working eight (8) days at nine (9) hours per day and working one (1) day for eight (8) hours (Friday), with a one-hour lunch during each work shift, totaling forty (40) hours in each FLSA work week. The 9/80 work schedule shall not reduce service to the public, departmental effectiveness, productivity and/or efficiency as determined by the City Manager or designee. A Forty (40) Hour FLSA Work Week The actual FLSA workweek is from Friday at mid-shift (p.m.) to Friday at mid-shift (a.m.). No employee working the 9/80 work schedule will be able to flex their Friday start time nor the time they take their lunch break, which will be from 12:00 p.m. to 1:00 p.m. on Fridays. All employee work shifts will start at 8:00 a.m. on their Friday worked. The start of the FLSA workweek is 12:00 noon Friday. B. Two Week Pay Period The pay period for employees starts Friday mid-shift (p.m.) and continues for fourteen (14) days until Friday mid-shift (a.m.). During this period, each week is made up of four (4) nine (9) hour work days (thirty-six (36) hours) and one (1) four (4) hour Friday and those hours equal forty (40) work hours in each work week (e.g. the Friday is split into four (4) hours for the a.m. shift, which is charged to work week one and four (4) hours for the p.m. shift, which is charged to work week two). C. A/B Schedules To continue to provide service to the public every Friday, employees are to be divided between two schedules, known as the "A" schedule and the "B" schedule, based upon the departmental needs. For identification purposes, the "A" schedule shall be known as the schedule with a day off on the Friday in the middle of the pay period, or, "off on payday", the "B" schedule shall have the first Friday (p.m.) and the last Friday (a.m.) off, or "working on payday". An example is listed below: AM PM AM PM AM PM FFSSMTWThFFSSMTWThFF A Schedule 4 4 - - 9 9 9 9 - - - - 9 9 9 9 4 4 B Schedule - - - - 9 9 9 9 4 4 - - 9 9 9 9 - - Exhibit "A" to Non-Associated Resolution No. 2016-50 HB -677- Item 25. - 26 101 NON-ASSOCIATED EMPLOYEES PAY AND BENEFITS RESOLUTION D. A/B Schedule Changes FLSA exempt employees may change A/B schedules at the beginning of any pay period with supervisor or City Manager approval. E. Emergencies All employees on the 9/80 work schedule are subject to be called to work any time to meet any and all emergencies or unusual conditions which, in the opinion of the City Manager, or designee may require such service from any of said employees. LEAVE BENEFITS When an employee is off on a scheduled workday under the 9/80 work schedule, then nine (9) hours of eligible leave per workday shall be charged against the employee's leave balance or eight (8) hours shall be charged if the day off is a Friday. All leaves shall continue under the current accrual, eligibility, request and approval requirements. 1. General Leave — As stated in the Non-Associated Resolution. 2. Sick Leave — As stated in the Non-Associated Resolution. 3. Executive Leave — As stated in the Non-Associated Resolution. 4. Bereavement Leave — As stated in the Non-Associated Resolution. 5. Holidays - As stated in the Non-Associated Resolution. 6. Jury Duty — The provisions of the Personnel Rules shall continue to apply, however, if an FLSA exempt employee is called to serve on jury duty during a normal Friday off, Saturday, or Sunday, or on a City holiday, then the jury duty shall be considered the same as having occurred during the employees day off work, therefore, the employee will receive no added compensation. Item 25. - 27' to Non-Associated Resolution No. 2016-50 HB -678 102 NON-ASSOCIATED EMPLOYEES PAY AND BENEFITS RESOLUTION EXHIBIT 4- VOLUNTARY CATASTROPHIC LEAVE DONATION Guidelines 1. Purpose The purpose of the voluntary catastrophic leave donation program is to bridge employees who have been approved leave time to either return to work, long-term disability, or medical retirement. Permanent employees who accrue vacation, general leave or compensatory time may donate such leave to another permanent employee when a catastrophic illness or injury befalls that employee or because the employee is needed to care for a seriously ill family member. The leave-sharing Leave Donation Program is Citywide across all departments and is intended to provide an additional benefit. Nothing in this program is intended to change current policy and practice for use and/or accrual of vacation, general, or sick leave. 2. Definitions Catastrophic Illness or Injury - A serious debilitating illness or injury, which incapacitates the employee or an employee's family member. Family Member - For the purposes of this policy, the definition of family member is that defined in the Family Medical Leave Act (child, parent, spouse or domestic partner). 3. Eligible Leave Accrued compensatory, vacation or general leave hours may be donated. The minimum donation an employee may make is two (2) hours and the maximum is forty (40) hours. 4. Eligibility Permanent employees who accrue vacation or general leave may donate such hours to eligible recipients. Compensatory time accrued may also be donated. An eligible recipient is an employee who: • Accrues vacation or general leave; • Is not receiving disability benefits or Workers' Compensation payments; and • Requests donated leave. 5. Transfer of Leave The maximum donation credited to a recipient's leave account shall be the amount necessary to ensure continuation of the employee's regular salary during the employee's period of approved catastrophic leave. Donations will be voluntary, confidential and irrevocable. Hours donated will be converted into a dollar amount based on the hourly wage of the donor. The dollar amount will then be converted into accrued hours based on the recipient's hourly wage. An employee needing leave will complete a Leave Donation Request Form and submit it to the Department Director for approval. The Department Director will forward the form to Human Resources for processing. Human Resources, working with the department, will send out the request for leave donations. Exhibit "A" to Non-Associated Resolution No. 2016-50 HB 679- Item 25. -28 103 NON-ASSOCIATED EMPLOYEES PAY AND BENEFITS RESOLUTION Employees wanting to make donations will submit a Leave Donation Form to the Finance Department (payroll). All donation forms submitted to payroll will be date stamped and used in order received for each bi-weekly pay period. Multiple donations will be rotated in order to insure even use of time from donors. Any donation form submitted that is not needed will be returned to the donor. 6. Other Please contact the Human Resources Department with questions regarding employee participation in this program. Item 25.- 29" to Non-Associated Resolution No. 2016-50 HB -680 104 End donation date will bridge to: E Long Term Disability —1 Medical Retirement beginning ri Length of FMLA leave ending Return to work Human Resources Director Signature: D epartment Director Signature of Support: Human Resources Department Use Only NON-ASSOCIATED EMPLOYEES PAY AND BENEFITS RESOLUTION Voluntary Catastrophic Leave Donation Program Leave Request Form Requestor, Please Complete According to the provisions of the Voluntary Catastrophic Leave Donation Program, I hereby request donated vacation, general leave or compensatory time. MY SIGNATURE CERTIFIES THAT: • A Leave of absence in relation to a catastrophic illness or injury has been approved by my Department; and • I am not receiving disability benefits or Workers' Compensation payments. Name: (Please Print or Type: Last, First, MI) Work Phone: Department: Job Title: Employee ID#: Requester Signature: Date: Please submit this form to the Human Resources Office for processing. Exhibit "A" to Non-Associated Resolution No. 2016-50 HB 681 Item 25. - 30 105 Donor Name: (Please Print or Type: Last, First, MI) 'Work Phone :: Donor Job Title: Type of Accrued Leave: ,r7 Vacation Compensatory Time in General Leave Number of Hours I wish to Donate: Hours of Vacation Hours of Compensatory Time Hours of General Leave NON-ASSOCIATED EMPLOYEES PAY AND BENEFITS RESOLUTION Voluntary Catastrophic Leave Donation Program Leave Donation Form Donor, please complete I understand that this voluntary donation of leave credits, once processed, is irrevocable; but if not needed, the donation will be returned to me. I also understand that this donation will remain confidential. I wish to donate my accrued vacation, comp or general leave hours to the Leave Donation Program for: Eligible recipient employee's name (Last, First, MI): Donor Signature: IDate: Please submit to the Finance Department. Item 25. 31' to Non-Associated Resolution No. 2016-50 HB -682 106 Res. No. 2016-50 STATE OF CALIFORNIA COUNTY OF ORANGE ) ss: CITY OF HUNTINGTON BEACH ) I, ROBIN ESTANISLAU the duly appointed, qualified City Clerk of the City of Huntington Beach, and ex-officio Clerk of the City Council of said City, do hereby certify that the whole number of members of the City Council of the City of Huntington Beach is seven; that the foregoing resolution was passed and adopted by the affirmative vote of at least a majority of all the members of said City Council at a Regular meeting thereof held on July 18, 2016 by the following vote: AYES: NOES: OUT OF ROOM: ABSTAIN: O'Connell, Sullivan, Hardy, Delgleize Posey, Peterson Katapod is None 94.244,444) City Clerk and ex-officio Clerk of the City Council of the City of Huntington Beach, California 107 Pay Starting Control High Grade Point Point Point 0591 City Manager NA0591 NA NA 128.29 0029 *Interim City Manager NA0029 NA NA 122.68 0592 Assistant City Manager NA0592 85.82 95.51 106.32 0009 Director of Building & Safety NA0009 74.64 83.07 92.46 0014 Director of Community Services NA0014 74.64 83.07 92.46 0008 Director of Economic Development NA0008 74.64 83.07 92.46 0574 Director of Human Resources NA0574 74.64 83.07 92.46 0479 Chief Information Officer NA0479 74.64 83.07 92.46 0007 Director of Library Services NA0007 69.94 77.85 86.66 0589 Community Development Director NA0589 80.82 89.97 100.13 0010 Director of Public Works NA0010 80.82 89.97 100.13 0518 Chief Financial Officer NA0518 80.82 89.97 100.13 0015 Fire Chief NA0015 85.82 95.51 106.31 0011 Police Chief NA0011 85.82 95.52 106.31 0016 City Attorney NA0016 100.18 111.51 124.10 0017 City Clerk NA0017 69.94 77.85 86.66 0018 City Treasurer - PART-TIME NA0018 74.64 83.07 92.46 Pay Grade 0593 Chief Assistant City Attorney NA0593 71.05 74.96 79.08 83.43 88.01 0699 Deputy Community Prosecutor NA0699 43.20 45.58 48.08 50.73 53.52 0840 Deputy Director of Community Dev NA0840 66.54 70.21 74.07 78.14 82.44 0650 Assistant Chief of Police NA0650 78.70 83.03 87.60 92.41 97.50 Job No.Description A B C *Per Resolution 2019-21 adopted on 4/1/19 the compensation of Interim City Manager was established. CONTRACT NON-DEPARTMENT HEAD EXHIBIT 1 NON-ASSOCIATED EXECUTIVE MANAGEMENT SALARY SCHEDULE EFFECTIVE APRIL 01, 2019 Job No.Description EXECUTIVE MANAGEMENT DEPARTMENT HEADS ELECTED OFFICIALS ELECTED OFFICIALS PART-TIME *Annual Salary Not to Exceed $51,812 ED DRAFT Exhibit "1" - Resolution No. 2019-21 108 109 110 111 Exhibit "A" to Amendment to Employment Agreement112 113 114 115 116 117 118 119 120 121 122 123 City of Huntington Beach File #:19-392 MEETING DATE:4/1/2019 REQUEST FOR CITY COUNCIL ACTION SUBMITTED TO:Honorable Mayor and City Council Members SUBMITTED BY:Fred A. Wilson, City Manager PREPARED BY:Antonia Graham, Assistant to the City Manager Subject: Adopt Ordinance No. 4178 amending Huntington Beach Municipal Code Chapter 5.48 relating to Taxi Cabs Approved for introduction 3/18/2019 - Vote: 5-0-2 (Brenden, Delgleize absent) Statement of Issue: With the implementation of Assembly Bill 1069 (Low), the regulation of taxi cabs in the State of California has changed dramatically and required all cities which previously had adopted similar ordinances for inclusion in the Orange County Taxi Administration Program (OCTAP) to amend those ordinances based on the new law. This Council Action seeks to amend the City’s Municipal Code Chapter 5.48 relating to Taxi Cabs. The amendment retains the OCTAP partnership and adopts the OCTAP regulations as approved by the OCTAP Steering Committee. Financial Impact: None with this action. On December 17, 2018, City Council authorized the City Manager to execute Cooperative Agreement No. C-8-2015. This agreement specifies that the City’s funding share of OCTAP is 6.04% or $5,943.21 in FY 18/19, $14,306.84 in FY 19/20 and $10,634.91 in FY 20/21. Funding is included in the City Manager’s annual budget 10030101. The share is based on population and the costs are estimates and could be adjusted slightly each year. Recommended Action: Adopt Ordinance No. 4178, “An Ordinance of the City of Huntington Beach Amending Huntington Beach Municipal Code Chapter 5.48 Taxi Cabs.” Alternative Action(s): Do not adopt and direct staff accordingly. Analysis: The Orange County Transportation Authority (OCTA) has administered the Orange County Taxi Administration Program (OCTAP) on behalf of Orange County cities and the County of Orange since 1998. At that time, OCTAP was created to consolidate the licensing, application, and administrative City of Huntington Beach Printed on 3/27/2019Page 1 of 2 powered by Legistar™124 File #:19-392 MEETING DATE:4/1/2019 1998. At that time, OCTAP was created to consolidate the licensing, application, and administrative functions to assist the cities and the County of Orange (member agencies) in meeting their requirements set forth in Government Code Section 53075.5 and Vehicle Code 21100,et seq. In October 2017, then Governor Brown signed into law new taxi regulations (AB 1069 - Chapter 753, Statutes of 2017). This new law changed the way taxis were regulated and OCTAP could no longer operate as it once was. In October of 2018, the OCTA Board of Directors directed staff to establish a cooperative agreement with Orange County cities and the County of Orange for the administration of the Orange County Taxi Administration Program from January 1, 2019,through December 31, 2020. On December 17, 2018, the City Council approved Cooperative Agreement No. C-8-2015 with OCTA and the Cities within Orange County for the program. Since its inception, OCTAP was designed to be funded entirely through permit and license fees collected from taxi operators and drivers. With the arrival of transportation network companies (TNC), such as Uber and Lyft, the marketplace has greatly reduced revenues and,thereby, created a financially unsustainable condition for OCTAP as currently funded. Following discussion with the Orange County City Manager’s Association (OCCMA), it was determined that contributions from member agencies would be required for OCTA to continue to administer OCTAP. Due to the continued decline of taxicab permits, the permit fees alone are not enough to sustain the program and therefore external contributions from member agencies were agreed upon using a population- based cost sharing model. A new OCTAP structure was established, which included the formation of a Steering Committee, which the City’s Assistant to the City Manager sits on along with members from the Cities of Fullerton, Garden Grove,Newport Beach, Orange, and the County of Orange. At the February 5, 2019,meeting, the OCTAP Steering Committee approved new bylaws, adopted new (and reduced) taxi regulations, a fine schedule, metered rates, and considered OCTAP permit fees for OCTA Board consideration. The committee unanimously approved all items, including recommending the proposed permit fees to the OCTA Board. Environmental Status: Not Applicable Strategic Plan Goal: Enhance and maintain public safety Improve Quality of Life Attachment(s): 1. Ordinance No. 4178, “An Ordinance of the City of Huntington Beach Amending Huntington Beach Municipal Code Chapter 5.48 Taxi Cabs” 2. Legislative Draft. City of Huntington Beach Printed on 3/27/2019Page 2 of 2 powered by Legistar™125 126 127 128 129 130 131 132 133 134 135 136 137 City of Huntington Beach File #:19-394 MEETING DATE:4/1/2019 REQUEST FOR CITY COUNCIL ACTION SUBMITTED TO:Honorable Mayor and City Council Members SUBMITTED BY:Fred A. Wilson, City Manager PREPARED BY:Kellee Fritzal, Deputy Director of Economic Development Subject: Approve and authorize execution of a Three-Year Lease Agreement for 5770 Research Drive and adopt Resolution No. 2019-22 pursuant to SB 850 (Chapter 48, Statutes of 2018 and Government Code Section 8698.2) for the Development and Operation of a 50-Bed Navigation Center Statement of Issue: Homelessness in Huntington Beach has created numerous issues regarding the health, safety and welfare of the City. Numerous lawsuits have been filed against the County of Orange and other cities for the lack of emergency shelters that can house individuals and families that are homeless, including: Anaheim, Orange, Costa Mesa, Irvine, Aliso Viejo, Dana Point, San Juan Capistrano, and San Clemente. A majority of the lawsuits were consolidated and assigned to the United States District Court in Santa Ana. In order to provide emergency beds to Huntington Beach’s homeless population and protect the City’s right to enforce its laws, City Council action is requested to enter into a three-year Lease Agreement for the development of a 50-bed secular Navigation Center to shelter the homeless, and allow the City to enforce its anti-camping ordinances pursuant to Federal and State law. Financial Impact: The proposed action would authorize a three-year Commercial Lease Agreement, with two one-year options, in an annual amount of $104,000. The combined three year lease would be approximately $330,720. Staff is requesting an appropriation to increase in the FY 2018/19 Revised Budget in the Residual Receipts Fund, Office of Business Development, (23380101). Sufficient funds are available in the Residual Receipts Fund balance to accommodate this increase to the budget. Additional costs associated with operations of the facility will be brought to the City Council at a future meeting. Recommended Action: A) Authorize the Mayor and City Clerk to enter into the Three-Year Commercial Lease Agreement for 5770 Research Drive, Huntington Beach, CA; and, B) Authorize the City Manager to execute all documents related to the Lease to further the action; and, City of Huntington Beach Printed on 3/27/2019Page 1 of 4 powered by Legistar™138 File #:19-394 MEETING DATE:4/1/2019 C) Adopt Resolution 2019-22, “A Resolution of the City Council of the City of Huntington Beach Pursuant to SB 850 (Chapter 48, Statutes of 2018 and Government Code Section 8698.2);” and, D) Increase appropriations in the FY 2018/19 Revised Budget for the Office of Business Development by $104,000 for the annual lease costs of the Navigation Center. Alternative Action(s): Do not approve the lease or declaration of shelter crisis and direct staff as necessary. Analysis: City Staff has been in discussions with the owner of a building located at 5770 Research Drive, located in the northwest area of the City south of McFadden Avenue, west of Springdale Street regarding operation of a homeless shelter. The building site is an approximately half-acre property within the Industrial (IL) zoning district, which is the City’s designated “SB 2 Zone.” SB 2 or Senate Bill 2 was enacted in 2008 and required cities and counties to identify a land use zone where emergency shelters are permitted with no conditional use permit or discretionary action. As such, in 2009, the City Council adopted amendments to the City’s zoning ordinance to allow by right emergency or transitional and supportive housing in Industrial Zones including the development of emergency shelters. The proposed location will be leased by the City for the establishment of a 50- bed Navigation Center to house homeless. The creation of the Navigation Center will provide immediately available secular beds for individuals that are homeless while also providing for the increased enforcement of the City’s Municipal Codes against camping in public places. Homelessness in Orange County In January 2017, a Point-in-Time Count and Survey of the homeless was conducted in which 119 persons were identified as unsheltered in the City of Huntington Beach. Of those, 73 were male and 46 were female. Since the last Point-in-Time Count, the number of unsheltered individuals in the County and in the City of Huntington Beach have likely increased. The County of Orange will soon be releasing the new Point-in-Time Count figures for each City and it is likely the City’s figure for homeless individuals will increase from the 2017 numbers. Compounding the health, safety and welfare issues created by homelessness are the legal challenges to enforcing ordinances prohibiting sleeping in outdoor areas, such as parks and public plazas. The Ninth Circuit Court of Appeals in Martin et al v City of Boise held that enforcing a City ordinance that prohibits sleeping in public places violates an individual’s Constitutional prohibition on cruel and unusual punishment if there are no housing alternatives available (other than sleeping in the public) within that same jurisdiction. In other words, the Courts have determined that cities cannot criminally punish individuals for sleeping outdoors if they have no alternative shelter. As a result, unless sleeping facilities are available in the City at the time of encounter, enforcement of the City’s anti-camping or other ordinances constraining sleeping on public property would likely result in dismissal of any charges. Last year, Federal lawsuits were filed when the County of Orange and City of Anaheim relocated several hundred homeless individuals from the flood control channel in Anaheim. A majority of those lawsuits were consolidated and assigned to Federal District Court Judge David Carter in Santa Ana. The City of Huntington Beach has not been sued as part of those lawsuits, at this time. However, the Federal District Court has requested that all Orange County cities appear at court on Tuesday, AprilCity of Huntington Beach Printed on 3/27/2019Page 2 of 4 powered by Legistar™139 File #:19-394 MEETING DATE:4/1/2019 Federal District Court has requested that all Orange County cities appear at court on Tuesday, April 2, 2019 (see Attachment) to report how it plans to comply with the basic tenets of Martin vs. Boise. As a result of the litigation, nearby cities including Santa Ana, Tustin, Orange, Costa Mesa, Placentia, Buena Park, and Anaheim are building new and expanded shelters for homeless individuals and families. Importantly, the Court has indicated that by creating these facilities to house the homeless, cities can enforce their prohibitions on camping in public areas. In addition, cities that are committed to creating homeless facilities will have the opportunity to enter into approved Federal Settlement Agreements allowing them to enforce ordinances against sleeping and camping in public places. Pursuant to these settlement agreements, the cities of Santa Ana and Anaheim have begun enforcement of their camping and related ordinances. There is an urgent health, safety,and welfare need to establish an emergency homeless facility with beds available for homeless families and individuals within Huntington Beach. Taking action as soon as possible will ensure there are adequate secular sleeping alternatives available (to those willing to accept them) and will help the City of Huntington Beach ensure that public areas like parks, beaches, the Civic Center, libraries, Pier Plaza and City sidewalks remain safe, attractive and well-maintained for the public at large. If the migration of homeless populations from one or more cities to Huntington Beach continues while the City has not yet established immediately available beds for placement, the City will lack the ability to enforce its anti-camping ordinance, and the City’s unsheltered population is likely to grow as a result. Next Steps City Staff has visited eight (8) shelters operated by various non-profits. The Staff has also met with the County of Orange, Anaheim, and Santa Ana regarding best practices and lessons learned. If this lease is approved, the City will be sending out a Request for Proposals for the tenant improvements at the site, and for a highly qualified Shelter Operator with 24/7 on-site security to ensure a safe and effective Shelter. It is recommended that the City enter into a three (3) year commercial lease with two one-year options for 5770 Research Drive. The building is located in the SB 2 Zone for the establishment of a Navigation Center. To provide for shelter to the homeless as well as avoid litigation regarding homelessness in Orange County, the creation of the Navigation Center will provide for the enhanced enforcement of City Municipal Codes and safer public spaces for homeless and residents. Next steps include the City entering into contracts for Tenant Improvements at the site, on-site Security Services and a Shelter Operator. Any required increases in funding will be requested at that time. Environmental Status: Not applicable Strategic Plan Goal: Enhance and modernize public safety service delivery Enhance and maintain high quality City services City of Huntington Beach Printed on 3/27/2019Page 3 of 4 powered by Legistar™140 File #:19-394 MEETING DATE:4/1/2019 Attachment(s): 1. Lease Agreement with Michael Garcia and Stacy Garcia Property Owners for 5770 Research Drive 2. Resolution 2019-22, “A Resolution of the city Council of the City of Huntington Beach declaring a shelter crisis pursuant to SB 850 (Chapter 48, Statutes of 2018 and Government Code Section 8698.2) 3. Notice of Status Conference April 2, 2019 with Honorable Judge David Carter 4. Ninth Circuit Court of Appeals Decision in Martin et al v City of Boise (9 th Cir. 9/4/18) _ F.4th _, Case No. 15-35845 City of Huntington Beach Printed on 3/27/2019Page 4 of 4 powered by Legistar™141 142 143 144 145 146 147 148 149 150 151 152 153 154 155 156 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES – GENERAL Case No. SA CV 18-00155-DOC (JDEx) Case No. SA CV 18-00220-DOC (KESx) Case No. SA CV 19-00388-DOC (KESx) Date: March 5, 2019 Title: ORANGE COUNTY CATHOLIC WORKER ET AL. V. ORANGE COUNTY ET AL. DAVID RAMIREZ ET AL V. THE COUNTY OF ORANGE HOUSING IS A HUMAN RIGHT ORANGE COUNTY ET AL V. THE COUNTY OF ORANGE ET AL PRESENT: THE HONORABLE DAVID O. CARTER, JUDGE Deborah Lewman Not Present Courtroom Clerk Court Reporter ATTORNEYS PRESENT FOR PLAINTIFF: None Present ATTORNEYS PRESENT FOR DEFENDANT: None Present PROCEEDINGS (IN CHAMBERS): ORDER SETTING STATUS CONFERENCE FOR APRIL 2, 2019 The Court SETS a Status Conference on April 2, 2019, at 8:30 a.m. regarding the above-captioned cases. The Court ORDERS the parties in Housing is a Human Right Orange County et al v. The County of Orange et al, No. SA-CV-19-00388-DOC-KESx, to appear, and respectfully REQUESTS the Mayor, City Manager, and Police Chief of the Defendant city of Irvine, and the Mayor, City Manager, and Sheriff of the respective Defendant cities of Aliso Viejo, Dana Point, San Juan Capistrano, and San Clemente to appear. The Court also ORDERS the parties in Orange County Catholic Worker et al v. Orange County et al, No. SA-CV-18-00155-DOC-JDEx to appear, regarding an update on the status of the settlements and enforcement actions, and respectfully REQUESTS Case 8:18-cv-00155-DOC-JDE Document 294 Filed 03/05/19 Page 1 of 5 Page ID #:3126 157 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES – GENERAL Case No. SA CV 18-0155-DOC (JDEx) Case No. SA CV 18-01220-DOC (KESx) Case No. SA CV 19-00388-DOC (KESx) Date: March 5, 2019 Page 2 the Mayor, City Manager, and Police Chief of the settling cities of Anaheim, Costa Mesa, Tustin, Orange, and the North SPA cities of Fullerton, Placentia, Buena Park, Brea, Cypress, La Habra, La Palma, Los Alamitos, Stanton, Villa Park, and Yorba Linda. The Court respectfully REQUESTS the appearance of the following individuals: CalOptima Chief Executive Officer Michael Schrader and each member of the CalOptima Board of Directors: Paul Yost, Nikan Khatibi, Ria Berger, Ron DiLuigi, Andrew Do, Alexander Nguyen, Lee Penrose, Richard Sanchez, J. Scott Schoeffel, Michelle Steel, and Doug Chaffee. The Court also respectfully REQUESTS the appearance of Chairwoman Lisa Bartlett of the Orange County Board of Supervisors, Orange County Sheriff Donald Barnes, and Orange County Health Care Agency Public Health Officer Dr. Eric Handler. Because these issues implicate all thirty-four cities in Orange County, the City Manager, the Mayor, and the Police Chief of each city in Orange County is invited to attend the hearing, and is respectfully requested to provide an update about any emergency and transitional shelter sites within each City and Health Care Service Planning Area. The Clerk shall serve this minute order on the parties. cc: Aliso Viejo City Manager David Doyle city-manager@cityofalisoviejo.com Anaheim City Manager Chris Zapata CityManager@anaheim.net Brea City Manager Bill Gallardo billga@ci.brea.ca.us Buena Park City Manager James Vanderpool jvanderpool@buenapark.com Costa Mesa Assistant City Manager Tammy Letourneau tamara.letourneau@costamesaca.gov Case 8:18-cv-00155-DOC-JDE Document 294 Filed 03/05/19 Page 2 of 5 Page ID #:3127 158 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES – GENERAL Case No. SA CV 18-0155-DOC (JDEx) Case No. SA CV 18-01220-DOC (KESx) Case No. SA CV 19-00388-DOC (KESx) Date: March 5, 2019 Page 3 Cypress City Manager Peter Grant adm@cypressca.org Dana Point City Manager Mark Denny jlittler@danapoint.org Fountain Valley City Manager Rob Houston maggie.le@fountainvalley.org Fullerton City Manager Ken Domer citymanager@cityoffullerton.com Garden Grove City Manager Scott Stiles sstiles@ci.garden-grove.ca.us Huntington Beach City Manager Fred Wilson Johanna.Dombo@surfcity-hb.org Irvine City Manager John Russo cm@cityofirvine.org La Habra City Manager Jim Sadro rferrier@lahabraca.gov La Palma City Manager Laurie Murray administration@cityoflapalma.org Laguna Beach City Manager John Pietig lhall@lagunabeachcity.net Laguna Hills City Manager Donald White csands@lagunahillsCA.gov Laguna Niguel City Manager Kristine Ridge KRidge@cityoflagunaniguel.org Case 8:18-cv-00155-DOC-JDE Document 294 Filed 03/05/19 Page 3 of 5 Page ID #:3128 159 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES – GENERAL Case No. SA CV 18-0155-DOC (JDEx) Case No. SA CV 18-01220-DOC (KESx) Case No. SA CV 19-00388-DOC (KESx) Date: March 5, 2019 Page 4 Laguna Woods City Manager Christopher Macon cityhall@cityoflagunawoods.org Lake Forest City Manager Debra Rose llacasella@lakeforestca.gov Los Alamitos City Manager Bret Plumlee cwilson@cityoflosalamitos.org Mission Viejo City Manager Dennis Wilberg citymanager@cityofmissionviejo.org Newport Beach City Manager Grace Leung glueung@newportbeachca.gov Orange City Manager Rick Otto cminfo@cityoforange.org Placentia City Administrator Damien Arrula darrula@placentia.org Rancho Santa Margarita City Manager Jennifer Cervantez jcervantez@cityofrsm.org San Clemente City Manager James Makshanoff CityManager@San-Clemente.org San Juan Capistrano City Manager Ben Siegel bsiegel@sanjuancapistrano.org Santa Ana City Manager Raul Godinez II pio@santa-ana.org Seal Beach City Manager Jill Ingram jingram@sealbeachca.gov Stanton City Manager Robert W. Hall rhall@ci.stanton.ca.us Case 8:18-cv-00155-DOC-JDE Document 294 Filed 03/05/19 Page 4 of 5 Page ID #:3129 160 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES – GENERAL Case No. SA CV 18-0155-DOC (JDEx) Case No. SA CV 18-01220-DOC (KESx) Case No. SA CV 19-00388-DOC (KESx) Date: March 5, 2019 Page 5 Tustin City Manager Matthew S. West citymanager@tustinca.org Villa Park City Manager Steve Franks sfranks@villapark.org Westminster City Manager Eddie Manfro emanfro@westminster-ca.gov Yorba Linda City Manager Mark Pulone slamp@yorba-linda.org MINUTES FORM 11 CIVIL-GEN Initials of Deputy Clerk: djl Case 8:18-cv-00155-DOC-JDE Document 294 Filed 03/05/19 Page 5 of 5 Page ID #:3130 161 ROBERT MARTIN; LAWRENCE LEE SMITH; ROBERT ANDERSON; JANET F.BELL; PAMELA S. HAWKES; and BASIL E. HUMPHREY, Plaintiffs-Appellants, v. CITY OF BOISE, Defendant-Appellee. No. 15-35845 D.C. No. 1:09-cv-00540- REB OPINION Appeal from the United States District Court for the District of Idaho Ronald E. Bush, Chief Magistrate Judge, Presiding Argued and Submitted July 13, 2017 Portland, Oregon Filed September 4, 2018 Before: Marsha S. Berzon, Paul J. Watford, and John B. Owens, Circuit Judges. Opinion by Judge Berzon; Partial Concurrence and Partial Dissent by Judge Owens FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Attachment C 560 162 MARTIN V. CITY OFBOISE2 SUMMARY* Civil Rights The panel affirmed in part and reversed in part the district court’s summary judgment in an action brought bysix current or formerly homeless City of Boise residents who alleged that their citations under the City’s Camping and Disorderly Conduct Ordinances violated the Eighth Amendment’s prohibition on cruel and unusual punishment. Plaintiffs sought damages for the alleged violations under 42 U.S.C. § 1983. Two plaintiffs also sought prospective declaratory and injunctive relief precluding future enforcement of the ordinances. In 2014, after this litigation began, the ordinances were amended to prohibit their enforcement against any homeless person on public property on any night when no shelter had an available overnight space. The panel first held that two plaintiffs had standing to pursue prospective relief because they demonstrated a genuine issue of material fact as to whether they faced a credible risk of prosecution on a night when they had been denied access to the City’s shelters. The panel noted that although the 2014 amendment precluded the City from enforcing the ordinances when shelters were full, individuals could still be turned away for reasons other than shelter capacity, such as for exceeding the shelter’s stay limits, or for This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. 561 163 MARTIN V. CITY OF BOISE 3 failing to take part in a shelter’s mandatory religious programs. The panel held that although the doctrine set forth in Heck v. Humphrey, 512 U.S. 477 (1994) and its progeny precluded most — but not all — of the plaintiffs’ requests for retrospective relief, the doctrine had no application to plaintiffs’ request for an injunction enjoining prospective enforcement of the ordinances. Turning to the merits, the panel held that the Cruel and Unusual Punishments Clause of the Eighth Amendment precluded the enforcement of a statute prohibiting sleeping outside against homeless individuals with no access to alternative shelter. The panel held that, as long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter. Concurring in part and dissenting in part, Judge Owens disagreed with the majority’s opinion that Heck v. Humphrey did not bar plaintiffs’ claim for declaratory and injunctive relief. Judge Owens stated that a declaration that the city ordinances are unconstitutional and an injunction against their future enforcement would necessarily demonstrate the invalidity of plaintiffs’ prior convictions. Judge Owens otherwise joined the majority in full. 562 164 MARTIN V. CITY OFBOISE4 COUNSEL Michael E. Bern (argued) and Kimberly Leefatt, Latham & Watkins LLP, Washington, D.C.; Howard A. Belodoff, Idaho Legal Aid Services Inc., Boise, Idaho; Eric Tars, National Law Center on Homelessness & Poverty, Washington, D.C.; Plaintiffs-Appellants. Brady J. Hall (argued), Michael W. Moore, and Steven R. Kraft, Moore Elia Kraft & Hall LLP, Boise, Idaho; Scott B. Muir, Deputy City Attorney; Robert B. Luce, City Attorney; City Attorney’s Office, Boise, Idaho; for Defendant- Appellee. OPINION BERZON, Circuit Judge: The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.” Anatole France, The Red Lily We consider whether the Eighth Amendment’s prohibition on cruel and unusual punishment bars a city from prosecuting people criminally for sleeping outside on public property when those people have no home or other shelter to go to. We conclude that it does. The plaintiffs-appellants are six current or former residents of the City of Boise (“the City”), who are homeless or have recently been homeless. Each plaintiff alleges that, 563 165 MARTIN V. CITY OF BOISE 5 between 2007 and 2009, he or she was cited by Boise police for violating one or both of two city ordinances. The first, Boise City Code § 9-10-02 (the “Camping Ordinance”), makes it a misdemeanor to use “any of the streets, sidewalks, parks, or public places as a camping place at any time.” The Camping Ordinance defines “camping” as “the use of public property as a temporary or permanent place of dwelling, lodging, or residence.” Id. The second, Boise City Code § 6- 01-05 (the “Disorderly Conduct Ordinance”), bans o]ccupying, lodging, or sleeping in any building, structure, or public place, whether public or private . . . without the permission of the owner or person entitled to possession or in control thereof.” All plaintiffs seek retrospective relief for their previous citations under the ordinances. Two of the plaintiffs, Robert Anderson and Robert Martin, allege that they expect to be cited under the ordinances again in the future and seek declaratory and injunctive relief against future prosecution. In Jones v. City of Los Angeles, 444 F.3d 1118, 1138 (9th Cir. 2006), vacated, 505 F.3d 1006 (9th Cir. 2007), a panel of this court concludedthat “so long as there is a greater number of homeless individuals in Los Angeles than the number of available beds [in shelters]” for the homeless, Los Angeles could not enforce a similar ordinance against homeless individuals “for involuntarily sitting, lying, and sleeping in public.” Jones is not binding on us, as there was an underlying settlement between the parties and our opinion was vacated as a result. We agree with Jones’s reasoning and central conclusion, however, and so hold that an ordinance violates the Eighth Amendment insofar as it imposes criminal sanctions against homeless individuals for sleeping outdoors, on public property, whenno alternative shelter is available to 564 166 MARTIN V. CITY OFBOISE6 them. Two of the plaintiffs, we further hold, may be entitled to retrospective and prospective relief for violation of that Eighth Amendment right. I. Background The district court granted summary judgment to the City on all claims. We therefore review the record in the light most favorable to the plaintiffs. Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014). Boise has a significant and increasing homeless population. According to the Point-in-Time Count (“PIT Count”) conducted by the Idaho Housing and Finance Association, there were 753 homeless individuals in Ada County — the county of which Boise is the seat — in January 2014, 46 of whom were “unsheltered,” or living in places unsuited to human habitation such as parks or sidewalks. In 2016, the last year for which data is available, there were 867 homeless individuals counted in Ada County, 125 of whom were unsheltered.1 The PIT Count likely underestimates the number of homeless individuals in Ada 1 The United States Department of Housing and Urban Development HUD”) requires local homeless assistance and prevention networks to conduct an annual count of homeless individuals on one night each January, known as the PIT Count, as a condition of receiving federal funds. State, local, and federal governmental entities, as well as private service providers, rely on the PIT Count as a “critical source of data” on homelessness in the United States. The parties acknowledge that the PIT Count is not always precise. The City’s Director of Community Partnerships, Diana Lachiondo, testified that the PIT Count is “not always the . . . best resource for numbers,” but also stated that “the point-in-time count is our best snapshot” for counting the number of homeless individuals in a particular region, and that she “cannot give . . . any other number with any kind of confidence.” 565 167 MARTIN V. CITY OF BOISE 7 County. It is “widely recognized that a one-night point in time count will undercount the homeless population,” as many homeless individuals may have access to temporary housing on a given night, and as weather conditions may affect the number of available volunteers and the number of homeless people staying at shelters or accessing services on the night of the count. There are currently three homeless shelters in the City of Boise offering emergency shelter services, all run by private, nonprofit organizations. As far as the record reveals, these three shelters are the only shelters in Ada County. One shelter — “Sanctuary” — is operated by Interfaith Sanctuary Housing Services, Inc. The shelter is open to men, women, and children of all faiths, and does not impose any religious requirements on its residents. Sanctuary has 96 beds reserved for individual men and women, with several additional beds reserved for families. The shelter uses floor mats when it reaches capacity with beds. Because of its limited capacity, Sanctuary frequently has to turn away homeless people seeking shelter. In 2010, Sanctuary reached full capacity in the men’s area “at least half of everymonth,” and the women’s area reached capacity almost every night of the week.” In 2014, the shelter reported that it was full for men, women, or both on 38% of nights. Sanctuary provides beds first to people who spent the previous night at Sanctuary. At 9:00 pm each night, it allots any remaining beds to those who added their names to the shelter’s waiting list. The other two shelters in Boise are both operated by the Boise Rescue Mission (“BRM”), a Christian nonprofit 566 168 MARTIN V. CITY OFBOISE8 organization. One of those shelters, the River of Life Rescue Mission (“ River of Life”), is open exclusively to men; the other, the City Light Home for Women and Children (“City Light”), shelters women and children only. BRM’s facilities provide two primary “programs” for the homeless, theEmergency Services Program and the New Life Discipleship Program.2 The Emergency Services Program provides temporary shelter, food, and clothing to anyone in need. Christianreligious services are offered to those seeking shelter through the Emergency Services Program. The shelters display messages and iconography on the walls, and the intake form for emergency shelter guests includes a religious message.3 Homeless individuals may check in to either BRM facility between 4:00 and 5:30 pm. Those who arrive at BRM facilities between 5:30 and 8:00 pm may be denied shelter, depending on the reason for their late arrival; generally, anyone arriving after 8:00 pm is denied shelter. Except in winter, male guests in the Emergency Services Program may stay at River of Life for up to 17 consecutive nights; women and children in the Emergency Services Program may stay at City Light for up to 30 consecutive 2 The record suggests that BRM provides some limited additional non-emergency shelter programming which, like the Discipleship Program, has overtly religious components. 3 Theintake form states in relevant part that “We are a Gospel Rescue Mission. Gospel means ‘Good News,’ and the Good News is that Jesus saves us from sin past, present, and future. We would like to share the Good News with you. Have you heard of Jesus? . . . Would you like to know more about him?” 567 169 MARTIN V. CITY OF BOISE 9 nights. After the time limit is reached, homeless individuals who do not join the Discipleship Program may not return to a BRM shelter for at least 30 days.4 Participants in the Emergency Services Programmust return to the shelter every night during the applicable 17-day or 30-day period; if a resident fails to check in to a BRM shelter each night, that resident is prohibited from staying overnight at that shelter for 30 days. BRM’s rules on the length of a person’s stay in the Emergency Services Program are suspended during the winter. The Discipleship Program is an “intensive, Christ-based residential recovery program” of which “[r]eligious study is the very essence.” The record does not indicate any limit to how long a member of the Discipleship Program may stay at a BRM shelter. The River of Life shelter contains 148 beds for emergency use, along with 40 floor mats for overflow; 78 additional beds serve those in non-emergency shelter programs such as the Discipleship Program. The City Light shelter has 110 beds for emergency services, as well as 40 floor mats to handle overflow and 38 beds for women in non-emergency shelter programs. All told, Boise’s three homeless shelters contain 354 beds and 92 overflow mats for homeless individuals. A.The Plaintiffs Plaintiffs Robert Martin, Robert Anderson, Lawrence Lee Smith, Basil E. Humphrey, Pamela S. Hawkes, and Janet F. 4 The parties dispute the extent to which BRM actually enforces the 17- and 30-day limits. 568 170 MARTIN V. CITY OFBOISE10 Bell are all homeless individuals who have lived in or around Boise since at least 2007. Between 2007 and 2009, each plaintiff was convicted at least once of violating the Camping Ordinance, the Disorderly Conduct Ordinance, or both. With one exception, all plaintiffs were sentenced to time served for all convictions; on two occasions, Hawkes was sentenced to one additional day in jail. During the same period, Hawkes was cited, but not convicted, under the Camping Ordinance, and Martin was cited, but not convicted, under the Disorderly Conduct Ordinance. Plaintiff Robert Anderson currently lives in Boise; he is homeless and has often relied on Boise’s shelters for housing. In the summer of 2007, Anderson stayed at River of Life as part of the Emergency Services Program until he reached the shelter’s 17-day limit for male guests. Anderson testified that during his 2007 stay at River of Life, he was required to attend chapel services before he was permitted to eat dinner. At the conclusion of his 17-day stay, Anderson declined to enter the Discipleship Program because of his religious beliefs. As Anderson was barred by the shelter’s policies from returning to River of Life for 30 days, he slept outside for the next severalweeks. On September 1, 2007, Anderson was cited under the Camping Ordinance. He pled guilty to violating the Camping Ordinance and paid a $25 fine; he did not appeal his conviction. Plaintiff Robert Martin is a former resident of Boise who currently lives in Post Falls, Idaho. Martin returns frequently to Boise to visit his minor son. In March of 2009, Martin was cited under the Camping Ordinance for sleeping outside; he was cited again in 2012 under the same ordinance. 569 171 MARTIN V. CITY OF BOISE 11 B.Procedural History The plaintiffs filed this action in the United States District Court for the District of Idaho in October of 2009. All plaintiffs alleged that their previous citations under the Camping Ordinance and the Disorderly Conduct Ordinance violated the Cruel and Unusual Punishments Clause of the Eighth Amendment, and sought damages for those alleged violations under 42 U.S.C. § 1983. Cf. Jones, 444 F.3d at 1138. Anderson and Martin also sought prospective declaratory and injunctive relief precluding future enforcement of the ordinances under the same statute and the Declaratory Judgment Act, 28 U.S.C. §§ 2201–2202. After this litigation began, the Boise Police Department promulgated a new “Special Order,” effective as of January 1, 2010, that prohibited enforcement of either the Camping Ordinance or the Disorderly Conduct Ordinance against any homeless person on public property on any night when no shelter had “an available overnight space.” City police implemented the Special Order through a two-step procedure known as the “Shelter Protocol.” Under theShelter Protocol, if any shelter in Boise reaches capacityon a given night, that shelter will so notify the police at roughly 11:00pm. Each shelter has discretion to determine whether it is full, and Boise police have no other mechanism or criteria for gauging whether a shelter is full. Since the Shelter Protocol was adopted, Sanctuary has reported that it was full on almost 40% of nights. Although BRM agreed to the Shelter Protocol, its internal policy is never to turn any person away because of a lack of space, and neither BRM shelter has ever reported that it was full. 570 172 MARTIN V. CITY OFBOISE12 If all shelters are full on the same night, police are to refrain from enforcing either ordinance. Presumably because the BRM shelters have not reported full, Boise police continue to issue citations regularly under both ordinances. In July 2011, the district court granted summary judgment to the City. It held that the plaintiffs’ claims for retrospective relief were barred under the Rooker-Feldman doctrine and that their claims for prospective relief were mooted by the Special Order and the Shelter Protocol. Bell v. City of Boise, 834 F. Supp. 2d 1103 (D. Idaho 2011). On appeal, we reversed and remanded. Bell v. City of Boise, 709 F.3d 890, 901 (9th Cir. 2013). We held that the district court erred in dismissing the plaintiffs’ claims under the Rooker-Feldman doctrine. Id. at 897. In so holding, we expressly declined to consider whether the favorable-termination requirement from Heck v. Humphrey, 512 U.S. 477 ( 1994), applied to the plaintiffs’ claims for retrospective relief. Instead, we left the issue for the district court on remand. Bell, 709 F.3d at 897 n.11. Bell further held that the plaintiffs’ claims for prospective relief were not moot. The City had not met its “heavy burden” of demonstrating that the challenged conduct — enforcement of the two ordinances against homeless individuals with no access to shelter — “could not reasonably be expected to recur.” Id. at 898, 901 (quotingFriends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000)). We emphasized that the Special Order was a statement of administrative policy and so could be amended or reversed at any time by the Boise Chief of Police. Id. at 899–900. 571 173 MARTIN V. CITY OF BOISE 13 Finally, Bell rejected the City’s argument that the plaintiffs lacked standing to seek prospective relief because they were no longer homeless. Id. at 901 & n.12. We noted that, on summaryjudgment, the plaintiffs “need not establish that they in fact have standing, but only that there is a genuine issue of material fact as to the standing elements.” Id. citation omitted). On remand, the district court again granted summary judgment to the City on the plaintiffs’ § 1983 claims. The court observed that Heck requires a § 1983 plaintiff seeking damages for “harm caused by actions whose unlawfulness would render a conviction or sentence invalid” to demonstrate that “the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal . . . or called into question by a federal court’s issuance of a writ of habeas corpus.” 512 U.S. at 486–87. According to the district court, “a judgment finding the Ordinances unconstitutional . . . necessarily would imply the invalidity of Plaintiffs’ [previous] convictions under those ordinances,” and the plaintiffs therefore were required to demonstrate that their convictions or sentences had already been invalidated. As none of the plaintiffs had raised an Eighth Amendment challenge as a defense to criminal prosecution, nor had any plaintiff successfully appealed their conviction, the district court held that all of the plaintiffs’ claims for retrospective relief were barred by Heck. The district court also rejected as barred by Heck the plaintiffs’ claim for prospective injunctive relief under § 1983, reasoning that “a ruling in favor of Plaintiffs on even a prospective § 1983 claim would demonstrate the invalidityof any confinement stemming from those convictions.” 572 174 MARTIN V. CITY OFBOISE14 Finally, the district court determined that, although Heck did not bar relief under the Declaratory Judgment Act, Martin and Anderson now lack standing to pursue such relief. The linchpin of this holding was that the Camping Ordinance and the Disorderly Conduct Ordinance were both amended in 2014 to codify the Special Order’s mandate that “[l]aw enforcement officers shall not enforce [the ordinances] when the individual is on public property and there is no available overnight shelter.” Boise City Code §§ 6-01-05, 9-10-02. Because the ordinances, as amended, permitted camping or sleeping in a public place when no shelter space was available, the courtheld that therewas no “credible threat” of future prosecution. “If the Ordinances are not to be enforced when the shelters are full, those Ordinances do not inflict a constitutional injury upon these particular plaintiffs . . . .” The court emphasized that the record “suggests there is no knowncitation of a homeless individual under the Ordinances for camping or sleeping on public property on any night or morning when he or she was unable to secure shelter due to a lack of shelter capacity” and that “there has not been a single night when all three shelters in Boise called in to report they were simultaneously full for men, women or families.” This appeal followed. 573 175 MARTIN V. CITY OF BOISE 15 II. Discussion A.Standing We first consider whether any of the plaintiffs has standing to pursue prospective relief.5 We conclude that there are sufficient opposing facts in the record to create a genuine issue of material fact as to whether Martin and Anderson face a credible threat of prosecution under one or both ordinances in the future at a time when they are unable to stay at any Boise homeless shelter.6 To establish Article III standing, an injury must be concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.” Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1147 (2013) (citation omitted). “Although imminence is concededly a somewhat elastic concept, it cannot be stretched beyond its purpose, which is to ensure that the alleged injury is not too speculative for Article III purposes that the injury is certainly impending.” Id. (citation omitted). A plaintiff need not, however, await an arrest or prosecution to have standing to challengethe constitutionality of a criminal statute. “When the plaintiff has alleged an 5 Standing to pursue retrospective relief is not in doubt. The only threshold question affecting the availability of a claim for retrospective relief — a question we address in the next section — is whether such relief is barred by the doctrine established in Heck. 6 Although the SAC is somewhat ambiguous regarding which of the plaintiffs seeks prospective relief, counsel for the plaintiffs made clear at oral argument that only two of the plaintiffs, Martin and Anderson, seek such relief, and the district court considered the standing question with respect to Martin and Anderson only. 574 176 MARTIN V. CITY OFBOISE16 intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder, he should not be required to await and undergo a criminal prosecution as the sole means of seeking relief.” Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979) citation and internal quotation marks omitted). To defeat a motion for summaryjudgment premised on an alleged lack of standing, plaintiffs “ need not establish that they in fact have standing, but only that there is a genuine question of material fact as to the standing elements.” Cent. Delta Water Agency v. United States, 306 F.3d 938, 947 (9th Cir. 2002). In dismissing Martin and Anderson’s claims for declaratory relief for lack of standing, the district court emphasized that Boise’s ordinances, as amended in 2014, preclude the City from issuing a citation when there is no available space at a shelter, and there is consequently no risk that either Martin or Anderson will be cited under such circumstances in the future. Viewing the record in the light most favorable to the plaintiffs, we cannot agree. Although the 2014 amendments preclude the City from enforcing the ordinances when there is no room available at any shelter, the record demonstrates that the City is wholly reliant on the shelters to self-report when they are full. It is undisputed that Sanctuary is full as to men on a substantial percentage of nights, perhaps as high as 50%. The City nevertheless emphasizes that since the adoption of the Shelter Protocol in 2010, the BRM facilities, River of Life and City Light, have never reported that they are full, and BRM states that it will never turn people away due to lack space. 575 177 MARTIN V. CITY OF BOISE 17 The plaintiffs have pointed to substantial evidence in the record, however, indicating that whether or not the BRM facilities are ever full or turn homeless individuals away for lack of space, they do refuse to shelter homeless people who exhaust the number of days allotted by the facilities. Specifically, the plaintiffs allege, and the City does not dispute, that it is BRM’s policy to limit men to 17 consecutive days in the Emergency Services Program, after which they cannot return to River of Life for 30 days; City Light has a similar 30-day limit for women and children. Anderson testified that BRM has enforced this policy against him in the past, forcing him to sleep outdoors. The plaintiffs have adduced further evidence indicating that River ofLife permits individuals to remain at the shelter after 17 days in the Emergency Services Program only on the condition that they become part of the New Life Discipleship program, which has a mandatory religious focus. For example, there is evidence that participants in the New Life Program are not allowed to spend days at Corpus Christi, a local Catholic program, “because it’s . . . a different sect.” There are also facts in dispute concerning whether the Emergency Services Program itself has a religious component. Although the City argues strenuously that the Emergency Services Program is secular, Anderson testified to the contrary; he stated that he was once required to attend chapel before being permitted to eat dinner at the River of Life shelter. Both Martin and Anderson have objected to the overall religious atmosphere of the River of Life shelter, including the Christian messaging on the shelter’s intake form and the Christian iconography on the shelter walls. A city cannot, via the threat of prosecution, coerce an individual to attend religion-based treatmentprograms consistently with the Establishment Clause of the First Amendment. Inouye v. 576 178 MARTIN V. CITY OFBOISE18 Kemna, 504 F.3d 705, 712–13 (9th Cir. 2007). Yet at the conclusion of a 17-day stay at River of Life, or a 30-day stay at City Light, an individual may be forced to choose between sleepingoutside on nights when Sanctuary is full (and risking arrest under the ordinances), or enrolling in BRM programming that is antithetical to his or her religious beliefs. The 17-day and 30-day limits are not the only BRM policies which functionally limit access to BRM facilities even when space is nominally available. River of Life also turns individuals away if they voluntarily leave the shelter before the 17-day limit and then attempt to return within 30 days. An individual who voluntarily leaves a BRM facility for any reason — perhaps because temporary shelter is available at Sanctuary, or with friends or family, or in a hotel — cannot immediately return to the shelter if circumstances change. Moreover, BRM’s facilities may deny shelter to any individual who arrives after 5:30 pm, and generally will deny shelter to anyone arriving after 8:00 pm. Sanctuary, however, does not assign beds to persons on its waiting list until 9:00 pm. Thus, by the time a homeless individual on the Sanctuary waiting list discovers that the shelter has no room available, it may be too late to seek shelter at either BRM facility. So, even if we credit the City’s evidence that BRM’s facilities have never been “full,” and that the City has never cited any person under the ordinances who could not obtain shelter “due to a lack of shelter capacity,” there remains a genuine issue of material fact as to whether homeless individuals in Boise run a credible risk of being issued a citation on a night when Sanctuary is full and they have been denied entry to a BRM facilityfor reasons other than shelter capacity. If so, then as a practical matter, no shelter is 577 179 MARTIN V. CITY OF BOISE 19 available. We note that despite the Shelter Protocol and the amendments to both ordinances, the City continues regularly to issue citations for violating both ordinances; during the first three months of 2015, the Boise Police Department issued over 175 such citations. The City argues that Martin faces little risk of prosecution under either ordinance because he has not lived in Boise since 2013. Martin states, however, that he is still homeless and still visits Boise several times a year to visit his minor son, and that he has continued to seek shelter at Sanctuary and River of Life. Although Martin mayno longer spend enough time in Boise to risk running afoul of BRM’s 17-day limit, he testified that he has unsuccessfully sought shelter at River of Life after being placed on Sanctuary’s waiting list, only to discover later in the evening that Sanctuary had no available beds. Should Martin return to Boise to visit his son, there is a reasonable possibility that he might again seek shelter at Sanctuary, only to discover (after BRM has closed for the night) that Sanctuary has no space for him. Anderson, for his part, continues to live in Boise and states that he remains homeless. We conclude that both Martin and Anderson have demonstrated a genuine issue of material fact regarding whether they face a credible risk of prosecution under the ordinances in the future on a night when they have been denied access to Boise’s homeless shelters; both plaintiffs therefore have standing to seek prospective relief. B.Heck v. Humphrey We turn next to the impact of Heck v. Humphrey and its progeny on this case. With regard to retrospective relief, the 578 180 MARTIN V. CITY OFBOISE20 plaintiffs maintain that Heck should not bar their claims because, with one exception, all of the plaintiffs were sentenced to time served.7 It would therefore have been impossible for the plaintiffs to obtain federal habeas relief, as any petition for a writ of habeas corpus must be filed while the petitioner is “in custody pursuant to the judgment of a State court.” See 28 U.S.C. § 2254(a); Spencer v. Kemna, 523 U.S. 1, 7, 17–18 (1998). With regard to prospective relief, the plaintiffs emphasize that they seek only equitable protection against future enforcement of an allegedly unconstitutional statute, and not to invalidate any prior conviction under the same statute. We hold that although the Heck line of cases precludes most — but not all — of the plaintiffs’ requests for retrospective relief, that doctrine has no application to the plaintiffs’ request for an injunction enjoining prospective enforcement of the ordinances. 1.The Heck Doctrine A long line of Supreme Court case law, beginning with Preiser v. Rodriguez, 411 U.S. 475 ( 1973), holds that a prisoner in state custody cannot use a § 1983 action to challenge the fact or duration of his or her confinement, but must instead seek federal habeas corpus relief or analogous state relief. Id. at 477, 500. Preiser considered whether a prison inmate could bring a § 1983 action seeking an injunction to remedy an unconstitutional deprivation of good- time conduct credits. Observing that habeas corpus is the traditional instrument to obtain release from unlawful 7 Plaintiff Pamela Hawkes was convicted of violating the Camping Ordinance or Disorderly Conduct Ordinance on twelve occasions; although she was usually sentenced to time served, she was twice sentenced to one additional day in jail. 579 181 MARTIN V. CITY OF BOISE 21 confinement, Preiser recognized an implicit exception from 1983’s broad scope for actions that lie “within the core of habeas corpus” — specifically, challenges to the “fact or duration” of confinement. Id. at 487, 500. The Supreme Court subsequently held, however, that although Preiser barred inmates from obtaining an injunction to restore good- time credits via a § 1983 action, Preiser did not “preclude a litigant with standing from obtaining by way of ancillary relief an otherwise proper injunction enjoining the prospective enforcement of invalid prison regulations.” Wolff v. McDonnell, 418 U.S. 539, 555 (1974) (emphasis added). Heck addressed a § 1983 action brought by an inmate seeking compensatory and punitive damages. The inmate alleged that state and county officials had engaged in unlawful investigations and knowing destruction of exculpatory evidence. Heck, 512 U.S. at 479. The Court in Heck analogized a § 1983 action of this type, which called into question the validity of an underlying conviction, to a cause of action for malicious prosecution, id. at 483–84, and went on to hold that, as with a malicious prosecution claim, a plaintiff in such an action must demonstrate a favorable termination of the criminal proceedings before seeking tort relief, id. at 486–87. “[T]o recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus.” Id. 580 182 MARTIN V. CITY OFBOISE22 Edwards v. Balisok, 520 U.S. 641 (1997) extended Heck’s holding to claims for declaratory relief. Id. at 648. The plaintiff in Edwards alleged that he had been deprived of earned good-time credits without due process of law, because the decisionmaker in disciplinary proceedings had concealed exculpatory evidence. Because the plaintiff’s claim for declaratory relief was “based on allegations of deceit and bias on the part of the decisionmaker that necessarily imply the invalidity of the punishment imposed,” Edwards held, it was not cognizable under § 1983.” Id. Edwards went on to hold, however, that a requested injunction requiring prison officials to date-stamp witness statements was not Heck-barred, reasoning that a “prayer for such prospective relief will not necessarily imply’ the invalidity of a previous loss of good- time credits, and so may properly be brought under § 1983.” Id. (emphasis added). Most recently, Wilkinson v. Dotson, 544 U.S. 74 (2005), stated that Heck bars § 1983 suits even when the relief sought is prospective injunctive or declaratory relief, “if success in that action would necessarily demonstrate the invalidity of confinement or its duration.” Id. at 81–82 (emphasis omitted). But Wilkinson held that the plaintiffs in that case could seek a prospective injunction compelling the state to comply with constitutional requirements in parole proceedings in the future. The Court observed that the prisoners’ claims for future relief, “if successful, will not necessarily imply the invalidityof confinement or shorten its duration.” Id. at 82. The Supreme Court did not, in these cases or any other, conclusively determinewhether Heck’s favorable-termination requirement applies to convicts who have no practical opportunity to challenge their conviction or sentence via a 581 183 MARTIN V. CITY OF BOISE 23 petition for habeas corpus. See Muhammad v. Close, 540 U.S. 749, 752 & n.2 (2004). But in Spencer, five Justices suggested that Heck may not apply in such circumstances. Spencer, 523 U.S. at 3. The petitioner in Spencer had filed a federal habeas petition seeking to invalidate an order revoking his parole. While the habeas petition was pending, the petitioner’s term of imprisonment expired, and his habeas petition was consequently dismissed as moot. Justice Souter wrote a concurring opinion in which three other Justices joined, addressing the petitioner’s argument that if his habeas petition were mooted by his release, any § 1983 action would be barred under Heck, yet he would no longer have access to a federal habeas forum to challenge the validity of his parole revocation. Id. at 18–19 (Souter, J., concurring). Justice Souter stated that in his view “Heck has no such effect,” and that “a former prisoner, no longer ‘in custody,’ may bring a 1983 action establishing the unconstitutionality of a conviction or confinement without being bound to satisfy a favorable-termination requirement that it would be impossible as a matter of law for him to satisfy.” Id. at 21. Justice Stevens, dissenting, stated that he would have held the habeas petition in Spencer not moot, but agreed that “[g]iven the Court’s holding that petitioner does not have a remedy under the habeas statute, it is perfectly clear . . . that he may bring an action under 42 U.S.C. § 1983.” Id. at 25 n.8 Stevens, J., dissenting). Relying on the concurring and dissenting opinions in Spencer, we have held that the “unavailability of a remedy in habeas corpus because of mootness” permitted a plaintiff released from custody to maintain a § 1983 action for damages, “even though success in that action would imply the 582 184 MARTIN V. CITY OFBOISE24 invalidity of the disciplinary proceeding that caused revocation of his good-time credits.” Nonnette v. Small, 316 F.3d 872, 876 (9th Cir. 2002). But we have limited Nonnette in recent years. Most notably, we held in Lyall v. City of Los Angeles, 807 F.3d 1178 (9th Cir. 2015), that even where a plaintiff had no practical opportunity to pursue federal habeas relief while detained because of the short duration of his confinement, Heck bars a § 1983 action that would imply the invalidity of a prior conviction if the plaintiff could have sought invalidation of the underlying conviction via direct appeal or state post-conviction relief, but did not do so. Id. at 1192 & n.12. 2.Retrospective Relief Here, the majority of the plaintiffs’ claims for retrospective relief are governed squarely by Lyall. It is undisputed that all the plaintiffs not only failed to challenge their convictions on direct appeal but expressly waived the right to do so as a condition of their guilty pleas. The plaintiffs have made no showing that any of their convictions were invalidated via state post-conviction relief. We therefore hold that all but two of the plaintiffs’ claims for damages are foreclosed under Lyall. Two of the plaintiffs, however, Robert Martin andPamela Hawkes, also received citations under the ordinances that were dismissed before the state obtained a conviction. Hawkes was cited for violating the Camping Ordinance on July 8, 2007; that violation was dismissed on August 28, 2007. Martin was cited for violating the Disorderly Conduct Ordinance on April 24, 2009; those charges were dismissed on September 9, 2009. With respect to these two incidents, the district court erred in finding that the plaintiffs’ Eighth 583 185 MARTIN V. CITY OF BOISE 25 Amendment challenge was barred by Heck. Where there is no “conviction or sentence” that may be undermined by a grant of relief to the plaintiffs, the Heck doctrine has no application. 512 U.S. at 486–87; see also Wallace v. Kato, 549 U.S. 384, 393 (2007). Relying on Ingraham v. Wright, 430 U.S. 651, 664 1977), the City argues that the Eighth Amendment, and the Cruel and Unusual Punishments Clause in particular, have no application where there has been no conviction. The City’s reliance on Ingraham is misplaced. As the Supreme Court observed in Ingraham, the Cruel and Unusual Punishments Clause not only limits the types of punishment that may be imposed and prohibits the imposition of punishment grossly disproportionate to the severity of the crime, but also imposes substantive limits on what can be made criminal and punished as such.” Id. at 667. “This [latter] protection governs the criminal law process as a whole, not only the imposition of punishment postconviction.” Jones, 444 F.3d at 1128. Ingraham concerned only whether “impositions outside the criminal process” — in that case, the paddling of schoolchildren — “ constituted cruel and unusual punishment.” 430 U.S. at 667. Ingraham did not hold that a plaintiff challenging the state’s power to criminalize a particular status or conduct in the first instance, as the plaintiffs in this case do, must first be convicted. If conviction were a prerequisite for such a challenge, “the state could in effect punish individuals in the preconviction stages of the criminal law enforcement process for being or doing things that under the [Cruel and Unusual Punishments Clause] cannot be subject to the criminal process.” Jones, 444 F.3d at 1129. For those rare Eighth Amendment 584 186 MARTIN V. CITY OFBOISE26 challenges concerning the state’s very power to criminalize particular behavior or status, then, a plaintiff need demonstrate only the initiation of the criminal process against him, not a conviction. 3.Prospective Relief The district court also erred in concluding that the plaintiffs’ requests for prospective injunctive relief were barred by Heck. The district court relied entirely on language in Wilkinson stating that “a state prisoner’s § 1983 action is barred (absent prior invalidation) . . . no matter the relief sought (damages or equitable relief) . . . if success in that action would necessarily demonstrate the invalidity of confinement or its duration.” Wilkinson, 544 U.S. at 81–82. The district court concluded from this language in Wilkinson that a person convicted under an allegedly unconstitutional statute may never challenge the validity or application of that statute after the initial criminal proceeding is complete, even when the relief sought is prospective only and independent of the prior conviction. The logical extension of the district court’s interpretation is that an individual who does not successfully invalidate a first conviction under an unconstitutional statute will have no opportunity to challenge that statute prospectively so as to avoid arrest and conviction for violating that same statute in the future. Neither Wilkinson nor any other case in the Heck line supports such a result. Rather, Wolff, Edwards, and Wilkinson compel the opposite conclusion. Wolff held that although Preiser barred a § 1983 action seeking restoration of good-time credits absent a successful challenge in federal habeas proceedings, Preiser did not 585 187 MARTIN V. CITY OF BOISE 27 preclude a litigant with standing from obtaining by way of ancillary relief an otherwise proper injunction enjoining the prospective enforcement of invalid . . . regulations.” Wolff, 418 U.S. at 555. Although Wolff was decided before Heck, the Court subsequently made clear that Heck effected no change in the law in this regard, observing in Edwards that o]rdinarily, a prayer for . . . prospective [injunctive] relief will not ‘necessarily imply’ the invalidity of a previous loss of good-time credits, and so may properly be brought under 1983.” Edwards, 520 U.S. at 648 (emphasis added). Importantly, the Court held in Edwards that although the plaintiff could not, consistently with Heck, seek a declaratory judgment stating that the procedures employed by state officials that deprived him of good-time credits were unconstitutional, he could seek an injunction barring such allegedly unconstitutional procedures in the future. Id. Finally, the Court noted in Wilkinson that the Heck line of cases “has focused on the need to ensure that state prisoners use only habeas corpus (or similar state) remedies when they seek to invalidate the duration of their confinement,” Wilkinson, 544 U.S. at 81 (emphasis added), alluding to an existing confinement, not one yet to come. The Heck doctrine, in other words, serves to ensure the finality and validity of previous convictions, not to insulate future prosecutions from challenge. In context, it is clearthat Wilkinson’s holding that the Heck doctrine bars a § 1983 action “no matter the relief sought (damages or equitable relief) . . . if success in that action would necessarily demonstrate the invalidity of confinement or its duration” applies to equitable relief concerning an existing confinement, not to suits seeking to preclude an unconstitutional confinement in the future, arising from incidents occurring after any prior conviction and stemming 586 188 MARTIN V. CITY OFBOISE28 from a possible later prosecution and conviction. Id. at 81–82 emphasis added). As Wilkinson held, “claims for future relief (which, if successful, will not necessarily imply the invalidity of confinement or shorten its duration)” are distant from the “core” of habeas corpus with which the Heck line of cases is concerned, and are not precluded by the Heck doctrine. Id. at 82. In sum, we hold that the majority of the plaintiffs’ claims for retrospective relief are barred by Heck, but both Martin and Hawkes stated claims for damages to which Heck has no application. We further hold that Heck has no application to the plaintiffs’ requests for prospective injunctive relief. C.The Eighth Amendment At last, we turn to the merits — does the Cruel and Unusual Punishments Clause of the Eighth Amendment preclude the enforcement of a statute prohibiting sleeping outside against homeless individuals with no access to alternative shelter? We hold that it does, for essentially the same reasons articulated in the now-vacated Jones opinion. The Eighth Amendment states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const., amend. VIII. The Cruel and Unusual Punishments Clause “circumscribes the criminal process in three ways.” Ingraham, 430 U.S. at 667. First, it limits the type of punishment the government may impose; second, it proscribes punishment “grossly disproportionate” to the severity of the crime; and third, it places substantive limits on what the government may criminalize. Id. It is the thirdlimitation that is pertinent here. 587 189 MARTIN V. CITY OF BOISE 29 Even one day in prison would be a cruel and unusual punishment for the ‘crime’ of having a common cold.” Robinson v. California, 370 U.S. 660, 667 (1962). Cases construing substantive limits as to what the government may criminalize are rare, however, and for good reason — the Cruel and Unusual Punishments Clause’s third limitation is one to be applied sparingly.” Ingraham, 430 U.S. at 667. Robinson, the seminal case in this branch of Eighth Amendment jurisprudence, held a California statute that ma[de] the ‘status’ of narcotic addiction a criminal offense” invalid under the Cruel and Unusual Punishments Clause. 370 U.S. at 666. The California law at issue in Robinson was not one which punishe[d] a person for the use of narcotics, for their purchase, sale or possession, or for antisocial or disorderly behavior resulting from their administration”; it punished addiction itself. Id. Recognizing narcotics addiction as an illness or disease — “apparently an illness which may be contracted innocently or involuntarily” — and observing that a “law which made a criminal offense of . . . a disease would doubtless be universally thought to be an infliction of cruel and unusual punishment,” Robinson held the challenged statute a violation of the Eighth Amendment. Id. at 666–67. As Jones observed, Robinson did notexplain at length the principles underpinning its holding. See Jones, 444 F.3d at 1133. In Powell v. Texas, 392 U.S. 514 (1968), however, the Court elaborated on the principle first articulated in Robinson. Powell concerned the constitutionality of a Texas law making public drunkenness a criminal offense. Justice Marshall, writing for a plurality of the Court, distinguished the Texas statute from the law at issue in Robinson on the 588 190 MARTIN V. CITY OFBOISE30 ground that the Texas statute made criminal not alcoholism but conduct — appearing in public while intoxicated. A]ppellant was convicted, not for being a chronic alcoholic, but for being in public while drunk on a particular occasion. The State of Texas thus has not sought to punish a mere status, as California did in Robinson; nor has it attempted to regulate appellant’s behavior in the privacy of his own home.” Id. at 532 (plurality opinion). The Powell plurality opinion went on to interpret Robinson as precluding only the criminalization of “status,” not of “involuntary” conduct. “The entire thrust of Robinson’s interpretation of the Cruel and Unusual Punishment Clause is that criminal penalties may be inflicted only if the accused has committed some act, has engaged in some behavior, which society has an interest in preventing, or perhaps in historical common law terms, has committed some actus reus. It thus does not deal with the question of whether certain conduct cannot constitutionally be punished because it is, in some sense, ‘involuntary’ . . . .” Id. at 533. Four Justices dissented from the Court’s holding in Powell; Justice White concurred in the result alone. Notably, Justice White noted that many chronic alcoholics are also homeless, and that for those individuals, public drunkenness may be unavoidable as a practical matter. “For all practical purposes the public streets may be home for these unfortunates, not because their disease compels them to be there, but because, drunk or sober, they have no place else to go and no place else to be when they are drinking. . . . For some of these alcoholics I would think a showing could be made that resisting drunkenness is impossible and that avoiding public places when intoxicated is also impossible. As applied to them this statute is in effect a law which bans 589 191 MARTIN V. CITY OF BOISE 31 a single act for which they may not be convicted under the Eighth Amendment — the act of getting drunk.” Id. at 551 White, J., concurring in the judgment). The four dissenting Justices adopted a position consistent with that taken by Justice White: that under Robinson, criminal penalties may not be inflicted upon a person for being in a condition he is powerless to change,” and that the defendant, “once intoxicated, . . . could not prevent himself from appearing in public places.” Id. at 567 (Fortas, J., dissenting). Thus, five Justices gleaned from Robinson the principle that “that the Eighth Amendment prohibits the state from punishing an involuntary act or condition if it is the unavoidable consequence of one’s status or being.” Jones, 444 F.3d at 1135; see also United States v. Roberston, 875 F.3d 1281, 1291 (9th Cir. 2017). This principle compels the conclusion that the Eighth Amendment prohibits the imposition of criminal penalties for sitting, sleeping, or lying outside on public property for homeless individuals who cannot obtain shelter. As Jones reasoned, “[w]hether sitting, lying, and sleeping are defined as acts or conditions, they are universal and unavoidable consequences of being human.” Jones, 444 F.3d at 1136. Moreover, any “conduct at issue here is involuntary and inseparable from status — they are one and the same, given that human beings are biologically compelled to rest, whether by sitting, lying, or sleeping.” Id. As a result, just as the state may not criminalize the state of being “homeless in public places,” the state may not “criminalize conduct that is an unavoidable consequence of being homeless — namely sitting, lying, or sleeping on the streets.” Id. at 1137. 590 192 MARTIN V. CITY OFBOISE32 Our holding is a narrow one. Like the Jones panel, “we in no way dictate to the City that it must provide sufficient shelter for the homeless, or allow anyone who wishes to sit, lie, or sleep on the streets . . . at any time and at any place.” Id. at 1138. We hold only that “so long as there is a greater number of homeless individuals in [a jurisdiction] than the number of available beds [in shelters],” the jurisdiction cannot prosecute homeless individuals for “involuntarily sitting, lying, and sleeping in public.” Id. That is, as long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter.8 We are not alone in reaching this conclusion. As one court has observed, “resisting the need to eat, sleep or engage in other life-sustaining activities is impossible. Avoiding public places when engaging in this otherwise innocent conduct is also impossible. . . . As long as the homeless plaintiffs do not have a single place where they can lawfully be, the challenged ordinances, as applied to them, effectively 8 Naturally, our holding does not cover individuals who do have access to adequate temporary shelter, whether because they have the means to pay for it or because it is realistically available to them for free, but who choose not to use it. Nor do we suggest that a jurisdiction with insufficient shelter can never criminalize theact of sleeping outside. Even where shelter is unavailable, an ordinance prohibiting sitting, lying, or sleepingoutside at particular times or in particular locations might well be constitutionally permissible. See Jones, 444 F.3d at 1123. So, too, might an ordinance barring the obstruction of public rights of way or the erection of certain structures. Whether some other ordinance is consistent with the Eighth Amendment will depend, as here, on whether it punishes a person for lacking the means to live out the “universal and unavoidable consequences of being human” in the way the ordinance prescribes. Id. at 1136. 591 193 MARTIN V. CITY OF BOISE 33 punish them for something for which they may not be convicted under the [E]ighth [A]mendment — sleeping, eating and other innocent conduct.” Pottinger v. City of Miami, 810 F. Supp. 1551, 1565 (S.D. Fla. 1992); see also Johnson v. City of Dallas, 860 F. Supp. 344, 350 (N.D. Tex. 1994) (holding that a “sleeping in public ordinance as applied against the homeless is unconstitutional”), rev’d on other grounds, 61 F.3d 442 (5th Cir. 1995).9 Here, the two ordinances criminalize the simple act of sleeping outside on public property, whether bare or with a blanket or other basic bedding. The Disorderly Conduct Ordinance, on its face, criminalizes “[o]ccupying, lodging, or sleeping in any building, structure or place, whether public or private” without permission. Boise City Code § 6-01-05. Its scope is just as sweeping as the Los Angeles ordinance at issue in Jones, which mandated that “[n]o person shall sit, lie or sleep in or upon any street, sidewalk or other public way.” 444 F.3d at 1123. The Camping Ordinance criminalizes using “any of the streets, sidewalks, parks or public places as a camping place 9 In Joel v. City of Orlando, 232 F.3d 1353, 1362 (11th Cir. 2000), the Eleventh Circuit upheld an anti-camping ordinance similar to Boise’s against an Eighth Amendment challenge. In Joel, however, the defendants presented unrefuted evidence that the homeless shelters in the City of Orlando had never reached capacity and that the plaintiffs had always enjoyed access to shelter space. Id. Those unrefuted facts were critical to the court’s holding. Id. As discussed below, the plaintiffs here have demonstrated a genuine issue of material fact concerning whether they have been denied access to shelter in the past or expect to be so denied in the future. Joel therefore does not provide persuasive guidance for this case. 592 194 MARTIN V. CITY OFBOISE34 at any time.” Boise City Code § 9-10-02. The ordinance defines “camping” broadly: The term “camp” or “camping” shall mean the use of public property as a temporary or permanent place of dwelling, lodging, or residence, or as a living accommodation at anytime between sunset and sunrise, or as a sojourn. Indicia of camping may include, but are not limited to, storage of personal belongings, using tents or other temporary structures for sleeping or storage of personal belongings, carrying on cooking activities or making any fire in an unauthorized area, or any of these activities in combination with one another or in combination with either sleeping or making preparations to sleep including the laying down of bedding for the purpose of sleeping). Id. It appears from the record that the Camping Ordinance is frequently enforced against homeless individuals with some elementary bedding, whether or not any of the other listed indicia of “camping” — the erection of temporary structures, the activity of cooking or making fire, or the storage of personal property — are present. For example, a Boise police officer testified that he cited plaintiff Pamela Hawkes under the Camping Ordinance for sleeping outside “wrapped in a blanket with her sandals off and next to her,” for sleeping in a public restroom “with blankets,” and for sleeping in a park on a blanket, wrapped in blankets on the ground.” The Camping Ordinance therefore can be, and allegedly is, enforced against homeless individuals who take even the most rudimentary precautions to protect themselves from the 593 195 MARTIN V. CITY OF BOISE 35 elements. We conclude that a municipality cannot criminalize such behavior consistently with the Eighth Amendment when no sleeping space is practically available in any shelter. III. Conclusion For the foregoing reasons, we AFFIRM the judgment of the district court as to the plaintiffs’ requests for retrospective relief, except as such claims relate to Hawkes’s July 2007 citation under the Camping Ordinance and Martin’s April 2009 citation under the Disorderly Conduct Ordinance. We REVERSE and REMAND with respect to the plaintiffs’ requests for prospective relief, both declaratory and injunctive, and to the plaintiffs’ claims for retrospective relief insofar as they relate to Hawkes’ July 2007 citation or Martin’s April 2009 citation.10 10 Costs shall be awarded to the plaintiffs. 594 196 MARTIN V. CITY OFBOISE36 OWENS, Circuit Judge, concurring in part and dissenting in part: I agree with the majority that the doctrine of Heck v. Humphrey, 512 U.S. 477 ( 1994), bars the plaintiffs’ 42 U.S.C. § 1983 claims for damages that are based on convictions that have not been challenged on direct appeal or invalidated in state post-conviction relief. See Lyall v. City of Los Angeles, 807 F.3d 1178, 1192 n.12 (9th Cir. 2015). I also agree that Heck and its progeny have no application where there is no “conviction or sentence” that would be undermined by granting a plaintiff’s request for relief under 1983. Heck, 512 U.S. at 486–87; see also Wallace v. Kato, 549 U.S. 384, 393 (2007). I therefore concur in the majority’s conclusion thatHeck does not bar plaintiffs Robert Martin and Pamela Hawkes from seeking retrospective relief for the two instances in which they received citations, but not convictions. I also concur in the majority’s Eighth Amendment analysis as to those two claims for retrospective relief. Where I part ways with the majority is in my understanding of Heck’s application to the plaintiffs’ claims for declaratory and injunctive relief. In Wilkinson v. Dotson, 544 U.S. 74 (2005), the Supreme Court explained where the Heck doctrine stands today: A] state prisoner’s § 1983 action is barred absent prior invalidation)—no matter the relief sought (damages or equitable relief), no matter the target of the prisoner’s suit (state conduct leading to conviction or internal prison proceedings)—if success in that action 595 197 MARTIN V. CITY OF BOISE 37 would necessarily demonstrate the invalidity of confinement or its duration. Id. at 81–82. Here, the majority acknowledges this language in Wilkinson, but concludes that Heck’s bar on any type of relief that “would necessarily demonstrate the invalidity of confinement” does not preclude the prospective claims at issue. The majority reasons that the purpose of Heck is “to ensure the finality and validity of previous convictions, not to insulate future prosecutions from challenge,” and so concludes that the plaintiffs’ prospective claims may proceed. I respectfully disagree. A declarationthat the city ordinances are unconstitutional and an injunction against their future enforcement necessarily demonstrate the invalidity of the plaintiffs’ prior convictions. Indeed , any time an individual challenges the constitutionality of a substantive criminal statute under which he has been convicted, he asks for a judgment that would necessarily demonstrate the invalidity of his conviction. And though neither the Supreme Court nor this court has squarely addressed Heck’s application to § 1983 claims challenging the constitutionality of a substantive criminal statute, I believe Edwardsv. Balisok, 520 U.S. 641 (1997), makes clear that Heck prohibits such challenges. In Edwards, the Supreme Court explained that although our court had recognized that Heck barred § 1983 claims challenging the validity of a prisoner’s confinement “as a substantive matter,” it improperly distinguished as not Heck-barred all claims alleging only procedural violations. 520 U.S. at 645. In holding that Heck also barred those procedural claims that would necessarily imply the invalidity of a conviction, the Court did not question our conclusion that claims challenging a conviction “as a substantive matter” are barred by Heck. 596 198 MARTIN V. CITY OFBOISE38 Id.; see also Wilkinson, 544 U.S. at 82 (holding that the plaintiffs’ claims could proceed because the relief requested would only “render invalid the state procedures” and “a favorable judgment [would] not ‘necessarily imply the invalidity of [their] conviction[s] or sentence[s]’” (emphasis added) (quoting Heck, 512 U.S. at 487)). Edwards thus leads me to concludethat an individual who was convicted under a criminal statute, but who did not challenge the constitutionality of the statute at the time of his conviction through direct appeal or post-conviction relief, cannot do so in the first instance by seeking declaratory or injunctive relief under § 1983. See Abusaid v. Hillsborough Cty. Bd. of Cty. Comm’rs, 405 F.3d 1298, 1316 n.9 (11th Cir. 2005) (assuming that a §1983 claim challenging “the constitutionality of theordinance under which [the petitioner was convicted]” would be Heck-barred). I therefore would hold that Heck bars the plaintiffs’ claims for declaratory and injunctive relief. We are not the first court to struggle applying Heck to real life examples,” nor will we be the last. See, e.g., Spencer v. Kemna, 523 U.S. 1, 21 (1998) (Ginsburg, J., concurring) (alterations and internalquotation marks omitted) explaining that her thoughts on Heck had changed since she joined the majority opinion in that case). If the slate were blank, I would agree that the majority’s holding as to prospective relief makes good sense. But because I read Heck and its progeny differently, I dissent as to that section of the majority’s opinion. I otherwise join the majority in full. 597 199 City of Huntington Beach File #:19-409 MEETING DATE:4/1/2019 REQUEST FOR CITY COUNCIL ACTION SUBMITTED TO:Honorable Council Members SUBMITTED BY:Erik Peterson, Mayor Lyn Semeta, Mayor Pro Tem DATE:April 1, 2019 Subject: Notice of Termination of Rainbow/Republic Services Evergreen Contract Statement of Issue: The City of Huntington Beach is under contract (“Contract”) with Rainbow Disposal/Republic Services (“Republic”) for refuse collection and other services. This Contract has not been substantially revised since 2006 and contains an “evergreen” clause that in essence requires a 15-year notice of cancellation. On May 15, 2017, Mayor Erik Peterson and Mayor Pro Tem Lyn Semeta brought an H- Item before the City Council seeking a review of the Contract. The City Council took action on the H- Item and established an Ad Hoc Committee. The Ad Hoc Committee gave direction to staff to attempt to negotiate a revised contract. Evergreen clauses put cities at a disadvantage as they renew automatically and hamper a city’s ability to obtain competitive pricing and terms. Despite multiple attempts to come to new terms, no agreement has been reached for a new or revised contract. It is in the best interests of the City and the taxpayers to give notice of cancellation of the Contract. Such cancellation does not preclude the parties from attempting to negotiate new terms and enter into a mutually agreeable new contract. Recommended Action: Direct the City Manager to prepare a letter of written notification to Republic Services of the City’s intent to terminate the current franchise agreement pursuant to the terms of the agreement, and present that termination letter to the City Council for approval at the next-scheduled City Council Meeting. City of Huntington Beach Printed on 3/27/2019Page 1 of 1 powered by Legistar™200 201