HomeMy WebLinkAbout06-Council Minutes
CITY OF SAN BERNARDINO
300 N. .. D" Street
San Bernardino, CA 92418
Website: www.sbcity.org
Mayor PoJrick J. Morris
Council Members:
Esther Estroda
Dennis J. Baxter
Tobin Brinker
4" Ward - Vacant
ehas Kelley
Rikke Van Johnson
We~ McCamnuu:k
MINUTES
MAYOR AND COMMON COUNCIL AND
COMMUNITY DEVELOPMENT COMMISSION
OF THE CITY OF SAN BERNARDINO
JOINT REGULAR MEETING
DECEMBER 15, 2008
COUNCIL CHAMBERS
The joint regular meeting of the Mayor and Common Council and Community
Development Commission of the City of San Bernardino was called to order by
Mayor/Chairman Morris at 1:39 p.m., Monday, December 15, 2008, in the Council
Chambers of City Hall, 300 North "D" Street, San Bernardino, California.
RoD CaD
Present:
Mayor/Chairman Morris; Council Members/Commissioners Baxter,
Brinker, Kelley, Johnson, McCammack; City Attorney Penman,
Director of Development Services Ross, City Clerk Clark.
Absent:
Council Member/Commissioner Estrada; Interim City Manager
Weinberg,
Vacant:
Fourth Ward.
Council Member/Commissioner Estrada arrived at 2:23 p.m.
1, Closed Session
Pursuant to Government Code Section(s):
A. Conference with legal counsel - existing litigation - pursuant to
Government Code Section 54956.9(a):
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12/15/2008
J .R" etc., et al. v. City of San Benardino, et al. - United States District
Court Case No. EDCV 2005-1045 JWJ; United States Court of Appeals
Case Nos. 07-56375 and 08-55102;
Alvarez, Jaime, et al. v. City. et al. - United States District Court Case
No. 00-03048 PA (Rcx);
Goldin/!;, Justin Ryan v. City of San Bernardino, et al. - San Bernardino
Superior Court Case No. CIVSS 700791;
Town of Apple Valley, et al. v. County of San Bernardino - (Waste
Disposal Agreement Litigation) Los Angeles County Superior Court
Case No. KC 049711 "J";
People v. Lopez - San Bernardino County Superior Court Case No.
SCVSS 134051;
Garrett Zimmon - Office of Administrative Hearings - Case No.
2007080890,
B. Conference with legal counsel - anticipated litigation - significant
exposure to litigation - pursuant to subdivision (b) (I), (2), (3) (A-F) of
Government Code Section 54956.9:
Inland Communities Corp. v. City of San Bernardino (Paradise Hills)
One (1) case
California Aviation Services, Inc. v. City of San Bernardino
Jennifer Newsome v. City of San Bernardino
Beverly Rainbolt v, City of San Bernardino
C. Conference with legal counsel - anticipated litigation - initiation of
litigation - pursuant to subdivision (c) of Government Code Section
54956.9:
City of San Bernardino v. California State University
D. Closed Session - personnel - pursuant to Government Code Section
54957:
Director of Code Enforcement
E. Closed session with Chief of Police on matters posing a threat to the
security of public buildings or threat to the public's right of access to
public services or public facilities - pursuant to Government Code
Section 54957.
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12/15/2008
F. Conference with labor negotiator - pursuant to Government Code
Section 54957.6.
G. Conference with real property negotiator - pursuant to Government Code
Section 54956.8:
1.
Property Address:
450 North "E" Street
APN: 0134-121-24
Nej!;otiatinj!; Parties:
Emil A. Marzullo, Interim
Executive Director, on behalf of the
Redevelopment Agency, and Scott
Bailey, on behalf of CinemaStar
Luxury Theaters, Inc.
Under Nej!;otiation:
Terms and conditions of lease and
occupancy arrangements.
2.
Property Address:
450 North "E" Street
APN: 0134-121-24
Nej!;otiatinj!; Parties:
Emil A. Marzullo, Interim
Executive Director, on behalf of the
Redevelopment Agency, and
Moctesuma Esparza, CEO and
Founder, on behalf of Maya
Cinemas .
Under Nej!;otiation:
Purchase price,
conditions.
terms
and
City Attorney Pemnan announced that the following additional case would be
discussed in closed session:
San Bernardino City Firefij!;hter Michael Koster v. City of San Bernardino, et
al. - San Bernardino Superior Court Case No. CIVSS 811048.
Public Comments on Closed Session Items
Bob Hull with the Law Offices of Lewitt Hackman, 16633 Ventura Blvd., 11th Floor,
Encino, CA, representing United Entertainment Corporation, spoke regarding Closed
Session Item No. IG, real property negotiations, and Item R25, regarding the potential
sale of the CinemaStar Luxury Theaters, Inc, He stated that at the end of last year and
during this year, his firm had been in discussions with the City and CinemaStar to lease
and then purchase the property. He stated that United Entertainment Corp. is ready,
willing and able to proceed with discussions and to make an offer on the property for
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12/15/2008
significantly more than the $4.6 million currently offered by Maya Cinemas. He added
that this would all be done by private financing-there would be no government or
HUD loans, He stated that Mike Ross, President of United Entertainment Corp.
wanted to express that he is available for any discussions or conversations on this
matter.
Reading of Resolutions & Ordinances
Deputy City Clerk Hartzel read into the record the titles of all the resolutions and
ordinances on the regular agenda of the Mayor and Common Council and Community
Development Commission.
Invocation/Pledge of Allegiance
The invocation was given by Councilman Rikke Van Johnson. The pledge of allegiance
was led by Audreyanna Huizar, a 6th grade student at Bradley Elementary School.
2. Appointments
There were no Commission appointments.
3. Proclamations & Presentations
Jasmine Ragland, a 12th grade student at Rialto High School with a GPA of
4.48, was presented a commendation and recognized as Student of the Month by
Council Member/Commissioner Brinker.
Council Members/Commissioners Estrada and McCammack were joined by the
other Council members and Council office staff in presenting a commendation
and bouquet of roses to Sylvia Loza, Council Administrative Supervisor, who is
retiring at the end of the year after 29 years of exemplary service to Council
members past and present.
The following individuals were presented a service pin award by Mayor Morris
in recognition of their many years of dedicated service to the City:
Name
-
Marilyn Dixon
Lynn Parker
Leslie Aguirre
Shirley Allen
Angela Encinas
Aurora Mendoza
David Baughman
Irma Castellanos
Kirsten Fountaine
Angelica Ordonez
Elva Reyes
Department
City Manager
Development Services
Fire
Fire
Library
Library
Police
Police
Police
Police
Police
4
Years of Service
30
5
5
15
10
40
10
30
5
5
5
12/15/2008
4. Announcements
Announcements were made by the Mayor, members of the Common Council,
elected officials, and a representative from the Chamber of Commerce regarding
various civic, community, and chamber events and activities.
5. Waive Full Reading of Resolutions & Ordinances
Council Member/Commissioner Baxter made a motion, seconded by Council
Member/Commissioner Brinker, that full reading of the resolutions and
ordinances on the regular agenda of the Mayor and Common Council and
Community Development Commission, be waived. The motion carried
unanimously with the Fourth Ward vacant.
6. Item Deleted
7. Claims & Payroll
Council Member/Commissioner Baxter made a motion, seconded by Council
Member/Commissioner Brinker, that the claims and payroll and the
authorization to issue warrants as listed in the memorandum dated December 8,
2008, from Barbara Pachon, Director of Finance, be approved. The motion
carried unanimonsly with the Fourth Ward vacant.
8, Persounel Actions
Council Member/Commissioner Baxter made a motion, seconded by Council
Member/Commissioner Brinker, that the personnel actions, as submitted by the
Chief Examiner, dated December 10, 2008, in accordance with Civil Service
rules and Personnel policies adopted by the Mayor and Common Council of the
City of San Bernardino, be approved and ratified. The motion carried
unanimously with the Fourth Ward vacant.
9. Transfer $400,000 from the unreserved general fund to the City Attorney's
budget as follows: $328,000 to Account No. 001-051-5503 and $72,000 to
Account No. 001-051-5177
Council Member/Commissioner Brinker requested that this item be held over
until the return of the Interim City Manager. He stated he would like to know
what this could mean for the overall budget and indicated he would like
discussion of the cases on a case-by-case basis as opposed to blanket approval of
a dollar amount.
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12/15/2008
City Attorney Penman indicated he had no trouble holding it over until Mr.
Weinberg returned; however, this was the normal budgeted amount.
Council Member/Commissioner Brinker made a motion, seconded by Council
Member/Commissioner Baxter, that the matter be continued to the
Council/Commission meeting of January 5, 2009. The motion carried
unanimously with the Fourth Ward vacant.
10. Budget amendment to fund part-time salaries in the City Manager's Office
for FY 2008/09
Council Member/Commissioner McCammack made a motion, seconded by
Council Member/Commissioner Baxter, that the Mayor and Common Council
authorize the Director of Finance to amend the FY 2008/09 budget by
transferring $35,000 from Account No. 001-011-5502 (Mayor's Office
Professional/Contractual Services) to Account No. 001-101-5014 (City
Manager's Office Salaries Temp/Part-time.) The motion carried unanimously
with the Fourth Ward vacant.
11. Resolutions authorizing the execution of Mills Act Preservation Agreements
RES. 2008-446 - Resolution authorizing the execution of a Mills Act
Preservation Agreement with Deborah Albert. (UA)
RES. 2008-447 - Resolution authorizing the execution of a Mills Act
Preservation Agreement with Brian and Nicole Baird. (UB)
RES. 2008-448 - Resolution authorizing the execution of a Mills Act
Preservation Agreement with Ronald and Adele Corsentino. (UC)
RES. 2008-449 - Resolution authorizing the execution of a Mills Act
Preservation Agreement with Kathryn Gail Mummery. (UD)
RES. 2008-450 - Resolution authorizing the execution of a Mills Act
Preservation Agreement with Slawomir and Alice Niewiadomski. (UE)
Council Member/Commissioner Baxter made a motion, seconded by Council
Member/Commissioner Brinker, that said resolutions A through E, be adopted.
Resolution Nos. 2008-446 through 2008-450 were adopted unanimously with
the Fourth Ward vacant.
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12/15/2008
12. RES. 2008-451 - Resolution of the City of San Bernardino approving an
agreement with Placo San Bernardino, LLC for provision of space for
temporary parking for Metrolink riders during realignment of Viaduct
Boulevard (SS07-32) and construction of the Metrolink parking structure
(GB04-19).
Council Member/Commissioner Baxter made a motion, seconded by Council
Member/Commissioner Brinker, that said resolution be adopted. Resolution
No. 2008-451 was adopted unanimously with the Fourth Ward vacant.
13. Revise salary for Fire Department Range P-3 (Fire Engineer), effective
August 1, 2008
Council Member/Commissioner Baxter made a motion, seconded by Council
Member/Commissioner Brinker, that the Mayor and Common Council approve
the revised P-3 (Fire Engineer) salary, effective August 1, 2008; and authorize
the Human Resources Department to amend Resolution No. 6429 to reflect said
action. The motion carried unanimously with the Fourth Ward vacant.
14. RES. 2008-452 - Resolution of the City of San Bernardino amending
Resolution No. 6429, entitled in part "A Resolution ... establishing a basic
compensation plan for officers and/or employees of the Police and Fire
Departments of the City of San Bernardino."
Council Member/Commissioner Baxter made a motion, seconded by Council
Member/Commissioner Brinker, that said resolution be adopted. Resolution
No. 2008-452 was adopted unanimously with the Fourth Ward vacant.
15. Resolutions identifying employee retirement contributions to the California
Public Employees Retirement System (CALPERS) to be treated as employer
contributions for tax purposes
RES. 2008-453 - Resolution of the Mayor and Common Council of the City
of San Bernardino for employer paid member contributions. (l5A)
RES. 2008-454 - Resolution of the Mayor and Common Council of the City
of San Bernardino for paying and reporting the value of employer paid
member contributions. (15B)
Council Member/Commissioner Baxter made a motion, seconded by Council
Member/Commissioner Brinker, that said resolutions A and B, be adopted.
Resolution Nos. 2008-453 and 2008-454 were adopted unanimously with the
Fourth Ward vacant.
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12/15/2008
16. RES. 2008-457 - Resolution of the Mayor and Common Council of the City
of San Bernardino recognizing the Green Valley Initiative and endorsing
participation as a Green Valley Jurisdiction.
Jay Lindberg, 6340 Orange Knoll, San Bernardino, CA, stated that this is all
well and good, but we need to start investing in alternative fuels in order to face
the energy challenges ahead,
Council Member/Commissioner Brinker made a motion, seconded by Council
Member/Commissioner Baxter, that said resolution be adopted. Resolution No.
2008-457 was adopted unanimously with the Fourth Ward vacant.
17. RES. 2008-455 - Resolution of the Mayor and Common Council of the City
of San Bernardino authorizing the City Manager to execute a revised
Facility Use Agreement with the San Bernardino City Unified School
District relative to the use of 156 parking spaces in the parking lot at
Speicher Park, and ratifying any action taken between October 7, 2008 and
the date that this resolution is adopted.
City Attorney Penman stated that he would abstain because his wife is a member
of the school board. Council Member/Commissioner McCammack stated she
would abstain because the school district is one of her clients.
Council Member/Commissioner Baxter made a motion, seconded by Council
Member/Commissioner Brinker, that said resolution be adopted. Resolution
No. 2008-455 was adopted. Ayes: Estrada, Baxter, Brinker, Kelley,
Johnson. Nays: None. Abstentious: McCammack. Vacant: Fourth
Ward.
18. Budget amendment and Persounel motious to implement in-house graffiti
removal and property abatement services
Joe Ortiz, 387 West 25th Street, San Bernardino, CA, spoke in opposition to
this item, stating that those members of the Council who voted out Los Padrinos
don't have a clue about the business of graffiti removal services.
Council Member/Commissioner McCammack expressed concerns regarding the
proposal insofar as persounel and budget. She felt there was a lack of foresight
in the proposal; and stated that if staff had worked a little harder to help Los
Padrinos to work through their contractual issues, reporting issues, and
accountability issues, the problems could have been resolved.
Council Member/Commissioner Kelley stated that the Council spent a great deal
of time on this particular subject, and the City needs to try something new-that
Los Padrinos is not interested in working past 12/31/08. He stated that if this
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12/15/2008
new program fails, he will be the first one to say they need to try something
else,
Council Member/Commissioner Estrada stated that she also was concerned
about this proposal because she does not see a plan. She stated that she needs to
see a plan that identifies the problem, states how the problem is going to be
addressed, identifies the participants and when and how they are going to
participate, and what the cost will be.
Carolina Chavez, speaking in support of Los Padrinos, stated that the Probation
Department had received 102 calls not to close Los Padrinos. She stated that
she wanted to make clear that they are trying to keep the program going-that
many of those involved have given 5-15 years to Los Padrinos and have been
mentors to the kids involved in the program.
Mayor/Chairman Morris stated that his office has been working with Ms.
Chavez regarding a new nonprofit board for Los Padrinos.
C. Patience Summers, 868 E. Rialto Avenue, San Bernardino, CA, stated that
Operation Phoenix is a nonprofit scam and expressed disdain for the Mayor and
his programs.
Council Member/Commissioner Brinker made a motion, seconded by Council
Member/Commissioner Kelley, that the Mayor and Common Council authorize
the addition of five (5) Maintenance Worker 1 (Flex) positions, Range 1350,
$2,543 to $3,092 per month, to Public Services Graffiti Removal Section;
authorize the addition of one (1) Maintenance Worker 1 (Flex) position, Range
1350, $2,543 to $3,092 per month to Public Services Right of Way Section;
authorize the addition of one (1) Lead Maintenance Worker position, Range
1420, $3,606 to $4,383 per month to Public Services Right of Way Section;
authorize the Director of Human Resources to update Resolution 97-244
(position control) to reflect the above actions; and authorize the Director of
Finance to amend the FY 2008/09 adopted budget as outlined in "Attachment 1"
to the staff report dated December 8, 2008, from Ken Fischer, Director of
Public Services. The motion carried. Ayes: Baxter, Brinker, Kelley,
Johnson. Nays: Estrada, McCammack. Absent: None. Vacant: Fourth
Ward.
19. RES. 2008-456 - Resolution of the Mayor and Common Council of the City
of San Bernardino authorizing an agreement between the City of San
Bernardino and the County of San Bernardino for participation in the San
Bernardino County Sheriff Department's Prisoner Work Release Program.
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12/1512008
Council Member/Commissioner Baxter made a motion, seconded by Council
Member/Commissioner Brinker, that said resolution be adopted. Resolution
No. 2008456 was adopted unanimously with the Fourth Ward vacant.
20. Item deleted
21. Public Hearing - Resolution authorizing the obligation and expenditure of
the allocated Citizens' Option for Public Safety (COPS) monies for FY
2008109 to supplement front-line law enforcement support services
RES. 2008-458 - Resolution of the City of San Bernardino authorizing the
obligation and expenditure of the allocated Citizens Option for Public Safety
(COPS Option) monies for FY 08109 to supplement front-line law
enforcement support services.
Mayor/Chairman Morris opened the hearing.
Jay Lindberg, 6340 Orange Knoll, San Bernardino, CA, stated that what is
currently being done to fight drugs is not working-that a different approach is
needed.
Council Member/Commissioner Brinker made a motion, seconded by Council
Member/Commissioner Baxter, that the hearing be closed; and that said
resolution be adopted. The motion carried and Resolution No. 2008-458 was
adopted unanimously with the Fourth Ward vacant.
22. Municipal Code Section 2.01.010 Mayor Pro-Tempore - Election of Mayor
Pro-Tempore
Council Member/Commissioner Estrada stated she did not support this action
and read into the record a statement regarding same.
Council Member/Commissioner Baxter made a motion, seconded by Council
Member/Commissioner Kelley, to nominate Councilman Rikke Van Johnson to
serve as Mayor Pro-Tempore until March 16, 2009. The motion carried.
Ayes: Baxter, Brinker, Kelley, Johnson. Nays: Estrada, McCammack.
Absent: None. Vacant: Fourth Ward.
23. National League of Cities Congress of Cities & Exposition Update
Council Member/Commissioner Kelley made a motion, seconded by Council
Member/Commissioner McCammack, that the matter be continued to the
Council/Commission meeting of January 5, 2009. The motion carried
unanimously with the Fourth Ward vacant.
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12/15/2008
COMMUNITY DEVELOPMENT COMMISSION
Present:
Mayor/Chairman Morris; Council Members/Commissioners Estrada,
Baxter, Brinker, Kelley, Johnson, McCammack; City Attorney Penman,
Economic Development Agency Interim Executive Director Marzullo
and Agency Counsel Sabo, City Clerk Clark.
Absent:
None.
Vacant:
Fourth Ward
R24. Joint Public Hearing - Waterman Holdings, LLC - Amendment No.4 to the
2004 Disposition and Development Agreement (Central City East
Redevelopment Project Area) (Continued from November 17, 2(08)
RES. 2008-459 - Resolution of the Mayor and Common Council of the City
of San Bernardino consenting to the disposition of certain real property by
the Redevelopment Agency of the City of San Bernardino ("Agency") to
Waterman Holdings, LLC (4th and Waterman Avenue - APN: 0135-191-17)
(Central City East Redevelopment Project Area). (R24A)
RES. CDC/2008-46 - Resolution of the Community Development
Commission of the City of San Bernardino approving the sale of certain real
property by the Redevelopment Agency of the City of San Bernardino
("Agency") to Waterman Holdings, LLC, and authorizing the Interim
Executive Director of the Agency to execute Amendment No. 4 to the 2004
Disposition and Development Agreement, as amended, between the Agency
and Waterman Holdings, LLC (4th Street and Waterman Avenue - APN:
0135-191-17) (Central City East Redevelopment Project Area). (R24B)
The hearing remained open.
Emil Marzullo, Interim Executive Director of the Economic Development
Agency, advised that this public hearing was continued from November 15,
2008; and at that time, staff presented testimony and there were questions both
from the Council and the City Attorney about the language in terms of sale of
the property and issues related to the Development Services Department and
other permits from federal and state agencies.
He stated that staff has added the appropriate language to Section 2.15 at the
request of the City Attorney, which requires in essence that the
developer/builder be completely through the entitlement process with state,
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12/15/2008
federal and local agencies before the Agency would actually do a transfer of
title.
Council Member/Commissioner McCammack stated that the issue she had
raised was the issue of who would bear the liability if something should happen
when a flood control or drainage cana1 is sold. For example, dumping
something upstream or creating a blockage upstream which created some other
ancillary problems.
Mr. Marzullo stated that they are really dealing with more of a local drainage
issue here rather than a Flood Control issue. He stated that this area was
originally part of the Warm Creek drainage system, and when that facility was
built and cut the Warm Creek drainage off, this remnant piece remained. It no
longer serves as a flood control, but it does serve to take some of the drainage
from Waterman Avenue. He stated that the challenge they have is that even
though this is just local drainage and would be handled through the development
process, it had in its historic context been identified as a blue line stream. That
challenge created another procedural process which the applicant is going
through with the Fish and Game and the Flood Control people. He stated that if
they look at this as a non-blue line stream, which they believe it is and needs to
be corrected, then it would really be an issue of the property owner, just like
any other drainage easement is on any other private property.
Ms. McCammack again questioned who would bear the liability if something
unusual or out of the ordinary happens that this pipe clogs, breaks or
disintegrates and ends up causing ancillary property damage to properties
upstream of it, or to this property owner's property.
Agency Counsel Sabo stated that what he added in the new Section 2.15, which
are the conditions of the close of escrow on page 7 of the amendment, items (vi)
and (vii), requires a Defense, Indemnification, and Hold Harmless Agreement
approved by the City Council and also a Maintenance and Operation
Agreement. Under those two agreements, the City will notify the Agency if
those conditions have been met-that the City has a satisfactory maintenance
agreement and an indemnification agreement; otherwise, they don't close the
escrow.
City Attorney Penman stated that originally his office did not sign off on this
agreement because they were concerned about these very issues; however, the
language that has been added, as mentioned by Mr. Sabo, basically gives the
Mayor and Council the authority to impose restrictions that they want. He
added that there will also have to be CEQA and NEPA mitigation measures
adopted; therefore, he thinks there's enough in there now to give the City the
protection that he didn't think was in the document previously.
No public comments were received.
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12/15/2008
Council Member/Commissioner Brinker made a motion, seconded by Council
Member/Commissioner Baxter, that the hearing be closed; and that said
resolutions A and B, be adopted. The motion carried and Mayor and
Common Council Resolution No. 2008-459 and Community Development
Commission Resolution No. CDC/2008-46 were adopted unanimously with
the Fourth Ward vacant.
R25. Joint Public Hearing - Maya Cinemas North America, Inc.
Disposition and Development Agreement (Central City
Redevelopment Project Area) (Continued from November 25,2(08)
- 2008
North
RES. 2008-460 - Resolution of the Mayor and Common Council of the City
of San Bernardino consenting to the disposition of certain real property by
the Redevelopment Agency of the City of San Bernardino ("Agency") to
Maya Cinemas North America, Inc. ("Developer") (450 North "E" Street -
APN: 0134-131-24, 25, 26, 27 and 28) (Central City North Redevelopment
Project Area). (R25A)
RES. CDC/2008-47 - Resolution of the Community Development
Commission of the City of San Bernardino approving the sale of certain real
property by the Redevelopment Agency of the City of San Bernardino
(" Agency") to Maya Cinemas North America, Inc. ("Developer"), and
authorizing the Interim Executive Director of the Agency to execute the
2008 Disposition and Development Agreement by and between the Agency
and the Developer (450 North "E" Street - APN: 0134-131-24, 25, 26, 27
and 28) (Central City North Redevelopment Project Area). (R25B)
Note: The Resolution for R25A was not distributed with the backup materials.
Mayor/Chairman Morris opened the hearing.
Emil Marzullo, Interim Executive Director of the Economic Development
Agency, stated that the Agency has been working on this particular project for
more than a year-that prior to his time with. the Agency, staff was working
with the CinemaStar Corporation and looking for a successor tenant to their
leasehold interest in the CinemaStar property, which the Agency currently
owns.
He advised that the process went on for about six or seven months with United
Entertainment Corporation from Minneapolis in that fIrst succession attempt. In
April, the Agency, through the Community Development Commission,
essentially turned down the offer and the deal points that they had on the table.
Staff subsequently put together a process with the Maya Entertainment Group to
look at the same project with the same conditions. At that time the CinemaStar
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12/15/2008
was still in business and it was still a lease assumption project that they were
working on. Subsequent to that, and during the time that they were under
negotiation, CinemaStar came to the Agency for an extension on their
forbearance agreement-the Agency had been reducing their rent by about 50
percent for the past 18 months. Staff brought that to the Commission and
recommended against that forbearance because they saw that as an impediment
to getting a deal done in a timely fashion. Subsequent to that denial of the
forbearance agreement, CinemaStar went out of business within days or weeks.
Mr. Marzullo advised that the Agency is now in a different deal with Maya,
having gone from a lease assumption deal to a property purchase deal. He
stated that the deal before the Council/Commission today was essentially a deal
to rebuild the entire cinema-to gut the infrastructure internally-the seating, the
concession stands, etc.-and bring back a state of the art theatre with new digital
equipment, new seating, new carpeting and tile-and also to bring in a large
format cinema with an IMAX Theatre component to that theatre.
Additionally, staff has asked in the DDA for work in the future to use the value
of that theatre to create other economic benefits within the neighborhood of the
downtown cinema and theatre district. Within three years they have asked that
buildings be constructed within the grass area out in front of the cinema
property and to begin a new retail entertainment complex.
Moctesuma Esparza, CEO, and Frank Garfar, President, Maya Cinemas,
made a PowerPoint presentation regarding previous cinema projects they have
completed in the cities of Salinas, CA and Bakersfield, CA, and their concepts
for the reopening and total renovation of the CinemaStar building.
Council Member/Commissioner Estrada clarified that this project had not been
recommended for approval at the Redevelopment Committee meeting as
indicated on the agenda-that the committee members made a decision to take it
to the full Council, but without the approval of the Redevelopment Committee.
She stated that her only reservation was the additional money the Agency has to
contribute to make this deal work. She asked how long it would take to make
the additional money available.
Agency Counsel Sabo advised that as far as the financing, whether it's an
assumption of the existing 108 Loan or a new 108 Loan in the $8 million plus
range, if they started this week with the application to HUD, they would lose
the rest of the year due to Christmas. He stated it would probably be a 60-day
process by HUD; therefore, he would not expect an answer from HUD with
documents for the City Council to approve until sometime in early March. That
would mean that they would then have one key piece of the funding; and Maya
would then have to put together the new money market tax credits, and there's
enough pieces of the financing for that. He stated that he thought they would be
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12/15/2008
able to open on a limited basis sometime in the first or second quarter of next
year, but to really have the financing in place, close of escrow, and everything
funded to do the full improvements, it's going to be at best the March time
frame.
Relative to the financing, Council Member/Commissioner Estrada stated that if
they are talking about March for the tax credit money to be available, what
about the money market tax credit money itself.
Mr. Esparza advised that the new market tax credits are committed; in fact, they
have prepaid for the right to that commitment, so they own those tax credits.
The only thing that they need is to have a matching loan that allows for the
leverages of the way that they are structured by the purchaser of the credits, but
the credits have already been purchased by U.S. Bank.
Mr. Esparza indicated that they are also prepared to immediately spend money
from their own pockets without waiting for the loan. So when they talk about
opening up the theatre for Phase I, they are going to do that on their own dollar.
He stated that they have provided a schedule to the City, and that once they have
the right to be able to spend money in the theatre, they are prepared to spend $1
million of their own money before the loan is fully committed and closed. This
would allow them to change the seats, put in the digital projectors, spiffy up and
make presentable that part of the theatre that they can renovate in that time
period so that at least part of the theatre is presentable and quality.
He stated that one of the things that they are concerned about is that when they
open the theatre again its got to look and feel different; it's got to be quality,
and it has to have enough pizzazz that people feel differently about it than they
did about the old version of the theatre. And they are prepared to spend that
million dollars to do that work out of their own pocket before the loan closes at
all-they are not going to wait. He stated that in this new proposal they are
proposing that they are going to invest in equity dollars, approximately $4
million. He noted that the Council/Commission has to vote on the proposal
before them today, and there will still be a negotiation of how that gets done and
that will still come back to them for approval.
He explained that basically what they are saying is that for every dollar the
City/Agency increases their loan beyond the existing loan, they are going to put
in $1 themselves. So, that's how they are approaching this, as partners in order
to transform downtown and in order to bring something to the residents that they
think is quality.
Council Member/Commissioner Kelley stated that he was deeply committed to
getting the theatre open again. He asked Mr. Esparza to share briefly what he
envisioned as part of his marketing plan to bring folks back to the theatre.
15
12/15/2008
Mr. Garfar stated that they hoped to do aggressive marketing, whether it is in
the newspaper, some promotions, working with the community, or working
with the schools. He stated that was why he would like to open it on a big
movie-a different movie-and that's why the last time he was here he had set a
goal of December 19, because a couple of new movies were set to open that
they could promote. Hopefully, they are now talking about February 27-Jonas
Brothers with 3-D-it would be promoted and there would be profits.
Council Member/Commissioner McCammack stated she was very impressed
when she first saw their proposal; and she was struck by something Mr. Esparza
said that she would never forget, and that was their commitment to build this
project without City funds. Therefore, she was having great difficulty in buying
into this. She stated that she understood how the market is right now relative to
borrowing capacity, but if the project is the right project, the
Council/Commission would be willing to talk to anybody about incentives or
assistance of some sort. Based on the document in front of them, she assumed
that after all is said and done in Phase I they will have invested approximately
$12 million.
Mr. Esparza stated it might be a little more.
Ms. McCammack asked Mr. Esparza what he thought the building with its
improvements would be worth after his investment of $13 million in Phase 1-
just the building.
Mr. Esparza stated that an operating building that has cash flow would then be
valued based on the cash flow and there would be a multiple applied to it-a
capitalization rate-and he believed that that value could quickly go over $20
million. He stated it would go up after it is operating, and that is a reflection of
what would be there when they open. He stated that the County would go
through its normal procedures and they would reassess them, and if they employ
the typical appraisal technology, it would be in that vicinity.
Ms, McCammack stated she was not worried about what they would pay in
taxes-she was worried that if they approved the loan, and for some reason
within the first three years the business wasn't there to support any additional
expenditures, and they had to walk for whatever reason, what would the
building be worth at that point in time.
Mr. Esparza stated that at a minimum it would be worth the $13 million that
they have invested in it.
Ms. McCammack pointed out that that was not the case now.
Mr. Esparza stated that was true, but they are talking about gutting the interior
and completely redoing it and putting in an island. There are both tangible and
16
12/15/2008
intangible values for that. Also, the contract for IMAX is an exclusive
agreement-somebody else cannot get it. The renovations and the design
features that they are going to bring to it are their talents and their
commitments. He stated he was having a hard time thinking about how it could
be worth less, since the theatre was grossing about $3.9 million last year from
ticket sales, about $5 million the year before that, and $6 million the year before
that-and that's not including concessions. In addition, there is no real
significant competition nearby.
He noted that going to the movies is a neighborhood driven kind of activity.
You don't want to drive more than 10 minutes, you want to know that there is
going to be easy parking, you want to know that the movie you want to see is
going to be playing when you want to see it, and you want to know that it is safe
and that it's comfortable, and that you don't have to think about anything except
that you want to see a movie. Ideally, you want to know that you can window
shop, have a coffee, an ice cream, or have dinner before or after. And you
want to do that by not having to drive more than 10 minutes. So, in this market
area, and he's talking behavior on a national level, you don't have a competing
theatre within 10 minutes. So what is needed here is a transformation of
perception, of attitude, of how people feel about it-because it was successful.
Council Member/Commissioner McCammack stated she had read the letter from
Wells Fargo regarding the take-out loan, and asked Mr. Esparza how soon they
provided the payoff after opening Salinas.
Mr. Esparza answered that it was done in about two and one-half years;
however, they didn't apply for it right away.
Ms. McCammack asked if he would compare the situation in downtown San
Bernardino to downtown Salinas.
Mr, Esparza replied that he thought Salinas was more depressed.
Relative to parking, Ms. McCammack pointed out that historically there have
been problems with parking at this theatre. She asked whether he had thought
about how he was going to address this issue, since part of the parking they
should be using if the theatre is full doesn't even belong to the theatre.
Mr. Esparza stated that those are conversations that they have been having with
staff and that they believe there is a solution.
Ms. McCammack asked if staff was prepared to help them get to that solution.
He answered that he believed they were-that they have been working
cooperatively and on that he was prepared to spend his company's money.
17
12/15/2008
Council Member/Commissioner Brinker stated that a lot of what Mr. Esparza
said tonight reaffirms things that he has seen and heard from other folks. He
stated that he was a middle school teacher, and his teachers union routinely
gives away tickets and movie passes to different movie theatres, and the one that
always had the bad rep was the one in our town here. As a City Councilman
here he would always stand up and say, hey, you know, it's safe, it's clean, it's
a good place to go-but you've got to overcome those perceptions, and he liked
what they were doing.
Relative to marketing plans, Mr. Brinker asked whether they would be talking
with the school districts and how the Council and staff could help with that,
because he thinks that is a key element to this-not just in terms of getting them
to come see the movies, but to help with the employment and get some of our
young people jobs. He stated that there is a group called Inland Communities
United for Change, and one of their key things is that these young people want
jobs.
Mr. Esparza stated that they would very much appreciate introductions and that
is part of their plan. They will, in fact, make the theatre available to the local
schools during the morning hours, if they have programs that require digital
projection or 35 millimeter projection for instructional purposes. They will
make those theatres available at cost-no markup, no profit. This is something
that they have done and continue to do. And yes, they will definitely hire
locally and train. He added that he is chairman of the board and founder of a
charter school and very committed to education, and they look forward to
working with all the educational institutions in the area,
Council Member/Commissioner Johnson thanked them for their patience, stating
that he liked the commitment they have shown throughout this process and the
quality of work they have done in the past is exemplary. He stated that one of
the things that excites him about it is the partnerships that they are willing to
form as far as working with our area for scholarships and giving back to the
community. He asked what numbers they would need on a daily basis going
through the turnstiles to break even.
Mr. Esparza answered that the numbers to achieve the dollar volume of last
year, would be better than break even. He stated he did not understand why the
theatre wasn't paying full rent and what was going on; but a $4 million box
office with the concessions on top of that, which would be about $6 million,
would be more than enough to pay for the debt service that they are talking
about.
City Attorney Penman noted that Mr. Esparza had mentioned that he worked
with Frank Dominguez, and inquired about some of the projects that they
worked on.
18
12/15/2008
Mr. Esparza stated that back in the . 80s he worked with Mr. Dominguez on the
Colton cable TV system; however, they had not worked together on any projects
in San Bernardino.
Mr. Penman inquired about what their marketing strategy would be.
Mr. Esparza explained that they will prepare printed materials that they will
circulate. They will prepare press releases that they will give to radio, print,
and television. They will go on radio and TV and give interviews. They will
buy advertising in the local newspapers. Depending on what they discover is
the best way to speak to the local community, they may do door hangers, they
may do a direct mail. They will actively communicate to the residents of the
trade area and let them know that it's going to be a brand new theatre, with new
amenities, and a new commitment to quality.
City Attorney Penman noted that they had said they believe there is a solution to
the parking problem. He asked if they could share anything about that.
Mr. Esparza replied that there are a number of parking structures in the area
that they will seek out and be able to sign agreements to allow for parking-not
just one, but quite a few. He stated that they are looking forward to working
with staff to be able to approach them and to figure out what is going to be the
most appropriate solution.
Bob Hull with the Law Offices of Lewitt Hackman, 16633 Ventura Blvd., 11th
Floor, Encino, CA, representing United Entertainment Corporation, reiterated
his comments that United Entertainment Corp. is ready, willing and able to
proceed with discussions and to make an offer on the property for significantly
more than the $4.6 million currently offered by Maya Cinemas. He stated that
all financing would be private, using no HUD loans; and that Mike Ross,
President of United Entertainment Corp. was available at any time for
discussion regarding this matter.
Gene Harvey, 1851 Midvale Drive, Pomona, CA, Gene Harvey Theatres,
stated that he had given the Mayor and Council his proposal a couple of weeks
ago. He stated that he owns and operates the only other theatre in San
Bernardino-the Sterling 6. He emphasized that he lives locally, that relative to
financing he was not talking about any HUD loan, but private money; and he
would like the opportunity to discuss his proposal with the Mayor and Council.
Council Member/Commissioner Estrada asked Agency Counsel Sabo to explain
where they were in the process.
Mr. Sabo advised that the Agency has had an Exclusive Right to Negotiate
(ERN) Agreement with Maya since October, and that has restricted them from
19
12/15/2008
accepting any other proposals or actively negotiating with any other party during
that period of time. He stated that they certainly have the obligation to respond
to public information requests, but to actually negotiate with someone, they did
not have liberty to do that. However, even under the Exclusive Right to
Negotiate Agreement there is no pre-commitment that this Commission would
approve a DDA, or on what terms a DDA would be approved-the ERN does
not take away the Commission's discretion to do whatever they want to do at a
public hearing.
Mr. Sabo stated that he needed to bring to the Commission's attention two other
instances over the past where there have been other parties who have attended
these hearings. Most of the time there is no one else who attends the public
hearing for the sale of property, but it is not uncommon for other parties to
come in and make an offer. So the Commission has the full discretion to accept
the Maya DDA, to modify it, or to reject it; and to direct whatever other
negotiations they would want. He stated there was nothing in the ERN that
commits them to proceed with Maya, even though that is the direction that they
have been going for the last several months.
Ms. Estrada asked whether at this point in time, they could legally close the
public hearing.
Mr. Sabo answered in the affirmative, unless there were any other comments.
Council Member/Commissioner Estrada made a motion, seconded by Council
Member/Commissioner Baxter, that the public hearing be closed; and that said
resolutions A and B, be adopted.
Council Member/Commissioner McCammack stated that she felt a little lacking
in information relative to the other two interested parties, and she didn't want to
discount anybody's desire to step before the Commission and offer more money
for City-owned property. She stated that the Commission would be
irresponsible if they didn't understand what the offers were, and from what she
was reading and from what she was hearing in terms of an investment, unless
the others were offering any other information at this point in time, this was all
the Commission had. They did have Mr. Hull's verbal and Mr. Harvey's
written proposal, but information was still lacking.
Agency Counsel Sabo advised that additional language needed to be added to the
DDA by interlineations to add clarification to the defmition of the HUD 108
loan on page 3, and it says" Any modification of the HUD 108 Loan, including,
but not limited to, an assumption of the existing HUD 108 Loan or the
undertaking of a new HUD Loan (as defined in Section 3.05), requires an
independent action of the City of San Bernardino. Conditions or covenants
appearing herein concerning actions to be taken by the Agency with respect to
the HUD 108 Loan and the New HUD Loan (as defined in Section 3.05) are in
20
12/15/2008
addition to and separate and apart from the actions of the City. The Developer
is hereby placed on notice that it shall not act in reliance on any representations
as may appear to be contained herein, or as made by any persons, whether or
not a party to this Agreement, concerning whether the City will initiate an action
for modification of the HUD 108 Loan or approval of a New HUD Loan (as
defined in Section 3.05) as to the outcome of such action as may be initiated."
He stated this was really a clarification stating what he had mentioned to the
Council/Commission in the past that this is a separate discretionary action on the
part of both HUD and the City Council.
Mr. Penman stated that that was the language Mr. Wilson and Mr. Sabo had
agreed on, which took care of the City Attorney's concerns.
Agency Counsel Sabo advised that the other change was the change of one word
on page 47, subparagraph C, the next to the last line, which says the "Agency
hereby agrees to use its best efforts to", and here they have eliminated the word
"cause" and inserted the word "request that", and it takes up with "City to
subordinate . . ."
Council Member/Commissioner Estrada amended the motion, seconded by
Council Member/Commissioner Baxter, that the hearing be closed; and that said
resolutions A and B, be adopted, with additional language added by
interlineations to the DDA to add clarification to the definition of HUD 108 loan
on page 3, and a change of one word on page 47, subparagraph C, next to the
last line, changing the word "cause" to the words "request that." The motion
carried and Mayor and Common Council Resolution No. 2008-460 and
Community Development Commission Resolution No. CDC/2008-47 were
adopted unanimously with the Fourth Ward vacant.
26. Public Comments
Joe Ortiz, 387 West 25m Street, San Bernardino, CA, stated that there is.a myth
in San Bernardino that crime is down and spoke in opposition to Operation
Phoenix and the Mayor.
Jay Lindberg, 6340 Orange Knoll, San Bernardino, CA, spoke regarding the
post oil economy that we are getting ready to enter and legitimate energy
supplies.
C. Patience Summers, 868 E. Rialto Avenue, San Bernardino, CA, spoke in
opposition to Operation Phoenix and Mayor Morris.
21
12/15/2008
Reverend Reginald Beamon, 1730 W. Gilbert Street, San Bernardino, CA,
stated he is a field representative for Congressman Joe Baca and invited all
constituents to Mr. Baca's annual Christmas party to be held at his office at 201
North "E" Street, from 5-9 p.m. on Wednesday, December 17. He asked
everyone who comes to bring a gift for a child. He announced that the 51"
Annual Kiwanis Basketball Tournament would be held December 26, 27, and
29, with the championship game on Tuesday night, December 30, at San
Gorgonio High School. He noted that Caltrans has removed San Bernardino
from its freeway signs and replaced it with Redlands, leaving San Bernardino
out altogether.
Charles Greenwood, thanked those who are supporting Los Padrinos and asked
that the City find other activities for these kids to do.
41. Adjournment
At 7:25 p.m. tbe meeting adjourned. The next Jomt regular meeting is
scheduled for 1:30 p.m., Monday, January 5,2009.
RACHEL G. CLARK
City Clerk
By: ~H~e~
Deputy City Clerk
22 12/15/2008
CITY OF SAN BERNARDINO
300 N. "D" Street
San Bernardino, CA 92418
Website: www.sbcity.org
Mayor Patrick J. Morris
CouncU Members:
Esther Estratkl
Dennis J. Baxter
Tobin Brinker
4' Ward - Vacant
CiuJs Kelley
Rikke Van Johnson
Wendy McCammtu:k
-
MINUTES
MAYOR AND COMMON COUNCIL AND
COMMUNITY DEVELOPMENT COMMISSION
OF THE CITY OF SAN BERNARDINO
JOINT REGULAR MEETING
JANUARY 5, 2009
COUNCIL CHAMBERS
The joint regular meeting of the Mayor and Conunon Council and Conununity
Development Conunission of the City of San Bernardino was called to order by
Mayor/Chairman Morris at 1:34 p.m., Monday, January 5, 2009, in the Council
Chambers of City Hall, 300 North "D" Street, San Bernardino, California.
Roll Call
Present:
Mayor/Chairman Morris; Council Members/Conunissioners Baxter,
Brinker, Kelley, Johnson, McCammack; City Attorney Penman, Interim
City Manager Weinberg, City Clerk Clark.
Absent:
Council Member/Conunissioner Estrada.
Vaeant:
Fourth Ward.
Council Member/Commissioner Estrada arrived at 1:53 p.m.
L Closed Session
Pursuant to Government Code Section(s):
A, Conference with legal counsel - existing litigation - pursuant to
Government Code Section 54956,9(a):
RDA v. Alvarez - San Bernardino County Superior Court Case No,
SCVS 086091;
1
01/05/2009
Janet Allen v. City of San Bernardino - San Bernardino County Superior
Court Case No. CIVSS 804451;
City of San Bernardino Municipal Water Department v. The United
States Department of the Army - U.S. District Court Case Nos. CV 96-
8867 & CV 96-5205;
Abdullah, Ghassan N. v. City, et aI. - San Bernardino County Superior
Court Case No. SCVSS 126706;
Adams, Deanna Helena Petrovna v. City, et aI. - San Bernardino County
Superior Court Case No. SCVSS 126708;
Allen, Jamora, et al. v. City, et al. - San Bernardino County Superior
Court Case No. CIVSS 805915;
Alvarez, Jaime, et al. v. City, et aI. - United States District Court Case
No. CV-00-03048 PA (Rex);
Alvarez, Jaime, et al. (RDA v.) - San Bernardino County Superior
Court Case No. SCVSS 086091;
Batey, Jane, et al. v. City, et al. - San Bernardino County Superior
Court Case No, SCVSS 141503;
County of San Bernardino (City v.) - Los Angeles Superior Court Case
No. KC49711 "1";
Desrochers, Michael, Lowes, Steve v. City, et al. - United States
District Court Case No. EV06-1408 V AP (JCRx);
Desrochers, Michael, Lowes, Steve v. City, et al. - San Bernardino
County Superior Court Case No. CIVSS 708367;
Flores, Emelio S., et aI. v. City of Highland, et aI' - San Bernardino
County Superior Court Case No. CIVSS 700464;
Glander, Maria v. City, et al. - Los Angeles Superior Court Case No.
BC324026;
Golding, Justin Ryan v. City, et aI. - San Bernardino County Superior
Court Case No. CIVSS 700791;
2
01/05/2009
Hearns, Kimberlyn v. City, et aI. - United States District Court Case
No. EDCV03-01434 RT (SGLx);
Hearns, Kimberlyn v. City, et ai, - United States District Court Case
No. CV05-04524 GHK (RZX);
Jackson, Dennis, et aI. v. City, et al. - San Bernardino County Superior
Court Case No. CIVSS 800797;
Lopez, Jose Luis, Jr., et al. dba The Club (Poo. y.) - San Bernardino
County Superior Court Case No. SCVSS 134051;
Manta Manal(ement Corp. (poo. y.) #1 - San Bernardino County
Superior Court Case No. SCV 18157;
Manta Manal(ement Corp. (Poo. y.) #2 - San Bernardino County
Superior Court Case No. SCVSS 117285;
Maravilla, Luisa v. Deanna Marie Crosby, et aI. - San Bernardino
County Superior Court Case No. CIVSS 707097;
Montez, Rodolfo v. City of San Bernardino Municipal Water Dept., et
aI. - San Bernardino County Superior Court Case No. CIVSS 701871;
Moore, Adrian EUl(ene v. City, et aI. - United States Court Case No.
CVOI-03064 DDP (RZ);
Osias, Daniel, an ind., et al. (City y.) - San Bernardino County Superior
Court Case No. SCVSS 140090;
Pilcher, Est. Of Roy A., et al. (City y.) - San Bernardino County
Superior Court Case No. SCVSS 144328;
Redden, Deryl v. City, et aI. - San Bernardino County Superior Court
Case No. SCVSS 144245;
Romero, Mil(llel, et aI. v. City, et aI. - San Bernardino County Superior
Court Case No. CIVSS 703673;
San Bernardino City Professional Firefildlters, LocaI 891 v. City, et aI. -
San Bernardino County Superior Court Case No. CIVSS 807685;
Soderbloom, Don v. City, et al. - DLSE State Case No. 4962;
3
01/05/2009
State of California ex reI. Nora Armenta v. James Jones, Co. - Los
Angeles Superior Court Case No. BC173487;
Wan~, H. Ro~er, et al. v. Wal-Mart Real Estate Business Trust, et al. -
San Bernardino County Superior Court Case No. SCVSS 129158;
Watson, Zakyia, et al. v. City, et al. - San Bernardino County Superior
Court Case No. CIVSS 807970;
Weisenber~er, Timothy, et al. v. State of California, et al. - San
Bernardino County Superior Court Case No. SCVSS 134901;
Zimmon, Garrett-Ind. Disability Ret. Application - OAH#2007080890.
B. Conference with legal counsel - anticipated litigation - significant
exposure to litigation - pursuant to subdivision (b) (1), (2), (3) (A-F) of
Government Code Section 54956.9:
Inland Communities Corp. v. City of San Bernardino (Paradise Hills)
California Aviation ~ervices, Inc. v. City of San Bernardino
C. Conference with legal counsel - anticipated litigation - initiation of
litigation - pursuant to subdivision (c) of Government Code Section
54956.9:
City of San Bernardino v. California State University
D. Closed Session - personnel - pursuant to Government Code Section
54957.
E. Closed session with Chief of Police on matters posing a threat to the
security of public buildings or threat to the public's right of access to
public services or public facilities - pursuant to Government Code
Section 54957.
F. Conference with labor negotiator - pursuant to Government Code
Section 54957.6:
General Unit
Mid-Management Unit
Management/Confidential
G. Conference with real property negotiator - pursuant to Government Code
Section 54956.8.
4
01/05/2009
City Attorney Penman announced that the following additional cases would be
discussed in closed session:
Under Agenda Item lA, Existing Litigation:
Richard "Scott" Moss, et al. v. City of San Bernardino, et al. - United
States District Court Case No. EDCV 07-01027 SGL (OPX);
In Re Civil Service Appeal of Steve Lowes.
Under Agenda Item lB, Significant Exposure to Litigation:
2158 McKinley/Martin Luther King Middle School;
Agenda Item No. 11.
Following closed session, City Attorney Penman announced that Fire and Police
labor units were included in the discussion under Agenda Item IF, Conference
with Labor Negotiator.
Reading of Resolutions & Ordinances
Deputy City Clerk Hartzel read into the record the titles of all the resolutions and
ordinances on the regular agenda of the Mayor and Common Council and Community
Development Commission.
Moment of Silence
Mayor Morris extended condolences to the family and requested a moment of silence in
memory of Monsignor Adolfo Chavez.
Invocation/Pledge of Allegiance
The invocation was given by Councilwoman Wendy McCammack. The pledge of
allegiance was led by Madison Tibke, a student at Anderson School.
2. Appointment - Wayne Hendrix - Board of Water Commissioners - Mayor
Morris
Council Member/Commissioner McCammack made a motion, seconded by
Council Member/Commissioner Baxter, that the appointment of Wayne Hendrix
to the Board of Water Commissioners, as requested by Mayor Morris, be
approved. The motion carried unanimously with the Fourth Ward vacant.
5
01/05/2009
3. Proclamations & Presentations
Mayor Morris presented a resolution of commendation to Aurora Mendoza, who
recently retired after devoting 40 years of dedicated service to the City Library.
Council Member/Commissioner Johnson presented certificates of recognition to
each member of the Hawks Football Team, who recently completed a season
where they were the San Bernardino City Champs, the Division Champs, the
Conference Champs, and the Mega-Bowl Champs, finishing the season with a
12-0 record and 8 shutouts.
4. Announcements
Announcements were made by the Mayor, members of the Common Council,
elected officials, and a representative from the Chamber of Commerce regarding
various civic, community, and chamber events and activities.
5. Waive Full Reading of Resolutions & Ordinances
Council Member/Commissioner Baxter made a motion, seconded by Council
Member/Commissioner Johnson, that full reading of the resolutions and
ordinances on the regular agenda of the Mayor and Common Council and
Community Development Commission, be waived. The motion carried
unanimously with the Fourth Ward vacant.
6. Council Minutes
Council Member/Commissioner Baxter made a motion, seconded by Council
Member/Commissioner Johnson, that the minutes of the following meeting(s) of
the Mayor and Common Council/Community Development Commission of the
City of San Bernardino be approved as submitted in typewritten form:
November 17, 2008, and November 25, 2008. The motion carried
unanimously with the Fourth Ward vacant.
7. Claims & Payroll
Council Member/Commissioner Baxter made a motion, seconded by Council
Member/Commissioner Johnson, that the claims and payroll and the
authorization to issue warrants as listed in the memorandum dated December 18,
2008, from Barbara Pachon, Director of Finance, be approved. The motion
carried unanimously with the Fourth Ward vacant.
6
01105/2009
8. Personnel Actions
Council Member/Commissioner Baxter made a motion, seconded by Council
Member/Commissioner Johnson, that the personnel actions, as submitted by the
Chief Examiner, dated December 19, 2008, in accordance with Civil Service
rules and Personnel policies adopted by the Mayor and Common Council of the
City of San Bernardino, be approved and ratified. The motion carried
unanimously with the Fourth Ward vacant.
9. Determination of Public Convenience or Necessity for a Type 20 Alcoholic
Beverage Control (ABC) license (Off-sale Beer & Wine) for the Union 76
service station located at 1950 South Waterman Avenue
Council Member/Commissioner Baxter made a motion, seconded by Council
Member/Commissioner Johnson, that the Mayor and Common Council
determine that the public convenience or necessity is served by the proposed
license; and direct the Development Services Department to send a letter to the
Department of Alcoholic Beverage Control to support issuance of a Type 20
ABC license for the Union 76 service station located at 1950 South Waterman
Avenue. The motion carried unanimously with the Fourth Ward vacant.
10. Item deleted
11. Ratification of the City Manager's Freeze on Hiring, Travel and Training
for Manager-Directed Departments
Council Member/Commissioner Baxter made a motion, seconded by Council
Member/Commissioner Brinker, that the matter be tabled.
Council Member/Commissioner Baxter and Council Member/Commissioner
Brinker withdrew their motion to facilitate discussion.
A prolonged discussion ensued regarding interpretation of the language in the
City Charter relative to the duties and powers attributed to the City Manager
versus the duties and powers attributed to the Common Council; and more
specifically, whether the City Manager had the authority to place a freeze on
hiring, travel, and training for manager-directed departments, or whether this
decision was important enough to require a vote of the Council.
C. Patience Summers, 868 E. Rialto Avenue, San Bernardino, CA, stated that
insofar as safety personnel are concerned, no one has the right to issue a hiring
freeze order.
7
01/05/2009
Council Member/Commissioner Baxter made a motion, seconded by Council
Member/Commissioner Brinker, that the matter be tabled. The motion
carried, Ayes: Baxter, Brinker, Kelley, Johnson. Nays: Estrada,
McCammack. Vacant: Fourth Ward.
Council Members/Commissioners Estrada and McCammack requested that the
City Manager let the Council know exactly what this hiring freeze means and
requested a memorandum explicitly explaining the positions affected by the
freeze, the departments, and the total amount of dollar savings,
12. Council ComDiittee Assignments
The following committee assignments were recommended by Mayor Pro Tem
Johnson:
Council ComDiittees - Regular Meetings
Legislative Review Committee
Personnel Committee
Redevelopment Committee
Ways & Means Committee
Brinker, Ch., Johnson, McCammack
Estrada, Ch., Kelley, McCammack
Johnson, Ch., Baxter, Brinker
Kelley, Ch., Baxter, Brinker
Council ComDiittees - At Call of Chairman
California Theatre Ad Hoc Committee Mayor, Estrada
COBG Funding Review Ad Hoc Committee Estrada. Ch., Baxter
Grants Ad Hoc Committee Baxter, Ch" Estrada, Johnson
Fire Equipment Ad Hoc Committee McCammack, Ch" Kelley
Police Ad Hoc Committee Johnson, Ch., Kelley, McCammack
Council Member/Commissioner Brinker made a motion, seconded by Council
Member/Commissioner Baxter, that the Council Committee Assignments
recommended by Mayor Pro Tern Johnson, be approved. The motion carried.
Ayes: Baxter, Brinker, Kelley, Johnson. Nays: Estrada, McCammack.
Vacant: Fourth Ward.
13. Transfer $200,000 from the Reserved General Fund to the City Attorney's
budget as follows: $164,000 to Account No. 001-051-5503 and $36,000 to
Account No. 001-051-5177 (Continued from December 15, 2008)
Council Member/Commissioner Johnson made a motion, seconded by Council
Member/Commissioner Baxter, that the Director of Finance be authorized and
directed to amend the FY 2008/2009 budget and appropriate $200,000 from the
Reserved General Fund to the City Attorney's budget as follows: $164,000 to
Account No. 001-051-5503 (Litigation - Outside Attorneys) and $36,000 to
Account No. 001-051-5177 (Litigation - Expense). The motion carried
unanimously with the Fourth Ward vacant.
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14. National League of Cities Congress of Cities and Exposition Update -
Council Member Ketley (Continued from December 15, 2008)
Council Member/Commissioner Kelley provided an overview of some of the
programs he attended and the three mobile tours he participated in, which were
provided by the city of Orlando, Florida.
Council Member/Commissioner Kelley made a motion, seconded by Council
Member/Commissioner Baxter, that the Mayor and Common Council receive
and file the National League of Cities Congress of Cities and Exposition
Update. The motion carried unanimously with the Fourth Ward vacant.
COMMUNITY DEVELOPMENT COMMISSION
Present:
Mayor/Chairman Morris; Council Members/Commissioners Estrada,
Baxter, Brinker, Kelley, Johnson, McCammack; Assistant City Attorney
Wilson, Economic Development Agency Interim Executive Director
Marzullo and Agency Counsel Sabo, City Clerk Clark.
Absent:
None.
Vacant:
Fourth Ward
R15. EDAW, Inc. - Presentation on the Open House Update on the San
Bernardino Downtown Core Vision/Action Plan (Central City North
Redevelopment Project Area)
Vaughn Davies of EDA W made a PowerPoint presentation regarding the San
Bernardino Downtown Vision Plan and distributed hard copies of the
PowerPoint materials to the Council and City officials.
John Fransen, a retail strategist who has joined with EDA W on this project,
made a brief oral presentation, stating that the role of his company is to be
supportive. He talked about the importance of retail to the project, but also
cautioned that the retail has to be paced appropriately.
Warner Hodgdon, 405 Arrowhead Road, San Bernardino, CA, stated that
Vaughn and his team have done a lot of work, and up to this point he thinks it
has all been worthwhile.
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01/05/2009
Council Member/Commissioner Johnson made a motion, seconded by Council
Member/Commissioner Baxter, that the Community Development Commission
of the City of San Bernardino receive and file the PowerPoint Presentation!
Report by EDA W, Inc. The motion carried unanimously with the Fourth
Ward vacant.
R16. Bryan A. Stirrat & Associates - Professional Services Agreement
RES. CDC/2009-1 - Resolution of the Community Development Commission
of the City of San Bernardino approving and authorizing the Interim
Executive Director of the Redevelopment Agency of the City of San
Bernardino ("Agency") to execute a Professional Services Agreement by
and between the Agency and Bryan A. Stirrat & Associates for Brownfields
inventory and prioritization/selection criteria for sites to receive future
enviroll,lllental evaluation (the area bounded by Ninth Street to Mill Street
and Pepper Street to Tippecanoe Avenue).
Council Member/Commissioner Estrada expressed concern that the scope of
work was not defInitive. She also asked to see the grant application that was
used to obtain the grant.
Council Member/Commissioner McCamrnack stated that from her
understanding of EPA, once the City/Agency identifIes for them something that
needs remediation, the City/Agency is then mandated to enforce the remedial
work. She expressed concern that at some time in the past the City may have
approved some projects that at the time did not require the environmental studies
that they would today, and that the City will be on the hook for some of these
remediation efforts. She stated that although there are federal funds available
for this work, in some cases there aren't enough funds.
Council Member/Commissioner Estrada stated that she would be abstaining on
the basis that at this time she did not have enough information. '
Council Member/Commissioner Kelley made a motion, .seconded by Council
Member/Commissioner Baxter, that said resolution be adopted. Resolution No.
CDC/2009-1 was adopted. Ayes: Baxter, Brinker, Kelley, Johnson. Nays:
McCammack. Abstentious: Estrada. Vacant: Fourth Ward.
R17. Assistance League of San Bernardino - Amendment No. 3 to the
Maintenance and Operation Contract (Central City North Redevelopment
Project Area)
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01/05/2009
RES. CDC/2009-2 - Resolution of the Community Development Commission
of the City of San Bernardino approving and authorizing the Interim
Executive Director of the Redevelopment Agency of the City of San
Bernardino ("Agency") to execute Amendment No. 3 to the Maintenance
and Operation Contract by and between the Agency and the Assistance
League of San Bernardino (580 West ~ Street, San Bernardino - (Central
City North Redevelopment Project Area).
Council Member/Commissioner McCammack abstained because she serves on
the Board of the Assistance League.
Council Member/Commissioner Estrada made a motion, seconded by Council
Member/Commissioner Baxter, that said resolution be adopted. Resolution No.
CDC/2009-2 was adopted. Ayes: Estrada, Baxter, Brinker, Kelley,
Johnson. Nays: None. Abstentions: McCammack. Vacant: Fourth
Ward.
R18. Holiday Inn Project at Orange Show Road and South "E" Street -
Redevelopment Cooperation Agreement with the Inland Valley Development
Agency (lVDA Redevelopment Project Area)
RES. CDC/2009-3 - Resolution of the Community Development Commission
of the City of San Bernardino approving and authorizing the Interim
Executive Director of the Redevelopment Agency of the City of San
Bernardino ("Agency") to execute an agreement by and between the Agency
and the Inland Valley Development Agency ("IVDA") to transfer authority
to the Agency as to certain property proposed for development by BLBT
Enterprises, LLC ("Developer"), at Orange Show Road and South "E"
Street.
Council Member/Commissioner Brinker made a motion, seconded by Council
Member/Commissioner Baxter, that said resolution be adopted. Resolution No.
CDC/2009-3 was adopted unanimously with the Fourth Ward vacant.
R19. Cooperative Agreement among the Redevelopment Agency, the Inland
Valley Development Agency, the County of San Bernardino and the City of
San Bernardino for the acquisition, development and rehabilitation of
properties located in the 3rd Street Corridor between Waterman Avenue and
Tippecanoe in the unincorporated portion of San Bernardino (lVDA
Redevelopment Project Area)
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01/05/2009
Council Member/Commissioner Baxter made a motion, seconded by Council
Member/Commissioner Brinker, that the Mayor and Common Council of the
City of San Bernardino approve in concept a Cooperative Agreement by and
among the Redevelopment Agency of the City of San Bernardino ("Agency"),
the Inland Valley Development Agency ("IVDA "), the County of San
Bernardino and the City of San Bernardino for the acquisition, development and
rehabilitation of properties in the 3'" Street Corridor between Waterman Avenue
and Tippecanoe A venue in the unincorporated portion of the County of San
Bernardino. The motion carried unanimously with the Fourth Ward vacant.
City Attorney Penman advised that the recommended Motion B on the agenda
needed the word "concept" added in order to read, ". . . approve in concept a
Cooperative Agreement . . ."
Council Member/Commissioner Baxter made a motion, seconded by Council
Member/Commissioner Brinker, that the Community Development Commission
of the City of San Bernardino approve in concept a Cooperative Agreement by
and among the Redevelopment Agency of the City of San Bernardino
(" Agency"), the Inland Valley Development Agency ("IVDA"), the County of
San Bernardino and the City of San Bernardino for the acquisition, development
and rehabilitation of properties in the 3'" Street Corridor between Waterman
A venue and Tippecanoe A venue in the unincorporated portion of the County of
San Bernardino. The motion carried unanimously with the Fourth Ward
vacant.
20. Public hearing - Impasse on San Bernardino Fire Department use of a 24-
day work period under the Fair Labor Standards Act pursuant to
Resolution No. 10584, Section 13
Note: Special Counsel James Odium replaced City Attorney Penman at the
dais.
Mayor/Chairman Morris opened the hearing.
Pursuant to Resolution No. 2000-279, City Clerk Clark administered an oath to
Attorney Corey Glave that he would provide true and honest testimony.
Attorney Corey Glave, attending the hearing on behalf of the San Bernardino
City Professional Firefighters Union, stated that as the City was aware, they had
been litigating FLSA violations; and the City had now come and admitted to a
number of violations and the court had issued a summary judgment against the
City.
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01105/2009
Mr. Glave stated that Mr. OdIum and the Fire Department would like to change
the work period from either what the Union contends is a 7-<lay work period, or
what the City contends is a 28-day work period (the City contends they have a
28-<lay work period, that it has been that way for 20 years, and now they would
like to change it to a 24-<lay work period).
He stated that contained in the Council backup materials there is a remark by
Linn Livingston, Director of Human Resources, that this is a meet and confer
item under Government Code Section 30500 et seq. He advised that the Union
has a binding MOU in place, and that no changes to an MOU can be made, or
should be made, without the consent of the Union. They also have a prevailing
benefits clause, and no prevailing benefits can be changed without consent of the
Union.
Attorney Glave stated that in this action Mr. OdIum has indicated that the City
wants to meet with the Union, and they have offered to meet with the City with
the condition that the City signs an agreement that says these discussions are
informal and do not constitute meet and confer under the Meyers Milias Brown
Act. He stated this agreement is the same agreement that the City has entered
into on two previous occasions at least, including one in June that Mr. Penman
signed on behalf of the City when they met with the then City Manager and
representatives of the City.
Additionally, the Union had filed a lawsuit to seek an injunction to prevent the
City from re-opening the contract (the MOU) to force or impose changes.
Based on the legal opinion provided to the City Council from Mr. Penman,
along with his statements to the Union and his signing the agreement, that
portion of the lawsuit was dismissed.
Mr. Glave stated that the City now has a recommendation before the City
Council to impose changes, and they have tried to do it through what is called
impasse procedures. However, the impasse procedures through the
employee/employer relationship resolution do not govern this behavior. That
resolution only goes to formal meet and confer contract negotiations. It's after
the contract expires that the parties meet and confer in good faith, and they try
to come to a resolution. When they cannot, one party can declare impasse and
they usually go to mediation and then those changes can be imposed.
Mr. Glave advised that because they have a binding MOU, those changes cannot
be imposed at this time. The City would be violating the MOU and the
provisions contained therein to impose changes. Additionally, the impasse
procedure hasn't been properly followed, even if they were to do it. The
impasse procedure has specific requirements, and those requirements have not
been met, including an impasse letter setting forth positions. He stated that the
City sent a letter saying they did not have to set forth their positions anymore-
that they have already done that in other letters.
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Mr. Glave stated that additionally, the City unilaterally scheduled an impasse
meeting for December 18, and they indicate in the agenda package that the
Union did not show up; and in fact, the Union did not. In a document that has
not been presented as part of the packet, the Union informed the City, based on
his schedule during the holiday season, that he was not available until December
30. The City went ahead and had their meeting without them. They now come
to the Council saying, we've tried to meet with them, we're at impasse, they
didn't show for the impasse meeting, impose.
Mr. Glave asked that staff's recommendation be rejected, that the City's
negotiator be directed to meet with the Union informally, and that Mr. Penman
sign the same agreement that he agreed to before.
Special Counsel James Odium stated he would like to respond to a couple of
points Mr. Glave made. Mr. Glave indicated that with the existence of the
current binding MOU, the City cannot make any changes to the existing 28-day
work period and cannot go to a 24-day work period. However, the rule is that
if you have an MOU which sets forth a specific term; for example, how much a
person is going to be paid, then yes, the Union is not required to negotiate about
that because the contract governs it. The MOU that is in existence currently
says nothing about the 28-day work period and it says nothing about a 24-day
work period. So, in that sense, the terms of the existing MOU are not being
changed.
Mr, Odium advised that the system the City has been using to pay overtime to
its firemen, although it does use a 28-day work period, it doesn't do it
correctly-it doesn't calculate the overtime within that 28-day work period
correctly. It is the City's position that other sections of the MOU, which the
Union is relying on, which is called a prevailing benefits clause, does not cover
this situation either. The incorrect method that the City has been using to pay
the firemen cannot reasonably be considered a benefit, a privilege, or a working
condition that we are duty bound to maintain. We have to bring our system into
compliance with the Fair Labor Standards Act (FLSA), and nothing in the MOU
prevents us from doing that. He stated that he believed the staff report
explained why it is incumbent and necessary to go to a 24-day work period.
He stated that he thought that the materials that have been submitted to the
Council do layout the City's attempts to bring the Union to the bargaining table
to talk about it. He stated that the Union refused to do that unless we signed
what he believes is an unreasonable agreement. They want us to agree that 1)
these are not meet and confer, when we believe they have a duty to meet and
confer; and 2) the Union wants us to sign something saying that we will not
change anything unless they agree to it; and we can't go into negotiations giving
them basically the unilateral veto power over what we do after we meet and
confer. For those reasons what they have submitted to the City as a
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01105/2009
precondition of meeting, in his view, is unreasonable. He asked the Common
Council to adopt the motion directing implementation of the 24-day work period
forthwith.
Council Member/Commissioner Kelley asked Mr. Odium if the Union sent a
letter saying that they weren't available on the 18'" of December-did the City of
San Bernardino, or his office receive a letter saying they were unavailable to
meet in any capacity, whether it was a meet and confer or whatever the case
was-did anyone receive a letter from the attorney representing 891.
Mr. Odium answered "yes," but stated that it was done after the December 18
meeting. It was noted that this particular piece of correspondence had not been
included in the backup materials.
Council Member/Commissioner Estrada asked Mr. Odium what, in his legal
opinion, supersedes here-the agreement, the meet and confer issue, or the
FLSA.
Mr. Odium replied that ultimately the FLSA is a federal statute to preempt state
law to the extent state law is inconsistent, so we start off by saying we have to
bring our procedures into compliance with the FLSA. The FLSA does not
speak to the issue of the relationship and the meet and confer duty we have with
the Union-that's an issue of state law. So, the FLSA says you need to fix this;
State law says, in doing so you probably have an obligation to at least offer to
meet and confer with the Union before you make this particular change; and the
Union has taken the position of the lawsuit that Mr. Glave alluded to.
Council Member/Commissioner Estrada stated that the key seemed to be in
interpretation-that we probably have a responsibility to meet and confer.
Mr. Odium stated that was his view and he has erred on the side of caution in
advising the City, since we probably have a duty to meet and confer on the 24-
day work period issue; and also to try to promote, to the extent we can, better
relations with the Union.
Council Member/Commissioner Brinker made a motion, seconded by Council
Member/Commissioner Johnson, that the hearing be closed; and that the 24-day
work period for City firefighters be implemented forthwith. The motion
resulted in a tie by the following vote: Ayes: Baxter, Brinker, Johnson.
Nays: Estrada, Kelley, McCammack.
Mayor/Chairman Morris broke the tie with a "yes" vote, and the motion
carried.
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01/05/2009
Subsequently, later in the meeting, Mr. OdIum addressed the Council, stating
that he had misspoken during the hearing, that in fact, Mr. Glave's letter stating
he was not available until December 30 was sent to him prior to the meeting on
December 18. He entered into the record the e-mail correspondence between
himself and Mr. Glave dated December 15. He stated that notwithstanding the
error he made before, he still believes there is an impasse, and that the impasse
procedure has been followed because the Union would not meet without the City
agreeing to conditions that he believes are unreasonable. Also, his
interpretation of what Mr. Glave had said to him in the e-mail was that the City
should talk about scheduling the mediation on a date different than December
18, and he wrote back to him the same day saying that they were not talking
about the mediation-they were talking about the impasse meeting, which is
something different than the mediation. He stated he never heard back from
Mr. Glave in response to this e-mail before December 18. So, he believed Mr.
Glave was talking about the mediation, not the impasse meeting.
21. Public Comments
Rafig Bey, deputized spokesman for Reverend Yong Boom Lee, pastor of the
Well Mission Church at 1298 North "D" Street, submitted into the record and
orally summarized a letter from Reverend Lee to the City Council, notifying
them". . . of this Motion for Consideration of the Applicant's Request for
Waiver of Fees as it relates to Developmental Permit-Type 1 & 2 required by
the City's Planning Department." Attached to the letter was a Memorandum of
Facts. Following a short discussion between Mr. Bey, the Mayor, members of
the Common Council, and the City Attorney, Mayor/Chairman Morris asked
Mark Weinberg, Interim City Manager, to review the matter and advise
Reverend Lee of what he needs to do. Council Member/Commissioner Baxter
asked to be kept in the loop since the church is in his ward.
Betty Jean Long, 854 N. Lugo Avenue, San Bernardino, CA, spoke regarding
where she lives, stating that people in the neighborhood owe her money.
Joseph Lujan, 1153 17th Street, San Bernardino, CA, thanked the City for
working with Los Padrinos, but questioned the decision of some of the Council
members not to use the services of Los Padrinos any longer.
C. Patience Summers, 868 E. Rialto Avenue, San Bernardino, CA, accused
Council Member Kelley of wrongdoing and conspiring against Los Padrinos.
Mr. Kelley refuted the comments made by Ms. Summers.
John Barbush, Sr. Vice President of Marketing & Development, American
Sports University, spoke regarding plans the university has to solve a plethora
of problems in the downtown area by creating a Sports A venue of the Stars and
turning the area into a tourist attraction.
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01105/2009
Hannah Hwang, Executive Director of Special Projects, American Sports
University, described the university's endeavor in more detail, stating that the
proposed project will be the fIrst of its kind and will celebrate athletes
internationally. She advised that they do not need City funding, but they do
need the Council's support.
22. Adjournment
At 8:31 p.m. the meeting adjourned. The next joint regular meeting is
scheduled for 1:30 p.m., Tuesday, January 20,2009.
RACHEL G. CLARK
City Clerk
BY:UC~
Linda E. Hartzel
Deputy City Clerk
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