HomeMy WebLinkAbout07.D- Community Development
7.0
RESOLUTION (ID # 1492)
DOC ID: 1492 A
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
Public Hearing
From: Margo Wheeler
MlCC Meeting Date: 01109/2012
Prepared by: Shirley Robinson, (909) 384-
5057
Dept: Community Development
Ward(s): I
Subject:
A Resolution of the City of San Bernardino Approving Development Agreement No. 11-02
Between the City of San Bernardino and Regal Cinemas, Inc. at the Project Site Located at 450
North "E" Street (DA No. 11-02).
Financial Impact:
Increased property tax and sales tax of an undetermined amount to accrue to the City.
Mayor to open the hearing. . .
Motion:
Close hearing and adopt Resolution approving Development Agreement No. 11-
02.
In the event that the Mayor and Common Council should not adopt the Resolution
approving Development Agreement No. 11-02, a separate Ordinance has been
prepared to allow Development Agreement No. 11-02 and Development Code
Amendment No. II-II for adoption concurrently. Please reference Document ID
Number: 1470.
Svnopsis of Previous Council Action:
None
Owner/Applicant:
San Bernardino Economic Development Corp.
201 North "E" Street, Ste. 301
San Bernardino, CA 9240 I
Representative:
Lewis Brisbois Bisgaard & Smith LLC
650 East Hospitality Lane, Suite 600
San Bernardino, CA 92408
Backe:round:
On December 14, 2011, the Planning Commission recommended approval of Development
Agreement (DA) No. 11-02 and that the Mayor and Common Council adopt an ordinance
approving Development Agreement (DA) No. 11-02 and Development Code Amendment No.
II-II concurrently. The subject site is a former 20-screen theater complex located at 450 North
"E" Street in the CR-2, Commercial Regional-Downtown land use district.
The proposed agreement will grant Regal Cinemas Inc. the vested right to develop and modifY
the former 20-screen theater complex into a 14-screen theater complex at the subject site
Updated: 1/5/2012 by Andrea Travis-Miller A
I.~ Packet Pg: 408 I
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pursuant to the parameters established in the Development Agreement. The Development
Agreement will establish the terms under which development will occur and ensure that
development on the subject site will be consistent and compatible through the implementation of
a comprehensive development plan. A more detailed description and analysis of the proposed
agreement is attached in the December 14, 20 11, Planning Commission Staff Report (Exhibit 1).
Planning Commission Recommendation:
After a lengthy discussion, the Planning Commission recommended approval of DA No. 11-02
and that the Mayor and Common Council adopt an Ordinance approving DA No. 11-02 and
Development Code Agreement No. II-II concurrently on a vote of 7 - 2 at their meeting of
December 14,2011. Comm;ss;onecs Eble, Coute, Durr, Heasley, Machen, Mulvihill and Rawls
voted in support of the motion and Commissioners Lopez and Jimenez voted against the motion.
The minutes of the Planning Commission Hearing December 14, 2011, are attached as Exhibit 2
for reference and are available from the City Clerk's office on CD for review.
California Environmental Quality Act (CEQA) Compliance:
Environmental Impact Report (SCH #2009111089) which fully analyzed all potential impacts
related to approval of the Redevelopment Project Area Merged Area A, which including
development of a downtown theater district and development of restaurant and retail pads in
compliance with CEQA requirements and Section 19.20.030 (6) of the Development Code was
certified by the Community Development Commission on December 20, 20 I O. Findings of Fact
and a Statement of Overriding Considerations were adopted in accordance with guidelines for
the implementation of CEQA as part of the EIR. The proposed development project which is the
subject of the development agreement is consistent with the Redevelopment Project Area
Merged Area A and the total buildable area described in the subject agreement area had been
previously analyzed as part of the E1R (SCH #2009111089). No additional building square
footage is proposed by the development agreement. No new environmental review is required.
EIR (SCH #2009111089) Section 2.1 Authority states: "This EIR has been prepared as a
Program EIR in accordance with CEQA Guidelines Section 15168, Which states the following:
A Program EIR may be prepared on a series of actions that can be characterized as one large
Project and are related either: (1) Geographically, (2) As logical parts in the chain of
contemplated actions, (3) In connection with issuance of rules, regulations, plans, or other
general criteria to govern the conduct of a continuing program, or (4) As individual activities
carried out under the same authorizing statutory or regulatory authority and having generally
similar environmental effects which can be mitigated in similar ways.
The Program EIR can provide the following advantages: (l) Provide an occasion for a more
exhaustive consideration of effects and alternative than would be practical in an ErR on an
individual action, (2) Ensure consideration of cumulative impacts that might be slighted in a
case-by-case analysis, (3) Avoid duplicative reconsideration of basic policy considerations, (4)
Allow the Lead Agency to consider broad policy alternatives and program-wide migration
measures at an early time when the agency has greater flexibility to deal with basic programs or
cumulative impacts, and (5) Allow reduction in paperwork.
Additionally, Section 15168 (c) (2) states: "if the agency finds that pursuant to Section 15162, no
Updated: 1/5/2012 by Andrea Travis-Miller A
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new effects could occur or no new mitigation measures would be required, the agency can
approve the activity as being within the scope of the project covered by the Program EIR, and no
new environmental document would be required." The proposed agreement allows for the re-
tenanting of a vacant theater complex on a commercial property in need of revitalization and
rehabilitation. No new square footage will be added to the existing 80,000 sq. ft. theater building.
The environmental documents for EIR (SCH #2009111089) and Mitigated Negative Declaration
(MND) for CUP No. 97-01 are available online at www.sbcitv.org <htto://www.sbcitv.org>.
Additionally, the disc containing the full recording of the December 14, 2011, Planning
Commission meeting is available to be picked up at the City Clerk's office or in the Community
Development Department for review.
Recommendation:
That the hearing be closed and that said resolution be adopted.
In the event that the Mayor and Common Council should not adopt the Resolution approving
Development Agreement No. 11-02, a separate Ordinance has been prepared to allow
Development Agreement No. 11-02 and Development Code Amendment No. II-II for adoption
concurrently. Please reference Document ID Number: 1470.
Attachments:
Exhibit I: 12/14/11 Planning Commission Staff Report with all attachments:
Relevant Sections of the EIR (SCH #2009111089) distributed 12/14/11 (full
content on-line; see above)
Mitigated Negative Declaration for CUP No. 97-01 distributed 12/14/11 (full
disc available; see above)
Draft Minutes of the Planning Commission Hearing December 14, 2011
Development Agreement (4827-3676-5710.1)
Resolution approving DA No. 11-02
Exhibit 2:
Exhibit 3:
Exhibit 4:
City Attorney Review:
Supportinl! Documents:
Exhibit 1- 12.14.11 Planning Commission Staff Report
Exhibit I - Relevant Sections EIR (PDF)
Exhibit I - MND CUP97-01 (PDF)
Exhibit 2 - 12.14.11 Minutes (PDF)
Exhibit 3 - FINAL SB EDC - Regal DA (PDF)
Exhibit 4 - RESO (PDF)
(PDF)
Updated: 1/5/2012 by Andrea Travis-Miller A
I-packet Pg;,410
PLANNING COMMISSION STAFF REPORT
CITY OF SAN BERNARDI~O PLANNING DIVISION
CASE:
AGE~DA ITEM:
HEARlNG DATE:
WARD:
Development Agreemcnt No, 1 J -02
3
Dcccmber 14,2011
I
OWNER/APPLICANT:
San Bernardino Economic Dcvclopment Corporation
201 North "E" Street. Ste. 301
San BClllardino, C A 92401
REQUEST/LOCATION:
A proposed agreement betwcen the City of San Bernardino and Regal Cinemas, Inc, for
developmcnt of a J 4-screen movie thcater in an existing structure locatcd at 450 North "E"
Street, in the CR-2, Commercial Regional-Downtown land use disttict.
Project Assessor Parcel Number(s): 0134-131-26
OVERLA YS:
Main Street Overlay District
ENVIRONME1'iT AL FI1'iDli'\GS:
o Not Applicable
. Utilize Certified EIR SCH #2009111089
o No Significant Effccts
o Potential Effects, Mitigated Negative Declaration and Mitigation Monitoring and Rcpo11ing
Program
STAFF RECOMMENDATION:
o Recommend Mayor and Council Approval
o Approval/Conditions
o Denial
o Not Applicable
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I Packet Pg. 411 I
7.0.a
DA 11-02
Den'mber J 4, 20 II
Page]
Chapter 19.40 Development Agreements and California Government Code Section 65864 et seq
authorize the City to enter into development agreements with private developers. Government
Code Section 65865 states: "any city, county, or city and county, may enter into a development
agreement with any person having a legal or equitable interest in real property for the
development of the property as provided in this artiele:' Development agreements provide a
means to assure certain development rights to project proponents. while assuring that adequate
facilities for the public benetit are built in conjunction with private development projects.
Development agreements must specify the duration of the agreement, and development
regulations for the project area, and may include tcrnlS and conditions as agreed to by the
deve loper and jurisdiction.
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PROJECT DESCRIPTION
The applicant requests approval of a Development Agreement under the authority of
Development Code Section 19.40 and California Government Code Section 65864 for
development of a 14-screen movie theater in an existing structure located at 450 North "E"
Street, in the CR-2, Commercial Regional-Downtown land use district (Attachment A).
Government Code Section 65867 requires a public hearing by the planning agency for a
development agreement. Pursuant to Development Code Section 19.40.030 (5), the Planning
Commission shall review the Development Agreement for consistency with the General Plan,
the Development Code and that the agreement will promote the welfare and public interest of
the City.
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LOCA nON
Site
North
South
East
West
LAND USE
20-sereen theater complex
Retail Multi-tenant commercial
Carousel Mall and Parking
Caltrans District 8 Facility
Retail Multi-tenant commercial
GENERAL PLAN
CR-2, Commercial Regional
CR-2, Commercial Regional
CR-2, Commercia] Rcgional
CR-2, Commercial Regional
CR-2, Commercial Regional
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SETTIi\'G/SITE CHARACTERISTICS
The project site is the existing 20-screen theater complex located at 450 North .'[.. Street, in the
CR-2, Commercial Regional-Downtown land use district.
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Additionally, the project site is located in the Redevelopment Project Area Merged Area A.
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CALIFORNIA ENVIRONMENTAL Ot.:ALTTY ACT (CEOA)
An existing certified Environmental Impact Report (SCH #2009111089) was prepared and fully
analyzed all potential impacts related to approval of the Redevelopmenl Project Area Merged
Area A, which included activities to creale a downtown thcnter district and development of
reslaurant and retail pads in compliance with CFQA requirements and Section 19.20.030 (6) of
the Development Code. Findings of fact and Statement of Overriding Consideratiolls were
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7.D.a
DA 11-02
December /4. 201 I
Page 3
. December 20,2010 - The Environmental Impact Report (EIR / SCH ##2009111089)
was certified (Resolution No. CDC/201O-66).
. November 22, 2011 - the Economic Development Corporation Board of Directors
approved an agreement with Yavitz Companies Inc. to develop a portion ofthc theater
building for retail/commercial developments.
. November 29, 2011 - Application for Planning Commission of the Development
Agreement No. 11-02 was submitted.
. December 2011 - Applicant representative submitted letters regarding CEQA
requirements and requested adopting the proposed agreemcnt by ordinance.
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adoptcd in accordance with guidelines for the implementation of CEQA. The proposed
development project which is the subject of the developmcnt agreement is consistent with the
Redevelopment Project Area Merged Area A and the total buildable area described in the subject
agrccment area had been previously analyzcd as part of the E1R (SCII #2009111089). No
additional building square tootage is proposed by the development agrecment. No additional
environmental review is required.
BACKGROUND
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ANALYSIS:
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. Regal will run and operate a multi-plex thcater containing fourteen (14)
auditoriums.
. Regal will use and operate thc theater as a tirst class motion picture theater.
. The term of the development agreemcnt is the samc as the teml of the Regal Lease.
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Development Agreement:
In attempting to rcvitalize the tormer 20-screen theater complex in the downtown area, the
Economic Development Agency has been negotiating with Regal Cinemas Inc. Development
Agreement No. 11-02 will grant Regal Cinemas Inc. the vested right to develop and modify the
[omler 20-screen theater complex into a 14-scrcen theater complex at the subject site pursuant
to the parameters established in the Development Agreement. The Development Agreement will
establish the temlS under which developmcnt will occur and ensure that development on the
subject site will be consistent and compatible through the implementation of a comprehensive
development plan. Attachment C provides a detailed analysis of the proposed development
agrecmcnt. Thc following are key points:
General Plan and Development Code Consistency:
Thc Gencral Plan designation tor the property on which thc thcatcr complex is located is CR-2,
Commercial Regional-Downtown land use district, which permits a diversity of regional-scrving
uses m the Downtown area including \ocal and county governmental/administrative,
cultural/historical and entertainment, rcstaurants, supporting retail service and services.
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DA II-il]
DeC/;:mbi!r /4, 201 I
Page 4
The proposed agreement is consistent with a numher of General Plan policies and objectives. Land
Use Poliey_2.2, I promotes compatibility between land uses and quality designs. Land Use Goal 2.4
encourages revitalization of property to enhance the quality of life and economic vitality in the city.
Goal 4.14 cnhanees and develops recreational, cultural, entertainment, and educational facilities
within the City and Policy 4.10.1 utilizes all available redevelopment agency/City tools to revitalize
and enhance strategic areas of the City. The proposed agreement will not only improve the
appearance of the site, but it will also contribute to the renewal of economic vitality of the area and
will be consistcnt with the above stated General Plan goals and policies.
TABLE A - DEVELOPMENT CODE CONSISTENCY
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The existing theater complex confomls to all Development Code requirements, as shown in Table A.
CATEGORY PROJECT DEVELOPMENT CODE
Pemlilled us~ 14-screen In Compliance
Th~ater Complex
Height 43 feet 1\0 defined Height Limit
Setbacks
- Front o to 10 feet o feet
- Side o fc~t o feet
- Street o f~et o feet
- Rear o feet o feet
Landscape 51 % (68,285 sq. ft) 15 ~.'O minimum
17 shade trees and 34
palm trees
LOl Coverage 55 %, 100 %1 maximum
Parking 3,108 stalls 880 stalls
(CUP No. 97-01)
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The proposed agreement will not cause development that would be detrimental 10 the public
interest, health, safety, convenience, or welfare of Ihe City. The proposed agreement allows for
the re-tenanting of a vacant theater complex on a commercial property in need of revitalization
and rehabilitation,
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I Pllciit~tPg. 414 I
7.D.a
DA 11-02
December 14. 2U11
Page 5
RECOMMENDA nON
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Statf recommends that the Planning Commission recommend approval of Development
Agreement No. 11.02 to the Mayor and Common Council and that the Mayor and Common
Council adopt an Ordinance approving Development Code Amendment No. 11.11 and
Development Agreement No. 11-02 concurrently.
Respectfully Submitted,
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Aron Liang
Senior Planner \
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Approved lor distribution:
M. Margo Wheeler, AICP
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Attachment A
Attachment B
Attachment C
Attachmcnt D
Attachment E
Location Map
Dcvclopmcnt Agrecmcnt
Development Agreement Major Points
Applicant reprcsentative correspondence dated December 7 and 8, 2011
California Government Code Section 65864 - 65869.5
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Packet Pg,'415
7.D.a
II
ATTACHMENT A - ZONING MAP
CITY OF SAN BERNARDINO
PLANNING DIVISION
PROJECT: DA No. 11-02
LOCATION MAP
HEARING DATE: 12/14/2011
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I: Packet Pg.'416 1
A TT ACHMENT B
Recording Requested
By and Mail To:
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City of San Bernardino
300 North "D" Street
San Bernardino, CA 92418
When Recorded, Mail To:
Mr. James F. Penman, Esq.
Omce of the City Attomey
City Hall, Sixth Floor
300 t\orth "D" Street
San Bernardino, CA 92418
D1CVELOPlVlEI\T AGREEME:\'T
8ETWEEl\
THE CITY OF SAI\ BERNARDINO
MiD REGAL CIl'iE\IAS, INC.
This Development Agreement between the City of San Bemardino and Regal Cinemas, Inc. (this
"Agreement") is entered into by the City of San Bemardino, California, a municipal corporation (the
"Citv") and Regal Cinemas, Inc., a Tennessee corporation ("Rcgal"), and for the limited purposes as
noted herein, the Redevelopment Agency of the City of San Bemardino, public body, corporate and
politic. (the "Agency") and the San Bernardino Economic Development Corporation. a Califomia nOI1-
profit corporation (the "SBEDC'). For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the City and Regal agree as follows:
1. RECITALS. This Agreement is entered into \vilh reference to the following:
1.1 The Lease. The SBEDC and Regal entered into a Lease Agreement (the "Lease")
effective as of the Eftective Date (herelllalkr defined in Section 1.11 of this Agreement).
1.2 Property. SBEDC owns real properly located at 450 North "E" Street in San Bernardino,
being described in the attached Exhibit "A" (the "Land," with the Land and the improvements thereon
referred (0 as the "Propertv"). which Property is pan of the Theatre Square entenainment and relail
project in downtown San Bernardino (the "Proiect").
1.3 Buildilli!. The Property is unproved by a multi.plcx theatre cOllstmctcd to contain twenty
(20) auditoriums (the "Buildinu"), but which will be altered pursuant to the Lease to contain fourteen (14)
auditoriums.
1.4 Theatre. Pursuant to the Lease, six (6) screens "nd auditoriums of the Building shall be
separated from the remainder of the Building, leaving a multi-plex theatre containing fourteen (14)
auditoriums (the "Theatre"), and thereupon the Theatre will consist of fourteen (14) auditoriums and
related areas of the Building.
\.5 Reca!. Regal has leased the Theatre from SBEDC pursuant to the Lease.
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t' Rl'!,al Cil\~mJ 1..(;<,;,' ;J1I(1 <>ihl'r d(Jc'.; D..\ Dt'lcl"l'm"I'( Agrl'\.'lII"lll 12.0~.1) dlA:\
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Pa-cket Pg. 417
1.6 Dcvelopment A\!rccment PUfOOSC. The City :md Regal have entered into this Agreement
to facilitate and encourage the pursuit and development of thc Property, including alterations 10 the
Building on the Property, and to establish certainty ll1 the development process tor Regal on the Property.
Regal desired certainty with respect to speellic matters for it and SBEDC to pursue various work
associated with the development of the Property. 111e City desired to provide certainty through this
Agreement with respect Lo spccific developmcnt criteria to bc applicable to thc Project in order to provide
for appropriate utilization of the Project 1n accordance with sound planning principles.
1.7 ('ode Authorization and Acknowled~emcnts. The City affirnls that it is authorized
pursuant to California Government ('ode Sections 65864 through 65869.5, (the "CalifornIa Development
A~Heement Lcuislat1on") to enter into development agreements \\'ith persons having legal or equitable
interests in real property for the purpose of establishing certainty in the development process. The City
enters il1to this Agreement pursuant to the California Development Agreemcnt Legislation and pursuant
to City Code Chapter 19.40 (herematter detined).
1.7.1 The City affinns that this Agreement constitutes II current exercise of the City's
police powers to provide certainty to Regal in the development approval process and the
development of the Property by vesting certain permitted land uses and de\'elopment criteria
described 111 the Development Code (herell1alicr delined) and eertam other malters set forth in this
Agreement in exchange for signiticant pubhc bencfits the City wuuld receive if the Project is
developed as proVIded in the Lease.
1.7.2 This Agreement is granted in consideration of Regal entering into the Lease and
of the Slgniticant pub lie benelits that could be derived from the development of the Property,
mcluding the development of the Property acting as a potentially significant catalyst for the
develnpment of other properties within the Central City :\orth (the "CCN") Redevelopment
ProJect Area within the City, as well as: (a) mitigating blight currently existing in such area, (b)
creating new employment opportunities ,~/ithin the region; and (c) contributing to the expansion
and/or extension of public services and utilities. The City acknowledges that each of these
potential benelits independently provides suf1icient public benetits to Justify this Agreement. The
City further acknowledges that a sib1l1ificant bencfit arising from the Regal Lease on the Property
includes the potential additional tax increment revenues from the Property and the remainder of
the CCN redevelopment area in the City which could be more rapidly developed due to the
development of the Propel1y.
1.8 General Plan Consistency. The Economic Development element of the General Plnn
identities the Property and the existing Building as a significant dcvclopm~nt of the Central City North
Redevelopment Project Area. Additional improvement of the Property, as facilitaLed by this Agreement, is
consistent with the General Plan, as demonstrated by tlu1herance of the following General Plan goals and
policies: Goal 4.10 "Optimize existing redevelopment project areas to identify and prioritize development
opportunitil..'s."; Polley 4.10.1 "Utilize all available redevelopment agency/City tools to revitalize and
enhance strategic arcas of the City."; Goal 4,14 "Enhance, maintain, and develop recreational, culturaL
entertainment, and educational facilities within the City."; Policy 4.14.2 "Seck and attract llses that foster
a high level of eveniug actIVity (e.g. theaters and restaurants)"; and Policy 4.14.3 "Attract uses that
complement and intensify the Convention Center in downtown San Bemardino, including expanding
convention facilities, hotels, restaurants, theaters, and similar uses."
1.9 Develo0111cnt Al!reement Findinl!s. The City detennines and affinns that this Al;,Treement
is consistent with the City General Plan and the City Development Code and will promote the welfare and
public mterest of the City. Further, upon occurreuce of the following evenlS, the Conncil shall make the
lollowing tindings and shall confinn compliance with City Code Chapter \ 9.40:
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1.9.1 Regal shall request and apply through the Director of the City's Community
Development Department (the "Director"') to cnter into this Agreement, and the Agency and
SBEDC shall have joined in such application;
1.9.6 The Director shall receive, reviev.' and process Regal's application for
consideration by the Planning Commission of the City (the "Plannin!.! Commission"), and the
Council shall recommend that the Planning Commission and the Council approve Regal's
application and the City entering into of this Agreement;
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1. 9.2 Regal and the SBEDC shall have a legal or equitable ownership interest m
portions of the Property or the Project, and the Property exceeds two acres 111 size;
1.9.3 Regal's application to enter into this Agreement shall be made on fonus
approved, and shall (,;ontain all infonnation required, by the Director;
1.9.4 The status of Regal, the Agency, and the SBEDC as owners of, or holders of
legal or equitable interests iu, the Property shall be established to the satisfaction of the DIrector:
1.9.5 Regal's application shall be accompanied by the fee establishcd pursuant to
Chapter 19.32 (Application and Fees) and all other lawfully required documents, materials and
infomlation which fee was patd by the SBEDC for the benefit of Regal;
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1. 9. 7 Thc City shall comply with all requiremcnts of the California Environmental
Quality Act and all other applicable laws in the approval of this Agreement and adopting the
Resolution (hereinafter defined).
1.10 Planning Commission and Common Council Hearings. On 2011, the
Planning Commission, after giving the notice required by law, held a public hearing to l:onsidcr the
application for adoption of this Agreement. At the conclusLon of the public hearing, the Planning
Commission recommended to the Council that this Agreement be adopted as proposed. On
2011, the Council, after providing notice as required by law, held a publIc hearing to consider the
application for adoption of this Abrreement. The Resolution v,ras adopted by the City in accordance with
tlIe requirements and procedures set forth in Section ]9.40.030 of City Code Chapler 19.40, approving the
application for adoption of this Agreement, authorizing execution of this Agreement by the Mayor of the
City and setting forth findings (with slIPP0l1ing facts) referenced 1ll Section 1.9 above,
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1.9.8 All other requirements under applicable law shal] be satisfied by Regal or the
City with respect lo this Agreement.
, 2011, the Council adopted Resolution :-<0.
The Resolution became effective on
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1.12 Citv Code Chaoter 19.40 Mandatorv Contents. The City at1inns that thIS Agreement does
contain the provisions required by Section 19.40.040 (I) of the City Code Chapter 19.40, as follows
(paragraph references are to said Seclion ] 9.40.040 (1):
1.12.1 DuratlOn.-- see SectIOn 3.2 orthis Agreement;
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1.12.2 Us~s, density, intensity, height and size - see Sections 3,3 and 3.4 of dus
Agreement;
1.12.3 1'\0 reservation or dedication of land fur public purposes is contained in this
Agreement;
1.12.4 No protection against fee increases -- see Section 3.4.2(3 )(ii) of this Agreement:
1.12.5 Tiered amendment process .-- see Section 7.2 of this Agreement: and
1.12.6 Health and safely exceptIOn - see Sectinn 3.4.2(b) of this Agreement.
t\othing herein shall require Regal to detennine or affinn whether this Agreement is in compliance with
City Code Chapter 19.40. and Regal has made no such detemlination or animlatlOn.
2. CERTAIN DFF1CJ1TIOJ\:S. In this Agreement. unless the context reqllll'es otherwise (and in
addition to other defined tem1S in this Agreement):
2.1 "Citv Code Chapter 19.40" means Chapter 19.40 of the City Development Code in effect
as of the Effecllve Date.
2.2
"General Plan" means the San Bernardino City General Plan in effect as of the Effective
Date.
2.3 "Assiunee" means a Person (a) tn whom Regal (or an Assignee or Regal) expressly
assigns its rights and obligations under this Ag.reement and the Lease.
2.4 "O\vner" means any Person that owns a parcel in the Property, including a leasehold
ownership interest, except for (a) any governmental entity that owns merely a right-of-\vay, easement for
a right-of-way or utility casement, or (b) uny utility company that owns merely an easement or a sub-
station or similar facility.
2.5 "Person" means any natural person, finn, association, organization, business trust,
pal1nership, joint venture, limited liability company, corporation, or other legal entity, including any
entity named in the cummenccme11l clause of this Agreement.
2.6 "SREOC Parcels" means all portions of the Project owned by SBEDC that are located
oubide the Property, as the SBEDC Pareels are shown on the map that is included as part of Exhibit "A"
2.7 "SBFDC Acauired Parcels" means any parcels that are part of. or adjoining, the Project
that are acquired by SBEDC alter the Effectivc Date. including any portion of the real propeny shown on
the map that IS 1I1cluded as pan of Exhibit" A" as being outside the SBEDC Parcels but which may be
latcr acquired by SBEDC.
3. DEVELOPMENT OF THE PROPERTY: VESTED PROVISIONS
3.1 Citv Code ChaDter 19.40. TIllS Agrecment is suhJect to the proviSions of City Code
Chapter 19.40.
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3.2 Tenn. The tenn of this Agreement ("Tenn") shall commence on the Effective Date and
extend for a penod ending on the expiration or earlier tCl1nination of the Lease; provided, however. that
the Tenn of this Agreement shall not extend past the day that is the twenty (20) ycar anniversalY of the
Effective Date.
3.3 Vested Provisions. Rega] shall have the vested right to develop the Property in
accordance with the Development Code, as in effcct as of the Effective Date and the other provIsions of
this Agreement and thc Lea5e, including without limitation the provisions of Section 3.6 (the "Vested
Provisions"). All existing and future roles, regulations, ordinances, resolutions, and pohcics of the City as
applied to any use or developmcnt of the Property shall be interpreted and en(t)feed in a manner
consistent with the Vested Provisions.
3.4 Chanecs in the Vested Provisions. The Vested Provisions. including without limitation
the provisions of Section 3.6, shall not be amended. changed or modified in any manner by the City
through any actIOn or the Council during the Tenn of this Agreemcnt \vithout the prior express written
consent of Regal having first being obtained. which written consent may be granted or denied by Regal at
the absolute and sole discretion of Regal.
3.5 Joinder hv the SBEDC'. The SBEDC joins in this Agreement to snbject the respecllve
parcels to this Agrecment and Cor those parcels to receive the benetlts of this Agreement.
3.5.1 SBEDC subjects the SBEDC Parcels to this Agreement
3.5.2 SI3EDC subjects the SBEDC Acquired Parcels to this Agreement.
3.5.3 All ofthc bcnel;ts of the Vested Provisions and this Agreement apply to all of the
Project (which includes the Regal leased Parcel and the SllEDC Parcels) and all SI3EDC
Acquired Parcels. as covenants running with the land.
3.6 Other Citv Commitments.
(a) The City has not adopted any "Iiving wage ordmanee" that would be
applicable to the Regal tenancy or the Theatre or as to any other project
or site within the City of San Bemardino municipal boundaries. A
"living wage ordinancc" within the mcaning of this Agreement is any
requirement imposed by the City thm requires Regal to include any
component of wages or other 1'on11 of compensation in the \V'ages or
benefits of Regal employees. The provisions or this Section slull remain
in full force and et!ect li'om and after the Effective Date and continue in
effect during the Tenn of (his Agreement ~detined in Section 3.2). with
the result that no living \\'agc ordinance as above-defined shall be
applicable to the Regal tenancy or the Theatre during thc Tcrm of tillS
Agreement. In the event any living \vage ordinance is enacted on the
basis that it is mandated pursuant to any State or Federal law. rule or
regulation, and in tht: event sllr.::h living wage ordinance is unifonnly
applicable across the State of Cali forma, such shall not be deemed a
"living \vagc ordinance" pursuant to this Section 3.6(a). However. 111 the
~vel1t any livll1g wage ordinance is enacted on the basis that 1t 1S
mandated pursuant to any Stale or Federallmv, rule or regulallOn. and in
the event such living wage ordinance is not unilonnly applicable across
the State of Cali!onlia. such shall be deemed a "living wage ordin,mce"
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pursuant to this Seetion 3.6(0) and SBEDC shall reimburse Regal on a
monthly basis all additional costs incurred by Regal due to such living
wage ordinance, as provided 111 the Lease (including Regal's right under
the Lease to offset such costs against rent payable under the Lease).
(b)
For the Tenn of this Agreement (defined in Section 3.2), the City agrees
that it will neither entitle nor approve any other motion picture theatrc
within the municipal boundaries of the City otherwise pennitted
pursuam to the Vested Provisions as contained in Development Code
Chapter 1906 that has a seating capacity in any single motion picture
theatre (rcgnrdless of the number of auditoriums) equal to more than two
hundred (200) seats nor havmg any auditorium for the presentation of
recorded movje productions of a square footage greater than tluce
thousand (3,000) square feet, without the prior written consent of Regal
to bc granted or withheld in Regal's sole discretion. The City and Regal
jointly agree that such limitation is in the best interests oCboth panies to
enable the Theatre to gain market acceptance in the Inland Empire
Region based upon the prior investments of public funds by the SBEDC
and the City III the Property and the property leased to Regal under the
Lease.
3.7 Regal Commitments. The provisions of this Section shall remain in full force and effect
!,om and atier the Effecti ve Date and continue in effect during the Term of this Agreemcnt (defined H1
Section 3.2 to be coterminous with the Lease). Regal commits to (i) use and operate the Theatre as a tirst
class motion picture theatre as part of a systelll of motion picture theatres operated by Regal and its
subsidiaries and amtiates), (ii) not sacrifice the profits of the Theatre in an el10rt to revitatize any other
business operations of Regal or any other subsidiary or affiliate thereof (v./ith the understanding that
profits f,om the Theatre will not be segregated or otherwise maintained separately l,om the prolits of
other motion picture theatres and businesses of Regal and its subsidiaries and affiliates), and (iii) abide by
the terms of the Lease.
4. PERIODIC REVIEW
4.1 Time of Review. This Agrcement shall be reviewed by the City at least once a year III
accordance with Catitornia Govelllment Code Section 65865.1, on or betore the anniversary date of the
recordation of this Agrcelnent. in order to ascertain the good l"aith compliance by Regal \vith the tenns of
this Agreement. Upon request by the City, Regal shall submit an Annual Monitoring Report
dl.:lllonstrating its good faith compliance ""..ith the tenns of lhis Agreement \vithin thirty (30) calendar days
after written notice rrom the City of the date of the review to be conducted by City. Pollowing any such
review, the City shall notify Regal in writing within thirty (30) calendar days of its detennination as to
compliance or noncompliance with the tcnns of the Agreement. The :lI1Ilual review procedure set forth
herein ~md in Govclllment Code Section 65865.1 shall be applicable during the Tcnn of this Agreement.
4.2 Failure \0 Conduct Periodic Review. In the event thc City fails to conduct the periodic
review, such failure shalluot be deemed approval by the City of Regal's good faith compliance with the
ten11S of this Agreement, and the City may undertake an independent review of Regal's performance since
the date of the last annual review, or as of the Effective Date. as applicable, unless Regal shall have
submitted an Annual Monitoring Rep0l1 to the City demonstrating its good faith compliance \vilh the
temlS of this Agreement nOlwithstanding the lack of notice li"om the City as provided in Section 4.1
above. In the event the City has not taken action to accept or n.:jcct sLlch Annual \t1oniwring Report within
I' Rq;") ("",r..," Lr..l.'" ;In.l ",11", tf,><;< D..I. D"I ,"J.'p"'rnl .\!,HCl1Irm 1!-Ol,.II.d.""
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ninety (90) calendar days after receipt, Regal shall then be deemed to have complied in good faith with
the tenns of this Agreement.
5.1.1 A warranty, represelllation, or statement made or furnished by Regal to the City
in or under this Agreement is false in any material respect when it \vas made.
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4.3 Cost of Periodic Review. The SBEOC shall pay to the City the actual cost incurred by the
City in conducting any stich periodic review as provided in Sections 4.1 and 4.2 above. The actual cost of
such review shall be based upon the City fee structure then in effect, including the salaries and reasonable
costs and expenses of the Office of the City Atlomey or any other experts and other legal counsel retained
by the Office of the City Attorney with respect to such review. The SBEDC shall submit the review fees
concurrently with submission of the Annual Monitoring Report pursuant to Sections 4.1 and 4.2 above if
such a published applicable fee structure then is in effect and shall also submit a deposit for the estimated
City fees (If a set amount is not specified in a published fee schcdule) and the estimated salaries and
rcasonable costs and expenses to be incurred by the OCtice of tlie City Attomey promptly after receipt of
such cstimate from the City.
5. OEl'Al.:LT.
5.1 Events of Default. A default under this Agreement shall be deemed to have occurred
upon the happening of one or morc of the following events or conditions:
5.1.2 A good faith finding and dctemlination by the City made following a periodic
review under the procedure provided for in Califomia Govemment Code Section 65865.1 and
Section 4.1 above that upon the baSIS of substantial evidence Regal has not complied in good
fnith with one or morc of the tenns or conditions uf this Agreement.
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5.1.3 Any other act or omissinn by the City or Regal that breaches or matcrially
interferes with any ol'thc ternlS of this Agreclllem.
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5.2 Procedure upon Default. 1\cither the City nor RcgJI may exercise any remedies with
respect to an event of default referenced in Section 5.1 above nnlcss the party claiming a default by the
other party gives a written notice to the alleged defaulting party specifying the event of default and such
event of defanlt is not cured within thc applicable Cure Period (hereinafter defined). 111e ten11 "Cure
Period" as used herein means (a) with respect 10 an event of default that reasonably can be cured within
thirty (30) calendar days. the period of thirty (30) calendar days lollowing the receipt of such written
default notice, and (b) with respect to an event of default that cannot reasonably be cured within thirty
(30) calendar clays, and If efforts arc commenced to curc such default Within thirty (30) calendar days
f()llowing the receipt of stich written default notice, the period reasonably required to complete such clIre
with diligent prosecution.
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5.3 Remedies, In the evcnt Regal shall be in defanlt under this Ab'feCment, and after all Cure
Periods have been exhausted, the City as its sole remedy may terminute this Agreement and the Lease
upon delIvery of u notice of tenllination to Regal. which notice of termination shall be effective as lO the
tennination of this Agreement within thirty (30) calendar days after receipt by Regal if such default
remains uncured. In the event any party other than Regal shall be III default under this Agreement, all
remedies, at 1mv or in equity, shall be available to Regal with respect to such default. l'\otwithstanding
anything III this Agreement to the contrary. the acts of one Owner ofa parcel within the Property shall not
afTect the rights LInder this Agreement with respect to any other parcel w'ithin the Property.
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5.4 RESERVED
6. PROTECTION or MORTGAGE HOLDERS.
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6. I Protection of Mortgage Ilolclcrs. Regal and the City agree that tIllS Agreement shall not
prevent or limit Regal (or any Owner). in any manner, at Regal'5 (or such Owner's) sole dist:rctioll, from
encumbering the Property or any portion thereof or any improvement thereon (owned by Regal or any
other O\vner, as the case may be) by any mOl1gage. deed of trust or other security device securing
tinancing with respect to such Property. The City acknowledges that the lenders providing such financing
("Mort1!allees") may require cer1ain Agreement interpretations. Accordingly, the City agrees, upon the
written request or Regal (or the applicable Owner), to meet from time to time with Regal and
representatives of sllch Mortgagees to negotiate in good faith any such request for interpretation. The
party making such request shall be obligated Ill[ the payment or reimbursement to the City of all costs
incurred by the City directly related to this provision to meet and negotiate any such requests Ill[
interpretation and, upon request by the City, shall make a cash-equivalent deposit in an amount of such
costs as reasonably estimated by the City in advance of the City entering into such negotiations. The City
will not unreasonably withhold ib consent to any slIch requested interpretation, provided such
interpretation is consistent with this Agreement. Any Mortgagee of all or any portion of the Properly shall
be entitled to the following rights and privileges:
6.1.1 Neither entering into this Agreement nor a breach of this Agreement shall defeat,
render invalid, diminish, or impair the lien of any mOl1gage on nil or any portion of the Property.
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6.1.2 I f the City timely receives a \vriuen request from a .\1ortgagee requesting a copy
of any notice of default that may be given to Regal under the terms of this Ab'feement, the CIty
shall provide a copy of that notice to the Mortgagee Within one (I) Business Day after sending the
notice of default to Regal. The Mortgagee shall have the right, but not the obligation, tn cure the
default during the remaining cure period allowcd such party undcr this Agreement.
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6.1.3 Any Mortgagee who comes into possession of all or any portion of the Property,
pursuant to foreclosure of the mortgage or deed of tmst, or deed in lieu of such foreclosure, shall
take the Property or part thereof subject to the tenns of this Agreement, including the right of the
City to tenninate this Agreement in the event that a default under this Agreement by Regal is not
cured during the cure periods provided in Sections 5.2 and 5.3 above. Not~'ithstanding any other
provision of this Agreement to the contrary but subject to the immediately preceding sentence, no
Mortgagee shall have an obligation or duty under this Agreement (0 perform any of Regal's
obligations hereunder or to guarantee such performance.
7.
GENERAL PROYISIO:'>lS.
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7.1 Assil!nment. Nothing m this Agreement affects Regal's or any other Owner's rights to
O\\'n. transfer. conveyor encumber all or any portion of the Property owned by Regal or such other
Owner. Regal (or an Assignee) shall have the right to assign, without the consent of the City, all or part of
its rights and obligations under this Agreement to a Person who is an Assignee. Cpon the assignment of
this Agreement to a Regal Assignee. (:.I.) the 3ssignor (Regal or an Assignee, as the case may be) shall be
released from this Agreement when (i) written notice of such assignment is given to the City, and (ii) the
Assignee assumes ill writing the obligations or Regal under this Agreement with a copy thereof delivered
to the CIty, and (b) the tenn "Regal" as tlsed in this Agreement shall mean stich Assignee. No other
Owner shall have allY right to assit,111 this Agreement or uny rights thereunder.
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7.2 Amendment or Tcm1ination of this AQreement. Except as provided in Section 5.3 above
(for termination as a remedy for an uncured delimh). this Agreement may be amended or temlinated with
respect to any parcel within the Property only by \\Titten agreement signed by the then current O\\'ncr of
such parcel and the City after approval by the Council (and, as to the Theatre, by Rcgal or its Assignee),
without the necessity of the joinder of any other Person; provided, however, any amendment or
tennination of this Agrcement shall not be effective with respect to any parcel in the Property or with
respect to the rights under this Agreement of any Owner unless the Owner of sllch parcel or the Owner
\vhose rights are so affected also is a signatory to such amendment or termination. In order for any su<.:h
amendment or lcnllination to be effective, it must be adopted by the City by resolution as set forth in the
California Development Agreement Legislation and must be in fonll suitable for recording in the Official
Records of San Bernardino County, Cali!ornia. In accordance wlth City Code Chapter 19.40, the
procedure for an amendment to this Agreement shall be a liered amendment review procedure as foIlO\\ls:
(a) proposed amendments that are development related (such as affecting
lIses, density. height, coverages, or setbacks) mllst be submitted to the
Planning Commission of the City for recommendation for approval or
non-approval and then forwarded to the Council for determination, at the
Council's discretion, of approval or non-approval, \\'ith the Council not
being bound to accept the Planning Commission rccommendation~ and
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(b)
all other proposed amendments mllst be approved by the Council at its
discn::tion.
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7.3 Hold Ilarmless. Regal shall de/end, indemnify and hold hannless the City and the
Agency, the SBEDC, their officers, elected ot1icials, attorneys, departments, boards, commissions,
employees and agents (collectively, the "Citv/Agencv/SBEDC Indcmnified Parties") from any claim,
actions or proceeding against the City/ Ageney!SBEDC Indemnified Parties to attack, set aSide, void or
annul this Agreement on the basis that Regal did not have authority to enter into this Agreement ("Regal
Indemnity Claim"); and Regal shall reimburse the City/Agency/SBEDC Indemnified Parties It)r any court
costs and attomey's fees which the City/Agency!SBEDC Indemllltied Parties may be required by a court
to pay as a result of a Regal Indemnity Claim. At its sole discretion, the City, the Agency, and/or the
SBEDC may participate at its own expense in the deCense of any such Regal Indemnity Claim, bllt sllch
participation shall not relieve Regal of any obligation imposed by this Section 7.3.1. The City, the
Agency, and/or the SBEDC shall notify Regal promptly of any Regal Indemnity Claim and cooperate
fully in the defense. Regal, the City, the Agency, and/or the SBEDC shall jointly select legal cOllnsel to
represent the City, the Agency, and/or the SBEDC in any sllch Regal Indemnity Clann. The City, the
Agency, and/or the SBEDC, \vithout Regal's written consent, shall not settle any Rl'galIlldemnity Claim
that is subject to the indemnity under this Section 7.3. I. If during the proceeding a settlement dem.md is
made and Regal is willing to satisfy the settfement demand and the City. the Agency, and/or dIe SHF.DC
rejects slIch settlement demand, Regal's indemnity obligation in this Section 7.3.1 shall ti'om that point
forward not exceed the amount of the seul\:mr:nt demand. Notwithstanding any language to the contrary
in this Section 7.3.1 or elsewhere in this Agreement, Regal shall have no indemnity obligations to the
City/Agency/SBEDC Indemnified Par1ies for c]ajm~ thaI arise from or arc alleged to arise from (i) the
negligence or will rul misconduct of any of the Cily/'Agency/SBEDC Indemnitied Parties, or (ii) any costs
or legal expenses that arise from :.IllY suit or action commenced by any of the City/Agcncy/SBEDC
Indemnified Parties.
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7.4 Binding Effect. Except to the extent otherwise provided in this Agreement, the burdens
or this Agreement bind, and the benefits of this Agreement inure to, the City's and Regal's rcspectlve
successors in interests and assigns, including as provided in Section 3.5.3 above and in Section 7.5 below.
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7.0.a
7.5 Relationship of the City find Regal.; Third Party Beneficiaries. The contractual
relatIonship between the City and Regal (and any other signatory to this Agreement) arising out of this
Agreement is one of independent contractor and not agency. Nothing in this Agreement shall be construed
as making the City and Regal (or any other signalory to this Agreement) joint venturers or partners. There
are no third party beneficiaries of this Agreement, and this Agreement does not ereale any third-party
bcndiciary rights; provided. ho\vever, (a) the provisions of this Agreement regarding development rights
applicable to the Property shall apply to and be enforceable by any Owner with respect to the portIOn of
the Property owned by such Owner, and (b) an Owner has the rights sel forlh in Section 7.2 of this
Agreement regarding amendment and tennination of this Agreement.
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7.6 Notices. Any notice to be provided or permitted under this Agreement shall be in writing,
signed by the party giving such notice and sufficiently glvcn if hand delivered, delivered by an ovenlighl
messl:ngerldclivery service or mailed by registered or certitied mail. postage prepaid, return receipt
requested, addressed as set forth below. Such notices, if delivered (i) by hand. shall be deemed given
when delivered, (ii) by an overnight messenger/delivery service, shall be deemed given upon delivery or
one (1) Business Day (hereinafter detined) after the sending of sl1ch notice, \vhichever occurs earlier, and
(iil) by mail, shall be deemed given tive (5) Business Days after depOSIt in the L.S. mail. Notice that
starts the running of any cure period and that is delivered on a non-Business Day shall be deemed
delivered on the next follmving Business Day if Icft at the notice address or the next Business Dayan
which it is redelivered if it is not left at the notice address.
The names and address of those representatives of each party to which notices shall be sent are:
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If to City, to:
With a copy to:
And a copy to:
If to Regal. to:
With a copy to:
City of San Bemardino
300 North "D" Street
San Bernardino. CA 92418
Attention: City Manager
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Timothy J. Sabo
Lewis, Brisbois. Bisgaard & Smith, LLP
650 East Hospitality Lane, Suite 600
San Bemardino, CA 92408
SBEDC
201 North Ii Slreet, Suite 301
San Bcmardino, Califomia 92401
Attn: EmIl A. Marzullo
Regal Cinemas, Inc.
7132 Regal Lane
Knoxville. Tennessee 37918
Attn: Real Estate Department
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Herbert S. Sanger, Jr., Esq.
Wagner. Myers & Sanger, P.c.
1801 first Tennessee Plaza
Knoxville, Tennessee 37929
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Such addresses shall be subject to change from time [0 lime to such other representatives or addresses as
may be specified in written notice given by the intended recipient to the sender in accordance \\'ith this
Section 7.6.
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Packet Pg..426
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7.7 Estoppel Certiticates. At the request of eIther party, the other party, within thirty (30)
calendar days aner receipt of such request, shall certIfy in writing that. to the best of its knowledge, (a)
this Agreement is in full force and effect in accordance \'lith its tenns and is a binding obligation of the
certlCying party, (b) this Agreement has not been amended or modilied, except as is expressly stated in
that estoppel certilicate, and (c) no default 111 the perCornlance of the requesting party's obhgations as
provided In this Agreement exists, except as expressly stated in that estoppel certificate.
7.8 Rules of Construction. '111C singular includes the plural; the masculine gender includes
the feminine; "shall" is mandatory; "may" is permissive. The word "including" as used herein shall be
deemed to mean "including, but not limited to." A ""Business Day" is a day other than a Saturday,
Sunday or City holiday.
7.9 Entire A{!recmcnt and \Vaivers. This Agreement constitutes the entire understanding and
agreement of the City and Regal \vith respect to the matters set forth in this Agreement. This Agreement
snpersedes all negotiations or previolls agreements between the City and Regal respecting this
Agreement. All waivers of the provisions of this Agreement mLlst be in writing and signed by the
appropriate authorities of the City and Regal.
7.10 IncomoratlOn of ReCitals and Exhibits. The recilals set forth in Section 1 of this
Agreement and exhibits reterenced in this Agreement arc incorporated in and part of this Agreement.
7.11 Caotions. The captions of this Agreement are for convenience and reference only and
shall not define, explain, modify, construe. limit, amplit)' or aid in the interpretation, construction, or
meaning of any of tile provisions of this Agreement.
7.12 Consent. Where the consent or approval of the City or Regal is required in or necessary
under this Agreement, such consent or approval shall not he unreasonably withheld, delayed, OJ'
conditioned.
7.13 Covenant of Cooperation. The City and Regal shall cooperate, deal with, and assist each
other in good faith in connection with the perfonnuncc of the provisions of this Agreement.
7.14 Recordin~. Thc City Clerk shall cause a copy of this Agreement to be recorded with the
Omce of the County Recorder of San Bemardino County, California, witllln ten (10) calendar days
following the execution of this AhYfCCment.
7.15 Severabilitv. Every provision of this Agreement is and sha1l be construed to be a separate
and independent covenant. \Vithollt limiting the generality of the foregoing, if any provision of this
Agreement is found to be invalid or unenforceable for any reason, then the remainder of this Agreement
shall not be affected and shall be enforced to the extent permitted by law and the partics shall negotiate in
good faith for such amendments to this Agreement as may be necessary to achieve its intent.
notwithstanding such invalidity or llnenforccabili1y.
7.16 Further Actions. Whenever and as often as it is requested to do so by the other party. each
party shall execute. acknowledge and delrvcr or cause to be executed, acknowledged or delrvered, any and
all such ftlllher doclIments as may be n:asonably necessary, expedient or proper In order to achieve the
intent of1his Agreement.
7.17 Intemretation and Governll1g Law. ThiS ^greemcnt and any dispute aris1l1g hereunder
shall be governed and interpreted in accordance With the laws of the Stale of Calrfomia.
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Packet Pg'';427
7.18 SBEDC]\;o Longer Party. At snch time that the SBEDC no longer owns any portion of
the Project, the SBEDC shall no longer be a party to this Agreement. AI request of elther Regal or the
City, SBEDC shall provide written confirmation of lts nonownership position in recordable form
reasonably acceptable to the SBEDC, provlded. however, the fi.1n1ishillg of such \\'ritten confirmation is
not required as a condition to SBEDC no longer being a pat1y to this Agreement, as such automatically
occurs upon snch non-ownership as reflected in the Official Recording of San Bcrnardino County,
California, Nothing con lamed herein shall prevent the S13EDC 1rol11 sellmg, conveying, or otherwise
mortgaging all or any interest of the SBEDC in the Project.
ISIG:'IATURE PAGE FOLLOWSI
7.D.a
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. Packet: P9"!428
7.D.a
Il\ WITNESS WHEREOF, this Agreemcnt has been executed by the City of San Bernardmo,
acting by and through its Mayor and COIllmon Council, pursuant to Resolution No.
authorizing such execution, by Regal Cinemas, Inc., and by the San Bernardino Economic Development
Corporation,
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Dated this _ day 01'
,201 ,
('[TY
CIty orSan Bernardino
REGAL CINEMAS, lNC.
Regal Cinemas. Inc.
a Tennessee corporation
By:
By:
Name: Patrick J, MOlTls
]'\amc:
Title: Mayor
Title:
City Clerk
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Approved as to fonn and Legal Content:
By:
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SBEDC
San Bemardino Economic Development Corporation
a Calitomia non-profit corporation
AGENCY
Redevelopment Agency
of the City of San Bernardino,
a public body, corporate and politic
By:
EmU A, Marzullo
Interim Exccuti ve Dirt?ct(lr
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President
APPROVED AS TO fORM:
APPROVED AS TO fORM:
('ounsel
Agency Counsel
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7.D.a
EXHIBIT A
PROPERTY
API\ 0134-121-26-0000
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Legal Description - MN 0134-121-26-0000
Parcel No. 1 of Parcel Map 15038 in the City of San Bemardino, County of San Bemardino, State of
Cali fornia, as per plat recorded in Book 186 of Parcel Maps. Pages 14 and 15. records of saId County.
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",,1- cinema Parcel- - - t1fHI- - .. '
I' k"~.Jll'i",'n:" L~.c,~ JIlJ ",her J,'i:S In Dn .-I1'1'[n.'1\1 Asr~~II1(111 l~-I)(,.II.J,,,~
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EXHIBIT B
VESTED PROVISIO"lS
The follo\ving portions and provisions of the Development Code arc the Vested Provisions:
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Amendment to Development Code Chapter 19.06 - Commercial Districts. Table 06.01 - Commercial
Districts List of Permitted Uses as amended on .201
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I 7.0.a
ATTACHMENT C
DEVET~OPMEl\T AGREEMEl\T
The DA is between City of San Bernardmo and Rcgal Cinemas, Inc., a Tennessee corporation ("Regal")
and lor limited purposes the Redevelopment Agency of the City of San Bernardino and thc San
Bernardino EconomIc Development Corporation.
The SBEDC and Regal is cntering into a Lease With Regal to run a 14-scrccn cinema located at 450
North "E" Street in San Bcrnardino.
SBEDC owns thc real property, which is the former 20-screen multi-plex theatcr, located at 450 North
"E" Street in San Bcrnardino.
Pursuant to thc Lease, Regal will operate a rnulti-plex theatre contaming fourteen (14) auditoriums.
The DA is to facilitate and encourage the pursuit and devclopment of the theater, including tcnant
improvcments, and to establish certainty in the development process for Regal on the Property.
The DA is granted in consideration of Regal entering into the Lease and of the significant public bendits
that could be derived from the development of the Property. Acting as a potentially significant catalyst
for the dcvelopment of other properties within the Central City North (the "CCN") Redevelopment
Project Area within the City, as well as
(a) millgatmg blight currcntly existing in such arca
(b) creating new cmployment opportunities within the region; and
(c) contributing to the expansion and/or extension of public serviecs and utili tics.
Thc tenn of this Dcvelopment Ab'Teement ('Tenn") shall commencc on the Eft~ctive Date and extend for
a period ending on the expiration or earlier tenmnation of the Lease
Regal shall have the vested right to develop the Property in accordance with the Development Code, as in
effect as of thc Effective Date and the other provisions of the DA and the Lease, including without
limitation the provisions of the "Vested Provisions."
The Vested Provisions shall not be amended, changed or modified in any manner by the City through any
action of the Council during the Term of this DA without the prior express written consent of Regal
havmg first being obtained, which written consent lnay be grnnted or denied by Regal at the absolute and
sole discretIOn of Regal.
Thc SBEDC joins m this DA to subject the respcctive parcels to this DA and for those parcels to receive
the benefits of this DA.
All of the benenls of the Vested Provisions and the DA apply to all of the Project (which includes the
Regal leased Parcel and the SBEDC Parcels) and all SBEDC Acquired Parcels, as covenants nmning with
the land.
The City has not adopted any "living wage ordinance" that would be applicable to the Regal tenancy or
the Thcatre or as to any other project or site within the City of San Bernardino municipal boundaries.
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ll.docx I Packetpg~43~
A "living wage ordinance" with1l1 the meaning of this DA is any requirement imposed by the City that
requires Regal to include any component of wages or other fornl of compensation in the wages or benefits
of Regal employees.
The provisions of this Section shall remain in full force and efI'ect from and after the Effective Date and
continue in effect during the Term of this DA with the result that no living wage ordinance as above-
defined shall be applicable to the Regal tenancy or the Theatre during the Term oflhis DA.
In the event any living wage ordinance is enacted on the basis that it is mandated pursuant to any State or
Federal low, rule or regulation, and in the event such living wage ordinance is uniformly applicable across
the State of California, such shall not be deemcd a "living wage ordinance."
However, in the event any living wage ordinance is enacted on the basIs that it is mandated pursuant to
any State or Federal law, rule or regulation, and in the event such living wage ordinance is not uniformly
applicable across the State of California, such shall be deemed a "living wage ordinance" and SBEDC
shall reimburse Regal on a monthly basis all additional costs incurred by Regal due 10 such living wage
ordinance, as provIded in the Lease (including Regal's right under thc Lease to offset such costs against
rent payable under the Lease).
For the Term of thIs DA the Cily al,'Tees lhat it will neither entitle nor approve any other motion picture
theatre with1l1 the municipal boundaries of the City otherwise pernlitted pursuant to the Vested Provisions
as contained in Development Code Chapter 1906 that has a seating capacity in any single motion picture
theatre (regardless of the number of auditoriums) equal to more than two hundred (200) seats nor having
any auditorium for the presentation of recorded movie productions of a square footage greater than three
thousand (3,000) square feet, without the prior written consent of Regal to be l,'Tanted or withheld 111
Regal's sole dIscretion. The City and Regal Jointly agree that such limitation is in the best mterests of
both parties to enable the Theatre to gain market acceptance in the Inland Empire Region based upon the
prior investments of public funds by the SBEDC and the City in the Property and the property leased to
Regal under the Lease.
Regal commits to
(i) use and operate the Theatre as a tirst class motion picture theatre as part of a system of
molion picture theatres operated by Regal and its subsidiaries and amhates),
(ii) not sacrifice the profits of the Theatre in an effort to revitalize any other business operatiuns
of Regal or any other subsidiary or affiliate thereof (with the understanding that proflls from
the Theatre W[1I not be Seb'Tegated or otherwise maintained separately from the protits of
other motion picture theatres and businesses of Regal and its subsidiaries and affiliales), and
(iii) abide by the terms of the Lease.
This DA shall be reviewed by the City at least once a year in accordance wIth California Government
Code Section 65865.1, on or before the anniversary dale of the Effective date of the lease and the SBEDC
shall pay to the City the actual cost incurred by the City in conductmg a periodIC review.
The DA may be amended or tcrminated with respect to any parcel within the Property only by wntten
agreement signed by the then current Owner of slleh parcel and the City atier approval by the Council
At such time that the SHEDC no longer owns any portion of the Project, the SBEDC shall no longer be a
party to this DA. At request of either Regal or the City, SBEDC shall provide written confirmation of its
nonownership position in recordable form reasonably acceptable to the SBEDC, proVIded, however, the
furnishing of such written confirmation is not required as a condition to SBEDC no longer being a party
to this DA, as such automatically occurs upon sllch non-ownership as reflected in the Ortieial Recording
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CommDev 11-28-
I Pa.cket Pg. 434
(' '..lk"lItl.,.,nt~ ,1I1.J S<.l\;Tl~,'.li~"li.a(L'-'~;11 ,)dtLll~,",.T~n\P')fJry lmem~l fik"CUIIlCtll UlJlk'l".'K(.]'H~f_\\Outline of DA for
7.D.a
of San Bcrnardino County, California. Nothing contained herein shall prevent thc SBEDC from selling,
conveying, or otherwise mortgaging all or any interest of the SBEDC in the Projeet.
EXHIBIT A
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PROPERTY
AP~ 0134-121-26-0000
Legal Description - MN 0134-121-26-0000
Parcel No.1 of Parcel Map 15038 in thc City of San Bcrnardino, County of San Bernardino, State of
Cali fornia, as per plat recorded in Book 186 of Parcel Maps. Pages 14 and 15, records of said County.
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ll.docx I · Pac~et p~435
I 7.0.a
ATTACHMENT D
LEWIS BRISBOIS BISGAARD & SMITH LLP
MEMORANDUM
Attorney Work Product Doctrine
TO:
Paul J. Beck
FROM:
Timothy J. Sabo
DATE:
December?, 2011
RE:
Regal Lease - CEQA Requirements
FILENO.:
25424-15
The San Bernardino Economic Development Corporation ("SBEDC") intends to lease
real property to a private entity (Regal). The lease provides for the renovation and use of an
existing theater building. It also provides that Regal must comply with all CEQA requirements
before obtaining the discretionary approval ofa public ageney for a project. We have been asked
whether the SBEDC needs to Wldertake environmental review of the lease prior to execution
pursuant to the California Environmental Quality Aet (Publie Resources Code sections 21000
through 21177 ["CEQA"]). Based upon the facts provided, it does not appear that environmental
review is neeessary for this transaction.
The SBEDC is a non-profit private corporation that is not part of or controlled by the
Redevelopment Agency. CEQA applies only to "discretionary projects proposed to be carried
out or approved by public agencies." (CEQA S 21080(a).) "Public agencies" includes only
"political subdivisions" of the state or localities, including redevelopm~"Ilt agencies. (CEQA SS
21062,21063,) If the lease were being made or approved by the Redevelopment Agency, the act
of leasing the property would be a project subject to CEQA environmental review. However,
since the lease is being Wldertaken by a private entity without need for approval by a public
agency, it is not a project. The only potential "projed" with respect to this property would be a
development agreement to be entered into and/or a conditional use permit ("CUP") for four
restaunmts to be issued in the future. Since those arc projects and the lease is not a project, entry
into the lease earmot be considered ''project splitting." We have found no authority to support
the proposition that the Agency's initiation of negotiations for the lease before the March, 2011
transfer of the property to SBEDC makes the lea~e a ''project'' under CEQA and therefore
subject to a ''project splitting" analysis.
The development agreement and the CUP may require environm~"Iltal review as required
by CEQA. In this case, after consideration and research, we believe that the Merger A EIR
addresses the then-known or anticipated CEQA impacts of the Development Agreement and
ct.JP for four restaurants. As a program EIR, that document was designed and intended to
address subsequent projects.
4811-3584-5390.1
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I Packet P!I.436 I
LEWIS
BRISBOIS
BISGAARD
& SMITH llP
ATlORNEYS AT lA""
650 East Hospitoli1y Lane, Suite 600
San Bernardino, California 92408
Telephone: 909.387.11 30
Fax: 909.387.1138
'W'NW.lbbslaw.com
TIMOTHY J. SABO
DIRECT DIAL: 909.381.7187
E-MAIL: SABO@LBBSLAW.COM
Dccember 8, 2011
Margo Wheeler
Director of Community Development
City of San Bernardino
300 North "D" Street
San Bernardino, CalifoTnia 92418
Re: Adoption ofRel!al Development Agreement
Dear Ms. Wheeler:
After preparation of the staff report, and based on discussions, we would like to make a
suggestion regarding consolidation of processing of the Regal Development Agreement and
adoption of the Redevelopment Code amendment associated with that Development Agreement. Of
course, we make this suggestion subject to your expertise.
As we read the law, Development Agreements in the City of San Bernardino are processed
pursuant to State law (Govt. Code Section 65864, et seq.) and Section 19.40 of the Development
Code. Section 19.40 provides that when thc City Council has approved a Development Agreement
Application and a Development Agreement has been prcpared, it will be adopted by a resolution
which contains eCltain findings.
In this instance, the Development Agreement will be accompanied by a Development Code
revision adopted by ordinance. State law allows a Development Agreement to be adopted by
ordinanee as well as by resolution. (Govt. Code Section 65867.5). Therefore, we suggest that you
consider recommending the adoption of the Development Agreement by using the same ordinance
as that which amends the Development Code. In addition to the Development Code amendment,
that ordinance would contain all the findings and other requirements set out in Section 19.40. An
ordinanee is a higher level of legislative enactment than a rcsolution, and may be used instead of a
resolution. (See, for example, Midway Orchards v. County of Butte (1990) 220 Cal. ApI" 3d 765).
Wc will be happy to provide you with further information or discuss this Viith you.
AnAN1A. ll~AUi\l1ONT. CI-V\.1{LES10N. CHICAGO. DALLAS. FORT ~UDERDALE. HOUSjON. WAYFffi -lASVEGAS. LOSANGGIS. NE:WOrtLEA.NS
NEWYOI~. NEWARK. ORANer COUNTY. PHOENIX. SACRAMENTO. WI BERN.A.RDINO. SAN lJl'CGO.:iI\N FRANCIS:::O. TAMPA. TUCSON
7.D.a
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I Packet'Pi!: 437
7.0.a
Margo Wheeler
DcccmbLT 8, 2011
Page 2
Very truly yours,
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However, in the event you do not wish to adopt one ordinance, Section 19.40 confirms that
the Development Agreement may be adopted by a resolution which makes certain findings and
which is subject to referendum, (Midway Orchards. supra).
Th<mk you again for your continuing assistance.
~~
Timothy J. Sabo of
LEWIS BRlSBOIS BISGAARD & SMITH LLP
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4821-42GO-9422,1
I ' Packet Pg'. 438 I
CA Codes (~ov:65864-65869.5)
Page 1 ~ 7.0.a
ATTACHMENT E
GOVERNMENT CODE
SECTION 65864-65869.5
65864. The Legislature finds and declares that:
(a) The lack of certainty in the approval of development projects
can result in a waste of resou~ces, escalate the cost of housing and
other development to the consumer, and discourage investment in and
commitment to comprehensive planning which would make maximum
efficient utilization of resources at the least economic cost to the
public.
(b) Assurance to the applicant for a development project that upon
approval of the project, the applicant may proceed with the project
in accordance with existing policies, rules and regulations, and
subject to conditions of approval, will strengthen the public
planning process, encourage private participation in comprehensive
planning, and reduce the economic costs of development.
(c) The lack of public facilities, including, but not limited to,
streets, sewerage, transportation, drinking water, school, and
utility facilities, is a serious impediment to the development of new
housing. Whenever possible, applicants and local governments may
include provisions in agreements whereby applicants are reimbursed
over time for financing public facilities.
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65865. (a) Any city, county, or city and county, may enter into a
development agreement with any person having a legal or equitable
interest in real property for the development of the property as
provided in this article.
(b) Any city may enter into a development agreement with any
person having a legal or equitable interest in real property in
unincorporated territory within that city's sphere of influence for
the development of the property as provided in this article. However,
the agreement shall not become operative unless annexation
proceedings annexing the property to the city are completed within
the period of time specified by the agreement. If the annexation is
not completed within the time specified in the agreement or any
extension of the agreement, the agreement is null and void.
(c) Every city, county, or city and county, shall, upon request of
an applicant, by resolution or ordinance, establish procedures and
requirements for the consideration of development agreements upon
application by, or on behalf of, the property owner or other person
having a legal or equitable interest in the property.
(d) A city, county, or city and county may recover from applicants
the direct costs associated with adopting a resolution or ordinance
to establish procedures and requirements for the consideration of
development agreements.
(el For any development agreement entered into on or after January
1, 2004, a city, county, or city and county shall comply with
Section 66006 with respect to any fee it receives or cost it recovers
pursuant to this article.
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65865.1. Procedures established pursuant to Section 65865 shall
include provisions requiring periodic review at least every 12
months, at which time the applicant, or successor in interest
I Packet Pg. 439
hltn://www.lellinfa.ca. Qov/el!i-binldisDlaveode')seetion=gov&~roLLD=6500 1-66000& Ii le=... 12/07/2011
CA Codes (gov:65864-65869.5)
thereto, shall be required to demonstrate good faith compliance with
the terms of the agreement. If, as a result of such periodic review,
the local agency finds and determines, on the basis of substantial
evidence, that the applicant or successor in interest thereto has not
complied in good faith with terms or conditions of the agreement,
the local agency may terminate or modify the agreement.
65865.2. A development agreement shall specify the duration of the
agreement, the permitted uses of the property, the density or
intensity of use, the maximum height and size of proposed buildings,
and provisions for reservation or dedication of land for public
purposes. The development agreement may include conditions, terms,
restrictions, and requirements for subsequent discretionary actions,
provided that such conditions, terms, restrictions, and requirements
for subsequent discretionary actions shall not prevent development of
the land for the uses and to the density or intensity of development
set forth in the agreement. The agreement may provide that
construction shall be commenced within a specified time and that the
project or any phase thereof be completed within a specified time.
The agreement may also include terms and conditions relating to
applicant financing of necessary public facilities and subsequent
reimbursement over time.
65865.3. (a) Except as otherwise provided in subdivisions (b) and
(c), Section 65868, or Section 65869.5, notwithstanding any other
law, if a newly incorporated city or newly annexed area comprises
territory that was formerly unincorporated! any development agreement
entered into by the county prior to the effective date of the
incorporation or annexation shall remain valid for the duration of
the agreement, or eight years from the effective date of the
incorporation or annexation, whichever is earlier. The holder of the
development agreement and the city may agree that the development
agreement shall remain valid for more than eight years, provided that
the longer period shall not exceed 15 years from the effective date
of the incorporation or annexation. The holder of the development
agreement and the city shall have the same rights and obligations
with respect to each other as if the property had remained in the
unincorporated territory of the county.
(b) The city may modify or suspend the provisions of the
development agreement if the city determines that the failure of the
city to do so would place the residents of the territory subject to
the development agreement, or the residents of the city, or both, in
a condition dangerous to their health or safety! or both.
(c) Except as otherwise provided in subdivision (d), this section
applies to any development agreement which meets all of the following
requirements:
(I) The application for the agreement is submitted to the county
prior to the date that the first signature was affixed to the
petition for incorporation or annexation pursuant to Section 56704 or
the adoption of the resolution pursuant to Section 56800, whichever
occurs first.
(2) The county enters into the agreement with the applicant prior
to the date of the election on the question of incorporation or
annexation, or! in the case of an annexation without an election
pursuant to Section 57075, prior to the date that the conducting
authority orders the annexation.
nlln' / /www.1evi nfoca. "ov/cl!i-binJdisolavcode')scction=gov&grollo=6500 1-66000&file=...
Page 21 7.D.a
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12/07/2011
CA Codes (gov:65864-65869.5)
(3) The annexation proposal is initiated by the city. If the
annexation proposal is initiated by a petitioner other than the city,
the development agreement is valid unless the city adopts written
findings that implementation of the development agreement would
create a condition injurious to the health, safety, or welfare of
city residents.
(dl This section does not apply to any territory subject to a
development agreement if that territory is incorporated and the
effective date of the incorporation is prior to January 1, 1987.
65865.4. unless amended or canceled pursuant to Section 65868, or
modified or suspended pursuant to Section 65869.5, and except as
otherwise provided in subdivision (b) of Section 65865.3, a
development agreement shall be enforceable by any party thereto
notwithstanding any change in any applicable general or specific
plan, zoning, subdivision, or building regulation adopted by the
city, county, or city and county entering the agreement, which alters
or amends the rules, regulations, or policies specified in Section
65B66.
65865.5. (a) Notwithstanding any other provision of law, after the
amendments required by Sections 65302.9 and 65860.1 have become
effective, the legislative body of a city or county within the
Sacramento-San Joaquin Valley shall not enter into a development
agreement for property that is located within a flood hazard zone
unless the city or county finds, based on substantial evidence in the
record, one of the following:
(1) The facilities of the State Plan of Flood Control or other
flood management facilities protect the property to the urban level
of flood protection in urban and urbanizing areas or the national
Federal Emergency Management Agency standard of flood protection in
nonurbanized areas.
(2) The city or county has imposed conditions on the development
agreement that will protect the property to the urban level of flood
protection in urban and urbanizing areas or the national Federal
Emergency Management Agency standard of flood protection in
nonurbanized areas.
(3) The local flood management agency has made adequate progress
on the construction of a flood protection system that will result in
flood protection equal to or greater than the urban level of flood
protection in urban or urbanizing areas or the national Federal
Emergency Management Agency standard of flood protection in
nonurbanized areas for property located within a flood hazard zone,
intended to be protected by the system. For urban and urbanizing
areas protected by project levees, the urban level of flood
protection shall be achieved by 2025.
{bJ The effective date of amendments referred to in this section
shall be the date upon which the statutes of limitation specified in
subdivision (c) of Section 65009 have run or, if the amendments and
any associated environmental documents are challenged in court, the
validity of the amendments and any associated environmental documents
has been upheld in a final decision.
(c) This section does not change or diminish existing requirements
of local flood plain management laws, ordinances, resolutions, or
regulations necessary to local agency participation in the national
flood insurance program.
httn.//www I~pin fn .c". vnv /clli-hinidisnlavcode?seetion=gov &grouo=6500 1-66000&fi le=...
Page 31 7.0.8
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1 2i07i20 I I
CA Codes (gov:65864-65869.5)
65866. Unless otherwise provided by the development agreement,
rules, regulations, and official policies governing permitted uses of
the land, governing density, and governing design, improvement, and
construction standards and specifications, applicable to development
of the property subject to a development agreement, shall be those
rules, regulations, and official policies in force at the time of
execution of the agreement. A development agreement shall not prevent
a city, county, or city and county, in subsequent actions applicable
to the property, from applying new rules, regulations, and policies
which do not conflict with those rules, regulations, and policies
applicable to the property as set forth herein, nor shall a
development agreement prevent a city, county, or city and county from
denying or conditionally approving any subsequent development
project application on the basis of such existing or new rules,
regulations, and policies.
65867. A public hearing on an application for a development
agreement shall be held by the planning agency and by the legislative
body. Notice of intention to consider adoption of a development
agreement shall be given as provided in Sections 65090 and 65091 in
addition to any other notice required by law for other actions to be
considered concurrently with the development agreement.
65867.5. (a) A development agreement is a legislative act that
shall be approved by ordinance and is subject to referendum.
(b) A development agreement shall not be approved unless the
legislative body finds that the provisions of the agreement are
consistent with the general plan and any applicable specific plan.
(c) A development agreement that includes a subdivision, as
defined in Section 66473.7, shall not be approved unless the
agreement provides that any tentative map prepared for the
subdivision will comply with the provisions of Section 66473.7.
65868. A development agreement may be amended, or canceled in whole
or in part, by mutual consent of the parties to the agreement or
their successors in interest. Notice of intention to amend or cancel
any portion of the agreement shall be given in the manner provided by
Section 65867. An amendment to an agreement shall be subject to the
provisions of Section 65867.5.
65868.5. No later than 10 days after a city, county, or city and
county enters into a development agreement, the clerk of the
legislative body shall record with the county recorder a copy of the
agreement, which shall describe the land subject thereto. From and
after the time of such recordation, the agreement shall impart such
notice thereof to all persons as is afforded by the recording laws of
this state. The burdens of the agreement shall be binding upon, and
the benefits of the agreement shall inure to, all successors in
httn. 1 Iwww.lel.info.ca.l!ov/cQi -hin/disnlavcode?section~gov& lIToun;6500 1-66000& fi Ie;...
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12/07/2011
C A Codes (gov:65864-65869.5)
Page 51 7.0.8
interest to the parties to the agreement.
65869.5. In the event that state or federal laws or regulations,
enacted after a development agreement has been entered into, prevent
or preclude compliance with one or more provisions of the development
agreement, such provisions of the agreement shall be modified or
suspended as may be necessary to comply with such state or federal
laws or regulations.
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65869. A development agreement shall not be applicable to any
development project located in an area for which a local coastal
program is required to be prepared and certified pursuant to the
requirements of Division 20 (commencing with Section 30000) of the
Public Resources Code, unless: (l) the required local coastal program
has been certified as required by such provisions prior to the date
on which the development agreement is entered into, or (2) in the
event that the required local coastal program has not been certified,
the California Coastal Commission approves such development
agreement by formal commission action.
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Relevant Sections of the EIR (SCH #2009111 ~~)
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San Bernardino Merged Area A - Merger and Amendments
Envlronmentallmpad Report
San IlrrmU' iR11
. South Coast Air Quality Management District: 1) Recommendations regarding the
analysis of. potential air quality impacts f.rom the proposed project that should be
included in the draft environmental impact report.
2.3 COMPLIANCE WITH CEQA
2.3.1
PUBLIC REVIEW OF DRAFT EIR
The Draft EIR is subject to a 45-day review period by responsible and trustee agencies and
interested parties. In accordance with the provision of. CEQA Guidelines Sections 15085(a) and
15087(a)(1), the Redevelopment Agency, serving as the Lead Agency: 1) publiShes a notice of
availability of a Draft EIR In newspapers of general circulation, which states that the Draft EIR
will be available for review at City of San Bernardino City Hall located at 300 N. "D" Street and
the Economic Development Agency located at 201 North "E" Street, Suite 301; and 2) prepares
and transmits a Notice of Completion (NOC) to the State Clearinghouse. Proof of publication is
available at the City of San Bernardino.
Any public agency or members of the public desiring to comment on the Draft EIR must submit
their comments in writing to the individual identified on the document's NOC prior to the end of
the public review period. Either during or following the close of the public review period, the
Redevelopment Committee will hold a regularly scheduled public meeting regarding the Draft
EIR. The public will be afforded the opportunity to orally comment on the Draft EIR at the public
meeting. Such comments shall be recorded and shall have the same standing and response
requirements as written comments provided during the public review period. Upon the close of
the public review period, the Lead Agency will then proceed to evaluate and prepare responses
to all relevant oral and written comments received from both citizens and public agencies during
the public review period.
2.3.2
FINAL EIR
The Final EIR will consist of the Draft EIR. revisions to the Draft EIR, responses to comments
addressing concerns raised by responsible agencies or reviewing parties, and the mitigation
monitoring program. After the Final EIR is completed and at least 10 days prior to its
certification. a copy of the responses to comments made by public agencies on the Draft EIR
will be provided to the respective agencies.
2.4 INTENDED USES OF THIS EIR
The Redevelopment Agency, as the Lead Agency for the proposed project, will use this
Program EIR in consideration of the proposed project. This document will provide
. . environmental information to several other agencies affected by the proposed project, or which
~are likely to have an interest in the proposed project. Various Slate and Federal agencies
ercise control over certain aspects of the study area. The various public, private, and political
. agencies and jurisdictions with particular inlerest in the proposed project include, but are not
limited to, the following: .
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Introduction Ind
PacketPgl 444
2~
San Bernardino Merged Area A - Merger and Amendments
Environmental Impact Report
While potential impacts to the freeway mainline segments and ramps have been evaluated and
mitigation measures suggested to reduce impacts, improvements to the freeway system are the
responsibility of the existing regional transportation agencies and not the City of San
Bemardino. Without the authority to implement the mitigation measures, the impact to freeway
segments would remain significant and unavoidable, requiring a statement of overriding
considerations.
City of San Bernardino Municipal Code. The City's Municipal Code consists of all regulatory,
penal. and administrative ordinances of the City of San Bemardlno. It is the method the City
uses to implement control and land uses, in accordance with applicable goals and policies. The
City of San Bemardino Development Code (Title 19 of the Municipal Code) identifies the
permitted land uses according to zoning category of particular parcels.
2.7 CEQA DOCUMENT TIERING
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Both the Public Resources Code and the CEQA Guidelines discuss the use of "tiering" 1:
environmental impact reports by lead agencies. Public Resources Code Section 21068.5 ~
defines "tiering" as: ~. g-
"The coverage of general matters and environmental effects in an environmental impact repe ~ ]
prepared for a policy, plan, program or ordinance followed by na"ower or site-specific' ..
environmental impact reports which incorporate by reference the discussion in any prior..' . ~
environmental impact report and which concentrate on the environmental effects which: (a) are ~
capable of being mitigated, or (b) were not analyzed as significant effects on the environment in a:
the prior environmental impact report. " iii
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Tiering is a method to streamline EIR preparation by allowing a Lead Agency to focus on the
issues that are ripe for decision and exclude from consideration issues already decided or not
yet read for decisions (CEQA Guidelines Sections 15152 and 15385). The concept of tiering
anticipates a multi-tiered approach to preparing EIRs. The first-tier EIR covers general issues in
a broader program-oriented analysis, including important program resource and mitigation
commitments required to be implemented at the project-level. Subsequent tiers incorporate by
reference the general discussions from the broader document, concentrating on the issues
specific to the proposed action being evaluated (CEQA Guidelines Section 15152).
First-tier documents are usually Program EIRs, Master EIRs, General Plan EIRs, Staged EIRs,
Redevelopment Plan ErRs. or similar EIRs. Second-tier documents are typically Project EIRs,
Focused EIRs, and Mitigated Negative Declarations that evaluate the impacts of a single activity
undertaken to implement the plan, program, or policy.'
When an EIR has been prepared and certified for a program or plan consistent with CEQA's
tiering requirements, a Lead Agency for a later project pursuant to or consistent with the
program or plan shouid limit the EIR on the later project to effects that were not examined as
significant effects on the environment in the prior EIR. In those situations where a
programmatic document does not specifically address and analyze the impacts and mitigation
measures necessary for a project-level action, the project-level environmental review can be
streamlined by tiering from the program-level documents. Agencies are encouraged to tier their
Ibid.
DRAFT. JUNE 2010
2.11
Introduction and Packet p{(445
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Environmental Impact Report
San t:PI'Darl inn
CEQA analysis to avoid repetition of issues and to focus on the issues for decision at each level
of review. Subsequent CEQA compliance involves either the preparation of an EIR or Negative
Declaration.
For purposes of tiering, significant environmental effects have been "adequately addressed" in
the first-tier document if the Lead Agency determines that the significant environmental effects:
. Have been mitigated or avoided as a result of the prior EIR and adopted findings in
connection with that prior EIR
. Have been examined at a sufficient detail in the prior EIR to enable those effects to be
mitigated or avoided by site-specific revisions, the imposition of conditions, or by other
means with the approval of the later project; and
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Cannot be mitigated to avoid or substantially lessen the significant impacts despite the
project proponent's willingness to accept all feasible mitigation measures, and the only
purpose of including analysis of such effects in another EIR would be to put the agency
in a position to adopt a statement of overriding considerations with respect to the effects.
In the case of this proposed project, a Final EIR was certified for the City of San Bernardino
General Plan in November 2005. The General Plan EIR analyzed the impacts associated with
implementation of the goals and policies contained in the City's General Plan that are intended
to guide growth and development in the City.
The General Plan EIR is considered a first-tier EIR. The EIR for this proposed project is
considered a second-tier ErR, and the analysis in this EIR has: 1) incorporated by reference the
General Plan EIR and 2) will tier the analysis in this ErR to focus on impacts not previously
analyzed in the General Plan EIR.
The first-tier EIR (General Plan EIR) provided analysis for the topics of: Aesthetics; Air Quality;
Biological Resources; Cultural Resources; Geology and Soils; Hazards and Hazardous
Materials; Hydrology and Water Quality; Land Use and Planning; Mineral Resources: Noise;
Population and Housing; Public Services; Recreation; Transportation and Traffic; and Utilities
and Service Systems.
For purposes of this EIR, the General Plan EIR has adequately addressed the proposed
project's impacts related to Agricultural Resources and Mineral Resources, as the growth
anticipated under the proposed project is consistent with and accounted for in the projected
growth anticipated under the General Plan. Topics to be tiered off the General Plan EIR in this
EIR (second-tier EIR) include Land Use; Population and Employment; Aesthetics; Traffic; Air
Quality/Greenhouse Gas; Noise; Geology and Seismic Hazards; Hydrology and Water Quality;
Hazards/Risk of Upset; Fire Protection; Police Protection; School Facilities; Parks and
Recreational Facilities; Water; Wastewater; Solid Waste; and Electricity and Natural Gas.
This second-tier EIR will be used by the Lead Agency (Redevelopment Agency) to evaluate the
proposed project's environmental impacts, and can be further used to modify, approve, or deny
the approval of the proposed project based on the analysis it provides.
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Introduction Ind
Packet. Pg. 446
2-12
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San Bernardino Merged Area A - Merger and Amendments
Environmental Impact Report
PROJECT AREA MERGER
CRL Section 33485 states that "Mergers of project areas are desirable as a matter of public
policy if they result in substantial benefit to the public and if they contribute to the revitalization
of blighted areas through the increased economic vitality of those areas and through increased
and improved housing opportunities in or near such areas." Furthermore, CRL Section 33486
states that project areas may be merged, without regard to contiguity of the areas, by the
amendment of each affected redevelopment plan as provided in CRL Section 33450. Before
adopting the ordinance amending each affected redevelopment plan, the Mayor and Common
Council must find, based on substantial evidence, that both of the following conditions exist:
1. Significant blight remains within one of the project areas being merged.
2. This blight cannot be eiiminated without merging the project areas and the receipt of
property taxes.
3.6.3
PROJECTS AND PROGRAMS TO ELIMINATE BLIGH""
This section provides a description of the projects or programs proposed to eliminate the
remaining blight, how they will improve the conditions of blight, and the reasons why the
projects or programs cannot be completed without the Merger and Amendments.
While the Agency has been effective in eliminating blight through public facilities and
infrastructure improvements, site acquisition and clearance, and new construction and
rehabilitation projects, significant blight remains prevalent throughout Merged Area A, as
detailed in Section A of the Preliminary Report. The Agency will continue to carry out consistent
projects and programs in Merged Area A, but seeks to augment its financial capacity to continue
to implement a corridor-based approach to the elimination of blight. Rather than focusing on
piecemealed projects within individual Project Areas, the Agency's focus is to address blighting
conditions along key corridors In Merged Area A (e.g., Waterman Avenue, Baseline Street,
Arrowhead Avenue, Hospitality Lane, Orange Show Road), and invest in the revitalization of the
City's "Downtown Core." The Downtown Core is generally bound by 6th Street to the north,
Waterman Avenue to the east, the 1-215 Freeway to the west, and Rialto Avenue to the south.
It encompasses the southern half of Central City North, almost al/ of Central City East and
Meadowbrook/Central City, and a northern portion of Central City South.
DOWNTOWN CORE VISION/ACTION PLAN
The Downtown Core is currently home to local, regional, state, and federal government centers
(e.g., City Hall, County administrative offices, Courthouse, IRS, Consulate General of Mexico),
~he San Bernardino Convention Center, an emerging Theater District, Carousel Mal/,
educational and workforce development centers, a public transportation hub, Seccombe Lake,
ordable housing, and other new development projects. To cast a strategic vision for the
revitalization of the Downtown Core, the City and Agency recently completed the Downtown
Core Vision/Action Plan in summer 2009, which created a visual simulation of the Downtown
Core's redevelopment potential. Key elements of the Downtown Core Vision/Action Plan
,
Source; Preliminary Report. San Bernardino Merged Area A Merger & Amendments; April 5, 2010; prepered by
Rosenow Spevaeek Group.
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DRAFT. JUNE 2010
3-16
J Packet P9' 447
Project Oe .
:'IlW
-01.
San Bernardino Merged Area A - Merger and Amendments
Environmental Impact Report
7.D.b
include a new inter-governmental civic center complex, a courthouse building, a night-time.. .
entertainment Theater District with retail and restaurant uses, a transit village, Court Slre~e'.. . I
Square, a Main Street retail corridor, a new hotel to complement the Convention Center, arrt .::::
new Seccombe Lake and Meadowbrook Park residential and mixed-use development projects. . ~
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The Downtown Core Vision/Action Plan casts a long-range revitalization strategy that will'. ~
require significant public-private investment and redevelopment tax increment financing to c;
assemble land for development, upgrade public infrastructure and utility systems to meet g>
increased service demands, create new parks and public transportation systems to serve future ~
residents and visitors, and build affordable housing to create a balanced community. The ~
,
catalyst projects and accompanying infrastructure improvements envisioned by the Downtown :::
Core Vision/Action Plan will eliminate blighting conditions by creating jobs, increasing income ;:
levels, assembling and redeveloping blighted properties, replacing aged infrastructure, ~
addressing incompatible uses, increasing property values, remediating environmentally :R
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contaminated sites, reducing office and retail vacancies, creating needed commercial facilities, ~
and addressing uses that contribute to the threat to the public health, safety, and welfare of _
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The proposed Merger and Amendments will allow the Agency to leverage and pool tax
increment revenues from the affected Project Areas to implement the Downtown Core
Vision/Action Plan for the benefit of the entire Merged Area A. New tax increment revenues
generated from increased property values resulting from property revitalization can be invested
toward additional public improvements in the Downtown Core and other parts of Merged Area A.
The Agency estimates $75 million in project costs for implementation of the Downtown Core
Vision/Action Plan through the life of the Merged Plan. The proposed 1 O-year extensions of the
Central City North and Meadowbrook/Central City Project Areas are needed to: (1) allow
sufficient time for the Agency to implement the long-range objectives of the Downtown Core
Vision/Action Plan in those Project Areas, particularly given the current temperature of the real
estate market; and (2) create sufficient financing capacity in those Project Areas as
redevelopment proceeds to finance public facilities and infrastructure upgrades and facilitate
key catalytic development projects. The proposed increases in the Agency's limitations on tax
increment collection and bonded indebtedness will ensure that the Agency has sufficient
financing capacity to fund redevelopment activities throughout Merged Area A, including the
Downtown Core.
Given the current economic climate and troubling trends in the real estate market,
implementation of major programs like the Downtown Core Vision/Action Plan cannot
reasonably be expected to occur either by private enterprise or governmental action alone, but
oniy by leveraging the unique redevelopment powers and financing capabilities of the Agency to
create public-private enterprise activities. This is especially true now as the City struggles to
address its own general fund budgetary gap. With little to no new revenue streams available to
implement the Downtown Core Vision/Action Plan, the City will rely heavily on the Agency to
secure funding for next steps under the Plan. With increased financial responsibility to carry out
major projects and programs in Merged Area A, the proposed Merger and Amendments is
necessary to ensure the Agency has adequate financial capacity and tools to see these
revitalization activities through to successfui completion.
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3-17
Project Oese Packet Pg. 448
San Bernardino Merged Area A - Merger and Amendments
Environmental Impact Report
San HI'I'lIm ; RII
In total, the redevelopment potential within the Project Area is:
. 5,681,674 square feet of commercial (retail, general, office, lodging) uses
. 518,916 square feet of industrial uses
. 1,833 multi-family residential units
Table 3-5
Identified Near.Term Redevelopment Projects
Activity DelcriDifon Prolect Arealsl
Carousel Mall Redevelopment Project: Investigate possible new uses at Carousel Central City Projects
Mall as identified In the Downtown Core Vision/Action Plan, including a potential new
government center and urban retail and housina uses to comolement existina retail.
Heritage Square: Develop Court Street as the .Heritege Square" District as identified Central City Nortl1
by the Downtown Core It1sion/Action Plan.
Redevelopment of Former Military Facilities: Enter into an agreement with a Central City Projects
developer for demolition/site clearance of former military faciiities at Third Street and
Waterman Avenue for neighbortlood-supporting retail uses.
Seccombe Lake Village: Development of 12.5 acres of land into mixed use Central City Projects
development of high and low density residential and retail on the nortl1east comer of
Sierra Avenue and 5" Street.
Anrowhead Credit Union Headquarters Campus: Continue to work with Arrowhead Central City Projects
Credit Union for relocation of corporate facilities. Arrowhead Credit Union has acquired
undeveloped and dilapidated properties to the west of the above site to provide
additional space for a third buiiding for the Arrowhead Central Credit Union Corporate
headouarters camous site.
i Theater District Implementation: Studies, improvements, and impiementation Central City North
I aelvities to create a Downtown Theater District and development of retaiVrestaurant
Dads.
, sbX Implementation: Facilitate implementation of the sbX Bus Rapid Transit Project Central City Nortl1/ Central City
in the Downtown Core, including transit-oriented development and brown fields Projects! ALL
assessment! remediation.
Intermoda' Transit Stallon: Design and construction of an Intermedal Transit Station
located at the Southwest comer of Rialto and E Street on a vacant4.5-acre parcel to
replace current bus transit mall along 4. Street.
sbX Transit-Oriented Development: Study and enter into development agreements
for transit-oriented develoDment Dreiec!s along the sbX line.
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3.7
ASSUMPTIONS FOR ENVIRONMENTAL ANALYSIS
As noted in Section 2.0, Introduction, a Program EIR has been prepared for the proposed
project, described above in Section 3.6, Proiect Characteristics. As such, this Program EIR has
reviewed the overall development potential for both vacant land and identified near-term
redevelopment projects; however, site-specific impacts with the near-term redevelopment
projects or specific capital improvement projects have not been reviewed.
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DRAFT. JUNE 2010
J.22
Project Desl.' Packet Pg;'449~ I
San Bernardino Merged Area A - Merger and Amendments
E,.'~"m",'" 1m"" ..peA
Subsequent individual development projects and/or capital improvement projects proposed':,","',".'
within the City will be reviewed in the context of this Program EIR and the General Plan EIR to '.
determine if additional environmental documentation is required. If the subsequent project
would have sjte-slLecifiG-environm!f1taLeffectlLnoLa~9!_essed in the Program EIR andlor
General Plan EIR, additional environmental review will be required. Where no new effects anti
no new miti9lltion measures arein'yolved. the subsequent project can be approved without
additioiiarenvironmenta'-documentation. - Where an EIR or Mitigated Negative Declaration
(MND) is required for a subsequent project, the EIR or MND should implement the applicable
mitigation measures developed in the Program EIR, and focus its analysis on site-specific
issues not previously addressed.
3.8 PHASING
Individual improvement and redevelopment projects would occur in incremental phases over
time, based largely on economic considerations, financial feasibility, infrastructure
improvements, market demand, and other planning considerations. The phasing and exact
details of each project would be evaluated by the Agency on a case-by-case basis.
3.9 AGREEMENTS, PERMITS, AND APPROVALS
Following a determination that the Rnal EIR is adequate and certification of the Final EIR by the
Community Development Commission, a Notice of Determination (NOD) would be issued by the
Agency. In addition, adoption of the proposed San Bernardino Merged Area A Merger &
Amendments would be the responsibility of the Mayor and Common Council. Redevelopment
projects. to the extent not already analyzed in accordance with the proposed project, could be
subject to additional environmental review on an individual basis, in accordance with the
provisions of CEQA Guidelines Section 15168, as determined by the Agency.
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DRAFT. JUNE 2010
3-23
Projoct Dill . Pac.kat Pg. 450 I
7.D.c
Mitigiated Negative Delcaration for CUP97-01
Discussion of Environmental Em/uation and l\Iiti~alion Measure.
The following substantiation of findings in the Em'ironmental Checklist Fonn follows Ihe same order of presentation as found u,
Section B of the Checklist. A short summary of the en,'ironmental selling for the resouree is presenled as background infonnatio~
the subslantialion discussion. References 10 the subslanlialing infonnalion are provided at the end of each topic.
1. Earth Resource.s
Environmental Selling
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Topographically, the projecl sile is essentially Oat wilh a 1-2% slope 10 Ihe soulh. The sile is underlain by alluvial sediment deposi ~
by nmolTfrom lile San Bernardino Mountains. Hislorically, the projeCI site, localed on the west side of"E" Street between Fourth a iii
Fifth Streels, has been occupied by Struclures, bulat present seveml vacanl /Ols exist where structures have been demolished a g>
removed. Parking areas cover aboUI 20% of the existing project site and three buildings wilh approximately 20,000 square Ii !!:.
encomp:lSS the remainder. Based on a review of geologic litcmture, Ihe City General Plan and other documents, the nearest kno,m fal ~
is the San Iacinlo Fault located about Y.. 10 one mile west of the project sile. No active faults are OCcur in the project area. The site ~
E'l subject to ground shaking when an earthquake occurs in Ihe region and more particUlarly on lhe Ihree nearest faults: San Andreas, 5< ::
'i Iacinto, and Cucamonga Faults. Figure 46 in Ihe General Plan indicates the site may be e.\'posed 10 maximum credible grau, ~
..1 accelerations of between .6g and .8g based on Ihe assumed maximum credible e.1rthquakes on each of these Ihree faults. The Gene, ~
...., PIan (Figures 48 and 51) indicates thai the project site may be affecled by two geologic haz.1rds: liquefaction and subsidence. No olhe ~
U geologic hazards are known to alTectlhe project sile. :t
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The e.'<llct amount of eanh movemenl on the projecl sile has nOlyet been delermiaed for Ihe SBEC Project. However, given th, Qj
type of structures, no e.xtensive foundmion work will be required to conslructthe four buildings and support facilities. It i, ~
probable that less than 500 cubic yards of cui and fill will Occur as part of Ihe grading and compaction of IIle site. Althougl ~
a substantial amounl of soil malerial may be disturbed on the project site as individual structure foundalions are construCled, ~
the final grade will be comparable 10 111.11 which currcnlly c.XiSls. Allhe complelion of grading, the sile will remain essentially ~
flat wililjUSl enough slope to provide for continued adcqu.1le dra;'~1ge of the property. No steep slopes ,viII be created as a resull _
oflile proposed grading activilies. B.1Sed on lhe e.xisting slope of the property and lack of any polential for change in topography C?
and creation of steep slopes on Ihe property, the polential impact from project grading is considered a nonsignificant impact. l;;
POlential wind and water erosion are addressed in subsequenl sections of this documen!. The infonnation provided in this g;
discussion was oblained from re,'iewing geologic literature ciled below, from a review of Ihe City General Plan and Technical ()
Background Report, from a field inspeclion of Ihe project sile, nnd from discussions wilh Ihe EDA and project developer. No ~
mitigation is Proposed or required, ::;:
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The project sile has been hislorically gradcd and compacled. aad is essentiall)' Oal. (A'erall slope oflhe land in this area is :E
approximately 1.2% to the soulh. No slopes grealer than 15% exist allhis sile. TI,e infonnation provided in this discussion :E
was oblained fromlbe San Bernardino Soulh. U.S.G.S. 7.5' Topographic M"p and 3 field inspeclion of the project site. tIl
The project site is nallocaled \\;Ihin :my Alquisl-Priolo E.1nhquake Faull Zone (ERZ) as illuslrated on Figure 47 of Ihe General
Plan. TIle nemeSI ERZ appears 10 be underlain b)' Ihal for Ihe San Jacinlo Faull Syslcm. located appro,ximalely one mile wesl
ofli,e project sile. Tile Glen Heleu Fault, which is known to be aClive, is buried and m3)' be localed about V, mile west of Ihe
project site. No polenlial for addilional adverse imp:,cls due 10 fault relmed ground rupfure ha7.1rds is forecast to occur. No
mitigmion is PropoSed or tcquired for lhe proposed aClil'il)'. The informal ion provided in Ihis discussion was obtained from Ihe
City of San Bernardino Gcneral Plan. Tcchnical Background Repon and Final Environmenlallmpacl Report.
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No unique gCOlogic or ph)'sical fe:Hurcs are known 10 OCcur wilhiulhe projcct bouadarics. Thc project sile has been hislorically
disluzbcd and the proposed SBEC project will nOI aller auy geologic fcalure nol previously disturbed. Therefore, no polential
for adverse impaclto such fealures Can occur. The inform;uion provided in this discussion was oblained from a field re,'iew
of the project site and Ihe Cily of San Bernardino Gcneml Plan. Technical Background Report aad Final Em'ironmenrallmpacl
Report.
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The projecl sile is nOllocated in an area Wilh defined high pOlelllial for wind or waler erosion. A field review of lhe
indicalts IIlat il is essentially lIat. TIle sile and surrounding area arc dc, 'eloped "ilh Struclures and urban landscaping. Fin'
Ihe projecl site exhibits no signs of erosion. Therefore, no polenlial for significant erosion impact is forecast to occur,
information provided in this discussion WaS obtained from a field review of the project site and Ihe City of San Bernarc
General Plan, Teclmical Background Report and Final Environmenlallmpacl Report,
I.f.
Based on a site field SUIVey. the project site docs not contain an)' channels, creeks or rivers. A review of Ihe topographic n ::::
for the project area shows that the nearest channels arc L)'t1e Creek, about Iwo miles WeSI and south and Warm Creek, ab ::l
one mile to Ihe ..,Sl. Therefore, no potential ad,'erse impact to any channel, creek, or river will OCCur iflhe SBEC Projec ~
implemented. TIle infonn.1tion provided in this discussion was oblained from a field review and the grading plan and a revi ,!:
oflhe San Bernardino South 7,5' Topographic Map, ()
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Due to the shallow slope oflhe project site and surrounding area, no potenlial exists for landslides or mudslides to OCcur ons ~
or 10 afTeclthe propcny from ofTsite, However, the project sile is identified as being subject 10 polenlially significanl grou N
shaking from regionM earthquakes and as shown on Figure 48 of Ihe General Plan. it is also identified as being subject c;>
~
subsidence relaled to eilller ground shaking or Jowering oflhe water table, Based on the prescnt depth to ground water at II ~
lceation, more than 100 feet, the potenlial for subsidence is considered 10 be low. The City considers these types of scism ~
hazards to be subject to standard engineering mitigation and nOl a significant adverse environmemal impact. However, E
ensure the stmctural haz.1lds relMed 10 ground shaking, subsidence. and liquefaclion the following mitigation measure sh, ~
"-
be implemented: :f
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Pursuant to and in compliance with the City's 'Liquefaction Drdlnnnce (MC-G7G), the allplicant shall have ~
qualified geotcchnical professional (Engineering Geologist or Professional Engineer) prepare a geotechnicl &.
study orthc Jlroject site prior 10 compleling the final design of the structures. As ,Iart or this geolechnical stud) .2
the IIDtential for ground .hal,ing, subsidence and lilluefaction impact. .hall be in"cstigated ror this site and, i ~
required, measu,'es 10 mitigate JlOlential ground shaldng and liquefaction hazards shall be identified. Thl C
illl'cstigation .hall include an e",lIl1alion or hi.toric w:ller table leI'Cls :lnd Ihe role that a rising water table coull .:..;
Illay in potentia' for liquefaction. The apJllic:lnt sh:lll implement Ihose mea.ures required to protect th, ~
slructures rrom signiliC'lIlt ground sha"ing, sllusidence, :lIld Iilluef:lction hazard.. For Ihis ,"ojeet, reducet =-
below a significant illlp:lCI shall he hllsed on a design thai protecls life and minimizes damage to Ihe structure., ;;
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The infonnmion pro,ided in this discussion \lTIS oblained from the eil)' Geneml Plan doculllenls and the San Bernardino Valley
Water Conservation District Annua' Repor!.
As noted in the prel'ions discussion, Ihe proieet site nw,' be exposed to high liqnefaction susceptibility, This is based on
histOricall)' high ground water table ond allu\'illl deposits which could be conduci\'e to IiqlleC.,clion, A review of current ground
water dma ("Son Bemordino Valley Water Conse/valion Dislricl Annual Engineering Investigation and Report (7/92 _ 6/93)") :
indicates IImt the CUITenl c1c\'ation of grOllnd W:!ler in Ihe projecI arca is 9-10 feet. The project site is situ:!led at approximalely ;g
1050 feet elevalion. Based on the deplh 10 ground \I'aler atlhis local ion. more than 100 feCI. the potential for liquefaction is ~
w
very low, Miligalion measure I.g, I \I ill be implementcd 10 ensnre thot hllmanlife and stmctllres arc protected from extreme .;.:
ha7""ds dllring a Illajor seismic e,'ell!. No :ldditionalmitigation is required. c::
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The in[onnalion provided in III is diseussiou \IllS oblained from the eit.\' General Plan documents and the San Bernardino Valley
Wmer Consell'mion Districl Annua' Report.
References
1.1 No other Earth Resource issues h:II'e ocen identified that \lould be alTccled or would alTectthe project.
&r1ugno, E.J. Dnd Spilll..y, T,E.. 1986. G':l}/ol!i..: ~l:tn oflh... S;Jlllkmardilhl Oll:ldrarll!it.'. ,~"ap 1\0. J:\ (U~ology), S..:-al... 1:250,000
Cil)' ofSa/l Ikn1.3rdillo. 1989. in:d .IlI'jromn':l1la] 1m a\.1 Ih- '011 ('i,v llf S;lll Il.."martrillll (j"'lI\.'mll'bn
CilyofS;m &'T1urdino. 1989. G':I1('ral P1.11l.
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CityorSan&nwdino. 1982. C'l rr\;1nn~.,
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vnti :llinn_
7:' .6193.
G~im<< Support Serviccs, Inc.. 1993. '3
2. AIR RESOURCES
United States Geological Survey. 1967, Phofore\ilk:d 1980. San D...n13rdino Soulh Quadflmgl~. COllifllmia. 7.5 Minulc S..'ri~ (Topogr:tphic).
Environmental Setting
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The Cil)' of San Bernardino is in the San Bernardino COUnl)' pan ion oflhe South Coasl Air Basin (SCAB). a 6,600-square-mile ar .~
encompassing Ornnge Counly and lhe non-desert portions of Los Angeles, Riverside, and San Bernardino Counlies. Bounded by t ~
Pacific Ocean to Ihe west and Ihe San Gabriel, S,m Bernardino, and San J"cimo mounlains 10 Ihe nonh and east, its topogrnphy a; ~
dimale make Ihe SCAB particularly conduci,'e 10 the form,,,iou and relemion of air pollulion. ~
Meteorology
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The strength and localion of a semipennanelll, subtropical high pressure cell over the Pacific Ocean primarily controls Ihe SCAB c
dimale. Climate is also affected by Ihe modernting elTecls of dilTerenli,,1 heming belween Ihe land area of California and Ule adjacc. ~
Pacific Ocean. Wann summers, mild winter, infrequelll rainfall, moderale daytime onshore breezes, and modernte humidilic ~
characlerize local climatic condilions. c,
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Because Oflopographic features and distance ITom Ihe oce"n, various microclimales exist wilhin the overall climale oflhe SCAB. Sine CI)
the modernting marine inlluence decreases wilh dislance fromlhe coast, mOnlhly and annual spreads belween tempernlures are greales a
inland. Precipilation is highly variable sc,1son.1I1y. Summers are oHen complelely dr}' Ihroughout Ule SCAB. There are frequent period: 0
Gi
offour to five mOnlllS willt no rain. In ";nlcr, Slorm froms (lOll' pressure systems) periodically sweep across lhe Pacific Ocean bringin! >
CI)
rain. Annu.ll rnin&111 is lo\\'est in the coastal plain and inland ,'allcys, higher in the fOOlhills, and highesl in Ihe surrounding mounlains C
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Predominanl wind pallerns are broken by occasional winter Slorms and episodes of Sama Ana winds. The laner are strong nonherly
or nonh<<1sterl}' dry winds Ih,,, originale from Ihe desert or Ihe Great Basin, primarily during Seplember Ihrough March followiug the
pass"ge of low pressure s)'slems. Highest wind speeds in the projecl "'ea OCcur "'Ihis hme when the clockwise wind circulalion in lhe
syslem produces a north or northeasl now as Ihe air is pushed soulhward O''Of Ihe San Bernardino Mount"ins and funneled Ihrough the
passes. Over the 26-year monitoring period al NOrian Air Force Base. Ihe ",'erage oflhe highesl gusl recorded each )'ear was 57 miles
per hour. Sanla Ana \lind condilions OCcur about fi,'e 10 len limes per vear, with each OCcurrence lasting for" fell' hours to a fell' days.
Winds across tile project area control bollllhe inilial dilulion nile of locall)' gencnlled "ir pollulanl emissions and Iheir regionallrajeeto!)'.
/n general, average wind speeds arc lower in the inland valleys Ih,m along Ihe eoasl because se"s breezes are weaker by Ihe lime they
re.1eh the project arc.1. Wind speeds lIleasured III Norton Air Force Base over a 26.)'ear period averaged four miles per hour. Winds OCcur ::
from all directions, wilh more Ihan 43% coming from the weSI. west sonthwesl, or sonlhwest. Winds from Ihis direction OCcur during :is
the d.1)'. At night, the wind now p"Uern re,'erses, with "n offsllOre now generally coming from the easl or northeast. Nighl winds are ~
slo\\'er U,an d.1}1ime breezcs off the ocean. Onshore bl'CC'lcs arc strongesl in SUlllmer and nighllime drainage winds arc Slronger in winler W
lh"n in summer. i
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The climate ofllle proposed Projecl site in downlown San Bernardino is less affecled b)' the modefllling elTects of lhe Pacific Ocean than ~
are coastal areas in Los Angeles and Orange eounlies. Therefore, differences bel ween summer and winler tempera lures are more ~
e.\1reme. Avernge lemperntures in and ne.1r San Bcrnnrdino range from a minimulll of 37 degrees F in Janu,,!)' to an average maximum ~
<:>
of 97 degrees F in July. Dnring a 91.)'e"r reporting period ending in /980, annual rainfall al San Bernardino averaged 16.57 inches, ,.:.
wilh a maximum annual rainfall of 21.69 inches and a minimum of 7.36 inches. The project area receives slighll)' higher volumes of ~
rain due to the eh"nge in topogrnph)'. Abaul 20 inches of rnin fillls on the projeCI are" on Ihe avemge. 13
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Locali7.cd meleorologic.11 conditions can create areas or high POllul'"11 eoncentmlions by hindering dispersal. Temper"'ure ilwersions,
which "rc lempcrnlures that increase \1;111 aliilude inslead of decreasing. h:llnper dispersion by trapping air pollutants in a limiled ,'olume
of airspace near the ground. For example. the highesl concentrations of carbon monoxide OCcur during winler when lemper:llure
inycrsions arc lower and slronger (more resist ani 10 dissipation b)' ground hcaling).
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Fonn.,tion ofltigh ozone concenlralions requires adequ.lIe sunshine, early morning stagnalion in source are.,s. high surface temperatUl
slrong and Jow morning inversions, greatly restricled ,'cnical mixing during the day, and da)lime subsidence thaI strengthens
inversion la)'er. Because of ozone's long formalion lime in lhe mmosphere, ozone concenlMions are substantiall)' affecled by WI
lranspon patterns.
High rtitrogen dioxide 100'els USUllII}' OCCUr during Ihe alllumn or winler on days wilh summer-like weather condilions, but when sunli!
is not sufficiently intcnsc to fuel the pholochemical re.,clions bel",:en oxides of rtitrogen and reactive organic compounds Ihat fonn OZOI
Ul
Particulate concentrations vary scasonall}' with the summer monlhs having high coacentrations of secondarily-fonned paniculates d co
10 cherrtical interactions driven by intense sunligh~ and lIinler inversions tmpping primary emilled paniculates. Violations ofpanicul~ ~
ambicnl air quality standards OCCur during all seasons, with Ihe highesl concentmtions in the summer, <3
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Ambienl Air Qualit)' Ol
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Contaminant levels in air samples are compared to nmional and stme slandards, shown in Table I, to detennine ambienl polluta; ;;;
concentralions. Air quality standmds are sot by the U.S. Em1mrunenlal Protection Ageney (EP A) and Ihe California Air Resources Boal ~
(CARB) at levels 10 protecl public health and welfare wilh an adequ.1le n"1rgin of safely. There are nalional and Slate standards for owr ::
(0,), cubon monoxide (CO), rtilrogen dioxide (NO,), PM" (suspended paniculate maner 10 microns or less in diameter), sulfur dioxid ;
'.' (SO,), and lead (Pb). TIle Soulh Coast Air Qualil)' Management Dislricl (SCAQMD) also measures for compliance with two olher Slal E
standards: sulfates and visibility. The federal EPA is prescntly in Ihe process of reviewing new ozone and particulale (2.5 micron ~
dimneter) standards, bUllhese standards are nOllikely to be approved aad implemented during lite review of this project so they will nc :f
be considered in this anal}'sis, _
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Ozone (0,), a colorless toxic gas which forms in Ihe almosphere through a photochemical reaclion of reaclive organic compounds am &.
r; nitrogen oxide. irritates Ihe lungs and damages formation of ozone. PM" is small particulale malter less lhan 10 micromelers ir ~
'I diameter. Carbon monoxide (CO) is a colorless gas which interferes with the tmnsfer of o"J'gen to Ihe brain, Nilrogen dioxide (NO,: ~
is a reddish-brown gas which can Cause brealhing dimcllllies al high concenlralions and which also contribules 10 Ihe small paniclel 0
thai C.1Uses a gremer heallh risk than larger paniclllate matler since tine particles more ""sily penelrate Ihe defenses of the human .:.;
respiratory system and cause irritation by themselves and in combin:llion wilh gases. ~
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The SCAQMD samples ambient air at monitoring slations in and around the Soulh Coast and Southeast Desen Air Basins that are within 0.
its jurisdiction. Nalional and slate slandards for ozone, carbon monoxide, nilrogen dioxide, and PM" and Slale standards for visibility B
:', are regularly exceeded in Ihe SCAB. In 1993, the peak ozone reading in Ihe SCAB was almosl three times the National Ambient Air 0
L; Qu.1lily Slandmd (NAAQS). TIle Los Angeles urban arca c.,cecds Ihis slandard morc frequently than an)' other area in the Uniled States, ~
and also records the highesl peak readings.
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Stand.1rds for carbon monoxide are c."cecdcd in morc densely populated Los Angeles and Ornngc counties, but not in Riverside and San :c
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L; Bernardino counties. Los Angeles Count)' "ns Ihe onl)' area in the nation which exceeded Ihe nalional annual nitrogen dioxide standard, ><
bUllhc SCAB WilS dctcnnincd 10 be in compli:lI1cc "1111 (he fcdcralllilrogcn dioxide sl3ndnrd. Le. <lllflinmcnt. in 1995. The stale nitrogen W
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dioxide one: hour sland:lrd is exceeded in both Los Angeles ,lIld Omngc coullties. The number of readings over Ille stHle standard l:
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Oucluatcs frolll year 10 )'c;lr, depending on weal her p:JIlerns E
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PM'O le"els regularly exceed nnlionnl and slnte sland:lrds in Los Angeles. Rh'crsidc, and San Bernardino counties, and state standards
in Ornngc Count)'. Sulfur dio:\idc and IC:ld lc\'cls in nil areas of the Bnsill arc below 0;:1Ii0l1nl nnd SUHc standnrd limits.
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4.2.1.4 Attainment Areas
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Local Air Quality
San Bernardino and Rh'erside counties are designated as allainmenl areas for both slale and federal carbon monoxide standards. 01
the Los Angeles and Orange County ponions of the Bnsin are dcsignated as federal and stale non-allainment areas for CO. Weath,
adjusted CO concentrations in the SCAB declined by 47% between 1976 and 1990, and are projecled to decline further because ofn,
CO smndnrds on ,'e1ucles and use of O~)'gcnated fuels in winler. The federnl one-hour slandnrd has not been exceeded anywhere in t
Basin for more than five ye.1rs, butlhe more slringenl slale-one hour slandard is occasionnlly exceeded and the s~1le and federal eigl ;:
hour standards are frequcntly excecdcd Ihroughoul Los Angelcs nnd Ornnge counlies. Highest concentrations of CO and the me ~
exceedances occurred in Lynwood in Los Angcles County Ol'cr the past f1,'e years. g.
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The CARB divides the stnle inlo air b.1Sins. b.1scd upon similnr mctcorological conditions. The SCAQMD maintains monitoring stal.
Ihroughout the South Co.1St Air Basin and the ponions of the SOUlhenst Descrt Air Bnsin Ihnl il administers to record ambient level
regulated pollutants. Ifnny monitoring sIal ion in an nir basin records concenlralions of an nir pollulant whicb exceed Slnte or fed
nirqunlity StJIndards, the enlire basin is generally detennined to be .1 non-allaimnent nten for Ihat pollutant. As long as no violaliol
an nmbienl airqualily StJIndard occurs, a basin is delennincd 10 be in allainmeal. Carbon monoxide, a pollulant where highest ambi Ul
air concentrations occur in Ihe immediale vicinily of the Source of emissions, is now treated somewhal differenlly by the eAl ~
dcsign.1tion ofat~1imnent and non-allainment are.1S for carbon monoxide are by subarea. nol air basin, in some cases. EPA and CA '"
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have dcsign.1led the enlire Souli! ClhlSt Air Basin, which includcs all of Orange County and the non-desert portions of Los Angeles, ~ C3
BCrn:lrdino and Riverside counties, as federal and stale non-allainmenl arcas for ozone and fine particulate matter (PM,,). The Sc. ..
is in allainment wilh the federal nilrogen oxide slandard bUI continues 10 violate the slale slandard. Bolh ozone and nitrogen diox g>
are regional pollutants in thm lite)' are Cl'C.11ed when pollulants combine in the almosphere al some distance from where they are initi: !!:.
emilled. PM" also forms in the nlmosphere through chemicnl reaclions wilh olher pollutnnls, as well as occurring nnlurally in very f ~
soH. man-made particles. and sea spray. .:-
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Ambient air qu,1lily in Ute projcct nrea is mellsured", the SCAQMD monitoring slnlion located al 2~302 San Bemnrdino Avenue, SOUl ~
#62 in the City of San Bem1rdino. The San Bernardino station monitors ozone. cnrbon monoxide, nitrogen dioxide, lend, sulfnte. 101' :!
suspended pnrticulnles. nnd PM". Table 2 lists Ihe air qualily readings nllhe stalion from 1989 through 1993 for pollutnnts for whic _
the South Coast Air Basin 1l.15 been designated a fedcTnl non-allainmcJ1t arel!. Slate and n31ionallead and sulfur dioxide standards wer 0
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met throughout Ihe monitoring period. There is no longcr .1 slale or federal slnndard for lotal suspended particulates (TSPJ, bullh '"
mensured TSP conccntration is sholl'n for comparison 10 Ihe PM" coucenlralions allhe site. ~
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Pc.1k pollutanl concentrations ".11)' from year to year. depeuding on meleorological condilions. aLOne coucenlrntions and numbers 0 ~
cxcccdances have fluctuated at (he San Bcrnnrdino Sltlliol1 over the pasl1i\'c )'cClrs, nhhough the running l)\'cragc number of days aye :!
the state standard has decreased subslantiall)" 0''Or Ihe fil'c-}Car period. As in Ihe reSI of Ihe Basin, CO concentrations hnve declined ~
Nitrogen dioxide levels have remained appro,imalcl)' Ihe same. wilh some dccline over 1989 le\'els. PM" concenlrations sho\\ :E
subSlantial decreases, but they h:l\'c not been ndjuslcd for wcather pallcrns and slIch concentrations can val)' substanlially because oj :E
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The SCAQMD regulales slalional)' sources of pollution IhroughoUI Ihe SCAB and has ntuhoril)' under Ihe California Clean Air Act to :;l
mnn.1ge transportation aClivities ns indirecl (nonstalional)') sources. which arc facililies that do nol direcII)' emil subslantial amounts of ~
pollution but allract large numbers of mobile sources of pOllution. Dircct emissions frommolor ,'ehicles arc regulaled by the Cnlifornin
Air Resourccs Board.
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TABLE]
Ambient Air Qu:tlit), Standards
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Botlltlle Califomia and federal Clc:m Air Acts require desigll:lled agencics ill the SCAB, which is Ihe nation's only "exlreme" ozone non. <C
allainment area, to prcpare plans documenling actiolls to meel air qua lily stalldards. Thc SCAQMD and the Soulhern California
Association of GOl'emmems (SCAG) are the desigllated planlling agencies. As requircd b)' Ihc California Cle:!n Air Act, the SCAQMD
rC\iscd Ihe Air Qualil)' Managcmcnt Plall (AQMP) in 1996 10 :Iddress mc:!surcs nceded 10 all:dn fcderal alld Slale standards. The 1997
AQMP also includes monsures 10 reduce toxic emissions and compoullds which conlrlbute 10 global warlllillg. Allainment of the fcderal
ozone standard was projected for the yenr 2010. :! three-)"car extcllsion fromlhc all:!imnenl d;lIc in Ihc 1989 AQMP. CARB approl'cd
the 1997 AQMP in ]:mIL1I)' 1997 \lith specific rcscr":IIiOllsrcgarding reliallcc on fulure. as )"clundefincd. tcehnologies to reach cmission
reduelion goals for ozone.
California Fedcral
Air Pollutant Standard Primnrr Second an'
Ozone > 0.09 ppm, I-hr. aI" > 0,12 PDm. I-hr. ",'g. 0.12 PDm, I.hr. 'I'g.
Carbon Monoxide ? 9.1 ppm, 8-hr. al'g ? 9.5 ppm, 8-hr. al'g ? 9.5 ppm, 8-hr. .vg
> 20 porn. J -hr. al'g > 35 porn, 1-hr, al'e > 35 Dpm, I-hr. .vp;.
Nitrogen Dioxidc > 0.25 ppm, I-hr. ",'g > 0.053 ppm, annual > 0.053 ppm, annual
'I'g. m'g.
Sulfur Dioxide > ,25 ppm I-hr. al'g 0.03 ppm, annual al'g. > 0.50 ppm, 3.hr, al'g.
? 0,05 ppm, 2~-hr. avg > O. 14 ppm, 2~-hr. al'g.
with? 0.10 ozone or
wilh 24-hr. TSP? 100
uglm)
Suspended .vg; > 50 uglIn', 24-hr. al'g > 150 uglm', 2~-hr. avg. > 150 uglm',24-hr. avg.
>50 uglm' annual Particulate Matler > 30 uglm3 nnnual > 30 uglm' annual
(PM")
~eomelrie mean arithmetic mean arithmetic mean
Sulfales > 25 UWIll', 24-hr. ",'~
Lead ~ l,j uglm3, 1I10nthly > 1.5 uglm', calendar > 1.5 uglm'
avg-. quarter
Hvdro~en Sulfide > 0.03 ppm, I-hr. al'g.
Vinyl Chloridc > 0.010 DPIlI. 2~-hr. "I'~.
Visibility-Reducing In sufficient amount to
Particlcs reduce preyailing
I'isibility 10 Icss than 10
miles [It rcla.ivc humjdjl~'
less t1wn 70%. t
observation.
Note: ppm - p::arts ~ million by "'Q]llln,:
ug/Ill' - microgrill1L' p....,.. cubic 1I1.:I.:r
> .,. gre;ah.-r tlun
> '" IrrC:l.tcr th~n or c<1u"llo Source: South eml"l Air Qualil\' ~f:1Tl:lI!"'I1l"'nl l>j"tril.1 1993
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Environmental Impact Checklist
Page 21
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21
I Packet Pg. 456 'I
7.D.c
The feder:ll allainment deadlines in this region are 2010 for ozone, 2000 for enrbon monoxide, and 2001 for PM". The mOSI reee.
adopted plan U.,t addres5cd fedeml requirements was adopted on March 17, 1989, and appro,'ed by the California Air Resources Bo
in August 1989, prior to adoption of the 1990 Clean Air Act Amendmenls. The 1997 AQMP was adopled in November 1996 an,
addresses proocduml requirements of Ihe 1990 Amendments, as well as the three-year review requiremenls of the California Clean.
Act.
The data for this section ofU,e document were abstmeted from the SCAQMD CEQA Air Quality Handbook, the Santa Fe "A" Yard E ~
and the District's Rules and Regulations. en
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Emissions associated with demolition arc calculaled using Ihe emission f"etors in T"ble A9.9-H of the SCAQMD CEQ :::
Handbook. 111e three slruelure consist of brick and wood frmne struclures th"l have a footprinl of "pproximatel)' 20.000 squa a;
feet. All Ule struClures proposed for demolition are one storey in hcight. Assuming 200,000 cubic feel of building volume, th~ E
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days of demolilion, the following demolition equipmenl (Table A9-8-A, one dozer, one front loader), hauling of demolitic 0
wastes to a disposal site, and five employecs, the tOlal demolition emissions per day are forecast to be : 30 Ibs/day PM", I ~
Ibs/day CO, 3 IhlcL1Y ROC, lmd 2~ Ibs/day NO,. The Handbook emission Ihresholds for construction activities are: 550 Ibs/d, ~
CO, 75 Ibs/day ROC, 100 Ibs/day NO" and 150 Ibs/dn)' PM". C"lculated values for demolilion emissions are provided i ..
Appendix A to Utis document. All values r.,1I below Handbook thresholds and air quality impacts from this phase of the proje' ~
...
are not considered pOlentinlly significant., :s
The District's new CEQA Handbook cOnlains a list of daily thresholds of potential significance for emissions and for the s: iii
'"
(square foolage) of speeific eommereialuses. The first step in an air quality impact analysis is \0 compare the size of t .,
proposed r.,cilities ";th these square foolage thresholds (refcr to Table 6-2 of the SCAQMD Handbook). For restaurants a e:-
movie theaters, the thresholds are 23,000 square feel and 30,000 square feel, respectively. Although the square footage
restaurants in Utis project is below the threshold of significance, the combined square foolage exceeds the initial threshold a
shins Ule evaluation into a detailed analysis of polential emissions. This analysis follows.
Demolition
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Emissions associated with grading and construction of tile rctnil and movie stnlclurcs were forecast using the mcthodolog :)
oullincd in tlte SCAQMD Handbook. The assumptions uscd in forecasting these emissions is oullined in Appendix A to thi ~
document. The daily cmissions forecast to occur during eonslruction of the proposcd project are as follows. During gr:ldin. z
thc PM" emissions arc forceaslto bc 106 Ibs/day. Given the rcccnt adoplion of revisions to Rule 403 which requires be! ~
available conlrol technology for reduclion of fllgitive dUSl. the aClllal emissions arc likely to be below this volume. Regardles, ~
the PMIO emissions during grnding (nil below the H.mdbook threshold. Total daily construction emissions (other than fugitiv ~
dust during grading) are forecasl to be: 47 Ibs/day CO. 13 lbs/da)' ROC. 71lbs/day NO,. 3Ibs/da)' SO.., and Sibs/day PM" :E
These daily emissions Clre o\'crslntcd bccntlsc p~\'ing ilCliyitics will not occur until structures arc ncaring completion. AI ~
construction emission values fnll below the Handbook emission thresholds. Therefore. no significant nir qualilY impncts an ~
forecast 10 occur during the COIlSlnlclion philSC or the project. G1
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Page 22
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TABLE 2
Summary of Air Quality Data
San Bernardino Air Monlloring Stlltion
i.
Polluhmt S'"ndnrd_ 1989 1990 199) 1992 1993
Ozone (OJ)
Stale IL1ndMd (1-lu.avg>O.09ppm)
Fcd!:f'al 5bndard (l.hr.llvg>O,12ppm)
Muimum concmtra.lion .30 .29 .2S .28 .21
No. of days state sL1ndard cxccNed IS9 129 127 141 132
No. of dayS fed.:ral standard cxce,:ded liS 78 79 8S 6S
Carbon l\fonollJd~ (CO)
St:a!e standard (J-hr.avg>20ppm)
Fed.:ralstandanl (l-hr.avs>O.12P1'm)
State standard (S.hr.avg29.lppm)
Fed.:ral standanl (8-hr.av~.Spp",)
Maximum concentration I.hr. period II 9 8 7 7
~faximum eoncenlnltion I.hr. pI:nod 81 60 7.0 S9 6.0
No. of dAys Illite ).hr.st3ndtlrd cx~.:<kd 0 0 0 0 0
No. orcbysr~ll-hr.sland:trd exceeded 0 0 0 0 0
No. of cbys stale S.hr.5lanoord cxcl!cdffi 0 0 0 0 0
No. ofcbys federal 8.hr.sfand1rd cxcc...od.:d 0 0 0 0 0
Nitro.,," Dioxide (NOJ
Slate st.;mdard (l-hr.avg>O.2Sppm)
Federal sI.md4rd (0.OS34 AMi in PI'Ill)
AnnulIl arillunetic mean .0409 .0343 .03H .OH6 .0)76
MlI,.jmuI111-hr. concentration .18 .20 .16 .13 .IS
No. of days &t:ate l.hr. stand.lrd excccd...-d 0 0 0 0 0
% Ced..-ral sland,rd eXC<ed.:d 0 0 0 0 0
Total SWlpended Pll11lcuJlIf('s (rSJl)
Maximum 24-l1r. concelllr:tlion )27 2.. 21S 217 139
62.7
0
SllSpcJUIt'dPIIr1if:ullltl'l(I'Mlt)
Stale R:indard (24-hr.avg>'O tlg/mJ)
Fed~:tl s1:md:trd (24.hr,avg>I'O ug/ml)
~faxinmll1 24.l1r, concenlrnliOIl 271 2Jj 16J 136
Percent samples cxc,:.:ding st:lIC standard 7,U ~K,l 610 60
PercCIlI s.'ullnlcs cX'~..-din~ redern] sl:1l1d.,rd ~, I :U 1.7 0
AA1\I- AnnUli) ArillllllC't!" !\1(,1I11 ;\,,\-l\'OI'\Plllk:lhll'
PllIIl - p:1I11 fWr million U:/IIIJ - mi4TU}!!'IUIU IWI' l'ublc nll'leT
SoUl'\"c: Sou.h Coa~t AI."Ou;JIJh' ~r:IIl:l!("l1l('llr I>l..lrlcr Air ()u:llih'!);lla _ 19H9Ihl"UII~b 1993
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Environmental Impact Checklist
Page 23
8/94
Packet Pg. 458
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Oocralions
Emissions associated "ith operations include mobile source emissions and energy use (eleclricity and nalural gas) emissi
The emission calculalions arc sholln in Appendix A. Mobile source emissions are based on traffic generalion eslim
prO\ided in Ille "TmJIic Impact AIII,I)'sis Report San Bernardino Entertainment Center" authored b)' Linscott. Law & Greens]
Engineers and subsequenl informal ion obtained regarding the mi., of vehicles accessing Ihe sile. TOlal daily emissions
forecast as follows: 29-1 Ibslda)' CO. 21 Ibslda)' ROC. 50 Ibslda)' NO,. and 15 Ibslda)' of PM". The onl)' pollutant wi
approaches the daily emission thresholds inlhe Handbook is NO.. where the threshold is 55 Ibslday versus Ihe foreeasl 0:
Ibs per of emissions per day.
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The Handbook Illrcsholds were eSlablished as guidelines. not fixed values that when exceeded mandate a finding of signific U
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adverse impact and Ille necessily 10 prep;1rC and EtI\ironmentallmjA1ct Repon (EIR). There are three factors that funher red Cl
Ihe impol1ance of NO, emissions from Ihe proposed projecl. First. attending a movie is a discretionar)' trip. not a required I !
such as a work trip. For such trips. it is assumed Ilult Il,e Irip will OCCur whether this movie thcaler is conslrucled or nol. Th N
the 5,610 daily forccasttrips for this projecl are not all assumed to bc netlrips wilhin the SCAB. In Ihis case. several n <i'
~
theater complexes have becn or arc in Ihe process of being conslrucled wilhin the Inland Empire (Riverside. Ontario. a ~
Redlands). To the e'lentthatlhe proposed projeel draws local residents to Ihis sitc inslc.1d oflhese other Iheater complex, 1::
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then the project could aCluall)' result in a nel emissions redUClion within Ihe SCAB relalive to Ihe existing situalion. It is r E
possible to quantify the actual emissions reduclions associated wilh this situation. bUI it is polentially substantial, ~
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Second.llle entenainment complex is localed directly adjacent 10 the downlown 's major bus transfer localion. As oUllined
the traffic study. almost all major bus roules converge allhis location and provide a very good opportunity for local residen
to travel to Ille enlertainment complex On public lransit. Although no specific emission reduclion can be assigned to a progra.
to attract movie gocrs on public transit, the following miligation measure can contribute 10 overall emission reductions:
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The thellter ollerllto... shllll1\'orl, 1\'ilh Omnitrnns 10 de,'elop emplo)'ee lInd attendance p"el,age(s) that pro,'id 0
some benefit to attendees Ihat usc Jwblic tmnsit to tnn'el to the site. Sucb p"cl'"ges could inelude reduced tick, .:.;
prices. free goods, e,tended trllnsfer hour's for bus ticl,ets. or free bus tiel,ets, ~
~
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In summary. Ihe proposed projcct will generme mobile SOurce emissions Ihm arc nol forecast 10 e"ceed SCAQI\1D CEQA
Handbook threshOlds of significance for dail)' emissions. Further. afier rel'iewing these emissions in Ihe conlext of regional
planning guidelines. ncl potential emissions.nnd polelllial public ImnsilUlilizalion, Ihe Cil)' concludes Ihatlhese emissions will
nol cause or conlribule to significanl degmdmion ofnir qua lily' inlhe SOlllh Coast Air Basin o"er Ihe short- or long-term.
The Ulird ratio",1le for considering projecl emissions as not significnnl is based on Ihe urban redevelopmenl and jobs providec E;
by tltis projecl in Ihe cOnlext of the AQMP nnd Regional Comprehensi\'e Plan and Guidc (RCPG) and Regional Mobility PIa, ..:.
(RMP). TI,e laller two documents were prepared by the Soulhern California Associnl;on of Go\'ernments and they are part O. ~
lhe air qu.1lity planning effort 10 reduce emissions sumcicntly 10 bring Ihe SCAB into compliance wilh federal and state ambiem B
airqu.1Iilys~1ndards. Although project NO" emissions nre below the Hnndbook threshold of significance, Ihe City conclude, 0
thatlllcsc air emissions should not be considered significant in the cumulath'e. long-term conlexl because the)' were consistenl ~
wilh and furthered Ihe implementation of Ihe AQMP, RCPG nnd RMP. Fundamentally. Ihe SCAQMD and SCAG ha\'e ,
projecled thaI ambienl nir qunlil.v standards will be met as long as fulure growth, including cOllllllercial developmenl. occurs :
wilbin Ihe growlh and dc\'elopment framework outlincd in Ihese plans The proposed projeOl redevelops land wilhin the ;e
downtown portion of Ihe Cil)', pro\'ides an esti",aled 200 ncw jobs 10 enhnnce local jobs/housing balance, and pro\'ides good ~
opportunities for public tmnsil usc by cll1plo~'ccs nnd lI1o\'ic :lllcndccs The project nlso provides a high--quality. local W
cnlcrtainlllenl Venne II"'t cnn caplure bk'lge ofmo\'io palrons 10 new Ihealer comple.,es Ihnl arc locmed nl subslantially grealer 'E
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A miewofse\'eral recent EIRs which includCd fulure potelllial for CO liotspol \'iolalions, indicates tlmt Ihe pOlcnlial for such
hOlspots to occur is below n significmlllel'Cl. GiI'cnlhm CO emissions aud \'iolmions arc being reduced wilhinllie region, none
of Ihe intersections idcnlificd as beiug arrecled by Ihe proposed projecllIre forcCllsl 10 exceed Ihe one- and cight-hour CO
sl;md;uds, No mitigalion is required to :lddrcss this isslIe
City of San Bernardino
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Page 24
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2.b. No activities, materials or ehemi",.ls \\lth odors are proposed for USe or implemenlalion allhis projecl sile. Therefor<
potential exists for ad"ersc odor impnels from this project. The informnlion Supporting this coaclusion is based on a revie
the acthlties that ,rill be conducted in Ihe movie and retail slruclures. No chemicals or olher odor producing materials wi
used or alTected by Ihe proposed USes in thc projecl Slruelures.
2.c. The project is nol located \\lthin a high \\ind hnl.,rd area. No potential for adverse impacl from exposure 10 high wind haz
e~ists. The infonnation provided in Ihis discussion \HIS oblnincd from the Cily of San Bernardino General Plan.
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References
Cil)' of San U!:m:ardino. 1996. Inl:md c,ml~r M:l1J EX":lll~ion Final bl\'irlltlnll:'lllallmn:lC'II(cDI.lr1
City of San B.:mardino. 1994. SLl~rhIOC'k Fin;ll EI1\'irollllll:'llt:lllmll;lC'1 Rl:'llon.
South CollSl. Air Qu:dil)' ~r':Jnngemtnt District. 1994/1997. Air OU;l!ilv ~t:lIl;I(!<=ment PI;lI1.
South Coast Air Q1I41i1)' Mnn48en~t Dislri"t. 1993. CF.O.-\ Air OU:1lit\' H:mdhook.
Soulhem California Association ofGo\l'mlll~nls.. 1994. R<=l!ion.1' COl1mrl:'h~'mi\"c PI:l1l .:!lId Guide
3.
WATER RESOURCES
Em1jronmental Setting/Project Impact
3.a.
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The project sile is presenlly dcveloped in urban USes "nd "II "rcas are p"ved, compacled or covered wilh Struclures. Und E
existing circumstances lhe nmolToocfficienl for Ihe projecl area is estimaled 10 be belween 95-100%. The proposed projecl w, ~
ullimately resull in II" whole sile having a comparable runolTcocfficienl when Ihe extensive landscaping is included. TI ~
potential change in impenneable surface is negligible wilhin the 3.86 acre sileo Runoff from the site in Ihe fulure will rem"i ~
essentially U'e same and the site mnoffwill be delivered 10 the dOwlllown slorm drainage Syslem which carries /Jows from t/: ..
sile in Ihe Slreel seclions and subsurface drainage pipes. The direct of dminage will remain Ihe same wilh lhe surface runo: ~
being delivered to the Ly'Ue Creek Channel soulh of the Inland Center Mall. Just soulh of where Ihis dminage inlereepls th :!:.
Lytie Creek Channel, Ly11e Crock and Ihe Sanla Ana River merge just west Oflhe 1.10 and 1-215 Inlerchange. No polential fo ~
Cl
significant impacls in sile runolT are forecast to occur "nd no mitigation is required. The informalion in Ihis discussion wa ..:.
oblained from a field rc,'ie\\' of the site "nd a review of the San Bernardino South 7.5' Topographic Map. ~
::l
Slonn n1nolTfrom the project sile will be direcled to Ihe existing drninage Syslems located wilhin Ihe SlreelS whleh bound the ~
property. This is the same drainage pallern which presently exisls. No polenlialto change Ihe COurse or flow of flood water! Z
has been identified and no milig"lion is required. The informnlion in this discussion was oblained from a field review of the ~
sile and a revieIV of Ihe San Bern"rdino South 7.5' Topographic Map. ~
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The potenlial for altering discharges inlo surface w"ler will exiSI only during construction. Otherwise, future surface runoff
will be from comparable buildings and pnved "re"s. The npplicnnt wi 1/ comply with the CilY's Stormwaler Prevention Program
(SWPP) for Ihe grnding componenl of the projccl as requircd by exisling regulntions. Implemelllallon of an SWPP for Ihe 'E
project Sile will ensure Ihal n1nolT during conslruclion docs nol cause signinc"nl \\'"Ier qualily degradation. No mitigntion ~
mcnsurc is required 10 enSUre lh:u Ihis Pl:m is submiucd since it is :1 I11nlld.1lory requirement by law. After the projccl is J:
"
constmeted. the nmolTfromlhe prqicel sile \\ill be equi,'nlellllo Ihnl fromlhe exisling Projecl site based on similar comlllercial .s
nnd parking uses. No pOlenli:" for degra""tion of wa'er qualily is forecast to occur if Ihe project site is developed with Ihe <C
proposed relnil and mO\;e SlnlClul'CS and uses. No miligalion is required. Thc informalion in Ihis discussion was provided bnscd
on a m;ew Oflhe regula lions requiring Nalional POIIIII:ml Dischnrgc Elimin:uion SYSlem conslruclion general permils for storlll
\\'ater discharges and" review of Ihe flllllre uses of the projcCI site ns den lied by Ihe applicant
3.d. The Proposed projcetlws no polenlialto direclly ch:mge Ihe qllalily or quanlil)' of ground mller. The issue of water consumption
is discussed under the \\ater sllpply SUbSeclion of Ihe Utilities scelion of Ihis Checklist (Section I J). The conclusion regarding
no direct elTcCls on qllanlil)' and qllalily of grollnd"aler is bascd on the deplh to ground waler "I the projecI Sile (estinmled "I
more thnn 100 feci below Ihe ground sllrfaee), Ihe assllmed 100% runo/T of surfaCe \\aler rromlhe site. and the lack of change
City of San Bernardino
Environmental Impact Checklist
Page 25
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I Pa(;ket~Pg.~60 I
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in uses and l)pes of structures once the projeel is eompleled and in opera lion. In addition, no ehemi",.ls or other malerial
be broughlto or used at the site thm could cause any eonlaminmion of ground\\"aler. The infonnalion in this discussiOl s
pro,'ided based on a reyiew of the site desigu and a review of fUlure uses at the projcct site as defined by the applicant.
3.e.
A miewofll1e site and the flood Im7."d map in Ihe General Plan indicales thaI the projcct site is nol subjcctto so"ere floc<
Therefore, no significant polenlial for exposure of people or propeny 10 flood ha2.1rds is identified for this project. No mitig,
is required. The infonnation provided in Ihis discussion is based on a field re,'iew of the site and review of the General I ~
Technical Background Document and Geneml Plan EIR. ~
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No other waler resource issues h""e bcen identified Ihal would be affected by or \\"ould afTectlhe proposed project c:
(3
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References
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City of San Bc:rrwdino. 1989. GCTln-::ll Plan.
CilyofSan Bmwdino. 1989. i:ll .n\'ironll1~IlI:ll rill ;act R~ 011 Cit . ofSlllllkmilrdino (k.u~ral all
S10nnW41er Qu:alily Task Force. 1993. Cnliromia Sloml W:llcr A~.~l M:Ula2O:Ill~"11 Pr;tctic-c H.tndhook.
CityofS4n BmUltdino. 1988. il 0 San ~l.'n.lino G"'l~l11] PJI111 d:llo: T~dllliL':lt ftl.:k ound n ort.
r
t
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Thompson Publishing Group. )992. Sloml\\'l\ler Ptnnit M:lJltI:ll. VOlllllles I and 2.
4.
BIOLOGICAL RESOURCES
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The project site has been com'ened 10 Ulb'ln uses and filcililies and no native or nalnml ecosystems remain \\"ilhin or adjacent to the SBE ~
projcct site. Very limited non-nalive landscaping can be fonnd on Ihe projecl Silc.
Environmental Setting
POlen/ial Impact
4.e.
The project sile docs not comain any mature trees Ihm willnced to be remo"ed. No potenlial for adverse impact exisls and II
miligntion is required.
~
The project site docs nol conlain any n"lnrnl habitat and Ihere is no potenlial for adversel)' impacting biological resources frol '9
.....
implementing the proposed SBEC Project. No miligmion is requircd. ~
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The infonnalion for Ihis discussion is obtaincd from a field suryc)' and thc General Pl'lIl Natural Resources Overlay, Figure 41 ~
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Ref<Tences ~
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Cil)'ofS:m U~'n~3.rdjllo. 1989. G"'l1':r~r i>Lm.
City ofSanlkmardino. 1989. .illal EIl\'irol1ln.'1l1:\111ll a..., Ik XII1 ('ilV OrSall IknJ:Jrdill\l (kllo:r:lIlll:ul
.;.;
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Cily orSon Ckmardinu. 1988. Cilv ofSar lkm:lrdill\l (i..'II,'r;1 PI,IIlI: d;l!..' T,'dllli',:;lllbo:k"rtlulIJ H..: )11.
5. NOISE
/:.;1l'irannu.mtal S~lIing
The project sile is located in Ihe middle of downtown San Berll:Jrdino. II is a hi~hJ)' urb"nlocation wilh significanl b:lekground or
amuienl noise le"cls. The prim:l')' source of Ihe e.,isting amuielll noise ell\'irollmenl is I",mc. According to d:lla cOlllailled in the
General Plan Tcchnical B:lckground Repcn (Table G4) tramc Iloise al 100 feel from the ccnlerline of 5'" Street 'md E Slreet rallges from
GG-G8 dBA, L~,. B:lsed on tramc l'olulIles idenlified in recelll Slndies. this lel'cl of amuienlnoise is slill considered adequ:lle for the
City of San Bernardino
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Page 26
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current noise selling in the projecl area. NOle Ihat single noise e,'ents, such as lrucks, demolilion equipment, police and fire \'el
sirens, m.1)' exceed 90 dBA, but the composite (Ldn) background noise is slill in the ",me general range, Le. 65.70 dBA. Givcn the
of residential uses in the immediatc vicinil)' of the proposed Projccl, the ambienl noise environment is nol considercd significant al
project sile.
Potential Impact
S.b.
~
5.a. The proposed project docs nol contain any noise sensilive uses that would be exposed to the ambient background Sound 10' 'iil
IV
Ihm could pose a signifiClnt constrnintlO ti.eir del'elopment. No potential for significant impact to ncw sensitive land uses ex E
and no mitigation is proposed. The infonl1:1tion prOvided iuthis discussion is based on a review of thc proposed project I; ~
uses and the background noise data contained iuthe Geneml Plan, Background Technical Report, and the General Plan E U
n;
The m'yor aca:ss routes to the project sile are expecled to be the j.215 Freeway, 2"" Slreel, 4~ Street, S~ Street, and 6~ Str g>
from tile cast and west, and E Streel, F Street, D Street aud Arrowhend Avenue from the north and south. Of these streets, 01 e;.
5" Street (1I"5l ofE Street), 6~ Streel, and Arrowhc.1d have noise sensilive residential uses adjaccntlo them. Based the traJ ~
distribution in the trnffic sludy completed for the project, the potential exisls to increase noise levels on the streets containi i:
residential use by some amount less 11mn 3 decibels (considcred significant in most juriSdictions). Construction noise can cr'" <:
a nuis.1nce for residents on 5" Street, belween E and F Slreets. This pOI entia I can be miligated by implementing the followi. ~
measures; (1)
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S.b.l
Exterior construction ncth,itics inrol\'ing lIoise IU"otlucing clluipmcnt shall be restricted to the houn between
a.m. nnd G p.m., excc,)' in the CYcnf of an cmcq~cnc,'.
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The applicant shall ensul'C that aI/ constl-uclion cquipment be operated with mandated noise control equi'lme. g.
(mumers or silencers). ~
CIl
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If noise com/lla!nt, a,'e receh'ed fmm re,'dellts, the "Plllicnnt shnll install/JOr1able noise reduction walls 0 ..
bllrrlers to attenuate sound le,'els to Jess thall J dRA greater than bael'ground sound level. ~
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Implementation of thesc measures call ellsure thai no significallt noise impncls will result from construcling the propose, ~
project. ~
en
PC1l1lo1nent operntion noise Jerels \\ill cOllsist of Ihose associaled with rClail commercial and movie patronage activities. TheS( ~
activities are consistent wllh the background sound levels al1d arc 110t forecnsllo generate e.,terior noisc levels that equal 01 ()
cxceed lhe e,isling background noise 'evels Ihal are domin,"ed b)' trnmc. No Illiligation is required. ~
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References
S.C. No other noise impact issues hll\'e beell idelltified Ihal would be nfTected by or would afTect the proposed project.
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City ofS:m IJ..Ynllrdino. 1989. in;!1 En\'irol11n~"nl:ll rill ll~" R~ lOr! Cil\' ofS:1rl n~'m;Jrdillo G"rl~'r.,t Plim
Cit)' orSnn O~rnnrdillo. 1989. O.:r~rall)rat1.
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City of San ll.:manlino. 1988. Cil . ofS:m n.:nMrtti1l0 0':111.:"311'1<111 l1 ldat.: "1\'d1l1i.:aJ Itid; 'mulld I~... lOr!
City of San Bernardino
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I Packet Pg. 462
7.D.c
6. LAND USE
E:nvironmcntal Setting
The project site is located in tlle "Do"TIto"TI" portion of the Cil)' of San Bcm.1rdino which has been given a Commercial Regional (CF
designation. TIle identified uses in lhe Geneml Plan Me government. professional, and eorpornte offices; hOlel and eOOl'ention foci lit
emertainmen!; cultural/historic; supporting retail uses; reslaumnts; and residential (markel-rnte and senior/congregate care). ~
mandated FAR (Floor/Area Ralio) for commerci,,' "nd office nses is 3.0. The existing land uses in the immediate orca include re ~
commercial, government and professional office, "nd sen'ice uses. E
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Potential Impact 0
6.0.
6.b.
The project site is nOl/ocaled neM an)' airport. nor is illocmed ";Ihin an Airport Dislrict. No polenlial for conflicts wilh airpo
uses exiSlS and no miligation is required. The information provided in lhis discussion is based on a review of the backgrour
land use <l.11a conlained in the Geneml Plan, Background Technical Report, and the General Plan EIR and an area field sun'e:
iii
The proposed SBEC Project would establish a 20-themer Illovie venue and relail commercial activities. ineluding reSlauran ~
These uses are consistent "'lh the current Geneml Plan designation. The project will conform with lhe existing FAR of3 !!:..
Based on lhe consislency of lhe proposed land uses ,,'ith the existing land use designmion, Ihe SBEC Project ",11 not caUSt ~
significant land use itnpact. No miligntion is required. The information provided in this discussion is based on a review Ofl ~
proposed project L1nd uses and tile background land use dnta contained in lhe General Plan, Background Technical Report, al :
the General Plan EIR. ~
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The project sile is not located wilhin a Foothill Fire Zone nor is it loc"ted within the high wind hazMd area oflhe Cily. N a;
potential for conflicts with wildland fire h"ZMds exisls and no mitigation is required. The information provided in thi ~
discussion is based on a ICview oflhe background land use dnta conlained in Ihe General Plan, Background Technical Repon ~
and the General Plan EIR and an Mea field slll"\'e.l'. N
Ol
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G.d.
No olher land use impacl issues have been ideutified Ih"l would be :JtTecled by or would alTeclthe proposed project.
References
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Cil)' ofSQIl Bernardino. 1989. 'inal EI\\'ironl11~'I1I;lIIJl1 :J"I R~' In eil\' l.>fSalllkmardino (h~ll~r;lllll:llI.
, ,
U
City ofS.ll1lk-mardino. 1989. Gl.'Il\"T':IJ Plan.
rj
CilyofS.1n Ekmardino. 1988. Cit ofS:m n.:m;lrdillllCiL'IlL'f.lll'lan t! iblt: TL'~'hlli",11 Ba.:I\' Oil lid I~l.' Ill'''
7.
MAN-MADE HAZARDS
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tfJ\1;,.onmen/n/ Selling
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Based on " ICvicw of cxisling uses on Ihe prQicc, si,e. no man-made h'''"lrds relmed 10 ha'.lIdous lll"leri"ls or wasles was idelltified. ~
This conclusion is b:lscd 011 a fCyicw orlhe Phase I En\'ironlHcnl:J) Silc Assessments for properties localed willtin the project iJrca. The .s::.
u
silc conlains no known current or hisloric underground storage lanks. and "lihough ,he propenies 11,,,'e been in use sinee before 1900, .l!!
none of the historic uses were idcnlificd ns rclcflsing Il;lzardollS m:llcrials onsile. ((
Potential impact
7.a. During construction Ihe Projoctllilluse pClroleulll produclS for fuel "nd lubrication of conslruelion equipmcnt. Mitigalion for
"ny accidenlaJ spills is prolided under issue 7.0.. below. The projeCI consisls of occl!p.l'ing and Ulilizing relail commercial and
lll0l1e sp.1CC. COlD man household c!e,mers and othcr main'clI"nce chemicals (such as .1Inmollia. solvenls, pesticidcs. etc.) will
be Ilscd in these fllciJilics. bUl it is nol alllicipalcd Illallarge and/or continuous Guamities of h"zardous malerials Il'iII be utilized
City of San Bernardino
Environmental Impact Checklist
Page 28
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28
I Packe~ Pg. 463
7.0.c
based on the proposed uses. Consequenll)". no brge andlor Continuous quantities of haz.1rdous waSles will be generaled
would pose a hazard to humans. Based on the type of uses, no polential for significanl use, storage, transport or disposal oft
or hazardous m.1terials "ill occur. As nOled above. mitigmion is proposed below to address accidental spills during construcl
The infonnation in this discussion is oblnincd from a I"Cview oCthe allowable uses and activities Ihat mighl cause signifil
man-made haz.1rds in the future.
7.b.
During construction one polenlin! hazard ma)" be cremed by construction aclivities. As pan of conslruction activilies. pelrole
products will be delivered 10 the project site 10 supply construction equipment wilh fuel and lubricants. The polential
contamination caused by accidental release of such chemiculs can be fully mitigated by implementing Ihe following miligat
measure.
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7.c.
The potential health and Silfely 1.,L,rds associmed with conslruclion aCli,ities have been oUllined under issue 7,b., The propos
uses of the project site. relail commercial and movie Ihcater aClivitics. do nol ha,'e any potenlial to cause health and safe
hazards beyond those normally accompanying such uses. Progrmns are a!rendy in place 10 manage human safety witho ;:
creating any significant heallh or safcty hazards. No significanl haL1rds are forecast from implemenling these uses and f ~
mitigalion is required. The infonnalion for this discussion is oblained from review of the proposed project land uses ar g.
construction activities, nnd an evaluation of polcnlinl hazardous activities associated Wilh Ihe project. G)
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The applicant shall require nil eontrnetol's to control spills of I,etroleum prodUCls and, if such spills Occur, 1 n;
contaminated soil or other matel'inl sh:tll be collected nnd/or treated and disposed of at a fncilit)' licensed: g>
contamin:lted soil, Records of spills :lnd clenn-ull effol1s shnll be relained b)' the develol)er or contractor a !!:.
made available to the City upon re'luest, ~
~
~
The information for Ihis discussion is oblnined from review oflhe proposed projeclland uses and conslruclion aclivities. a ;:
an evalualion of polentinl ha7.1rdous aClivilies associaled with the project ~
Q)
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7.11.1
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7.d.
No other man-made haL1rd issues have been identified that \\'ould be alTeeled or would alTect the proposed project.
References
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Cil)' of San n..."",rdino. J989. In:\1 ,Ilviro ml<:'nt:tllm ;lcl n~ CilV ofS;u nO:nlanlino ("~'ll~'t:ll Plan.
Cily o(San BCn13rdino. 1988. Cil\' ofS:lIl flcm:lrdino O~ncri1r Pbn 1'Ixblc Technical nackl!rilLlnd Rcnort.
i,
l.; Ecologies Lehf', Inc. J 997. h:l~ 1:1 lino CIlIi/i.)mia.
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City ofS;ln Ikm.::lrdino. 1989. G~n~....1 Plan.
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Ecologh,:s ~hr. Inc. 1997. Ph:l!>C EI1\;rOIlIlll"fIlnl Silo: A~.c~crtlc"l ('(llldll~'1.:d ;11470 :0..'. "E" Slreel San ACMI.lrdillo California.
8.
HOUSING
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Ecologies Lehr, Inc. 1997. J'hasc I F:n\'irOllI1lCIlI:l] Sil,: ~~""'lI.~ll!~GID!.I!!I.:J.l,,:4.i\.illO.'~O 4110 Slffitl..S.mLD~r:'I..h~1lilimJi_\I~
.;..:
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According to recent housing d:lln summarized in Inland Business IHngazinc. home \'alues conlinue to drop nnd real estate foreclosures :::
<(
are up 64%(12.000 unilS) comp.1red to the firsllen 11I0nlhs in 1992. The overall trend in housing is for more homes on the markelthan
can be absorbed by existing demand. Through OClober 1997 Ihe Irend in jobs for Ihe Inlnnd Empire (Ri\'erside and San Bernnrdino
County), when seasonnlly adjusted. is up, \\'ilh unemplo~'melll no\\' in Ihe 7.5% range. Based on lhese data, the currenl housing
invenlory is assull1ed to e,ceed the demand and no improvemenl in demand is forecaslto occur inlhe near term fulure.
Em-'ironmental Selling
City of San Bernardino
Environmental Impact Checklist
Page 29
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I Packet Pg...464 I
7.D.c
PotenliallmpaCI
8.a. The proposed project \\ill nol "'n")\'e e-,isling housing or reduce a1'nilnblc housing unils willlinlhe Cil)'. II is argunble whe
lhe project \\ill increase demnnd for housing O1'er Ihe short-Ierm. The proposed project \\ill provide jobs for an estimnled
persons. The net increase in home dCll1(1nd is forecast 10 be vcrr low for these persons since if is anticipated that the majo
of jobs \\ill be low income enlr)' le1'el jobs and Ihe projects will drnw upon lhe e.xisling aI'nilable labor pool. No potcntial
significant impncllo housing resources is forccasl 10 occur. Regnrdless, gi1'en Ihe subslnnlinl number of homes bncklos.
on the markel, the pOlentinl demand for homes frolll full de\'elopmelll of Ihis project is nol forecnsllO be significant ~ ~
infomlation provided in Ihis discussion was oblnined from n review of the projecl size. Genernl Plan, Technical BnckgrOl ~
Report. .md the housing. commcrcinl office space. llnd gCllcr:J1 business informiltion provided in the Inland Business magazi CI.I
.5
Jnnunl)' 1996 edilion. u
S.b.
No olher housing issues hm'e been idelllified Ihal would be a/Tecled or would a/Tecllhe proposed projecl.
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Refer-ences
City of San Bnnardino. 1989. Gent'flll Plrm.
City of San lkmardino. 1988. Cil 0 SOlI n...m,mfillo G~lk"f;,II'J;m II blo: T~''''''lI1kal B.l~'k. ntlllrJ R~' n.
.
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Vincour Publishing. January 1996. "Inland ilusineMN,
9.
TRANSPORT A T10NIClRCULA TlON
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The traffic d<lla used in preparing Ihe General Plan and General Plan EiR (sllllllllnrized in Table 12 of Ihe ElR) demonstrated lhat III ~
surrounding Slreels opera Ie nl an acceplable le\'el of cap:!cil)'. Ho\\el'cr, al bnildont yolumes Ihe General Plan ElR forecasl that level 0
of service and/or volullle/capneil)' ralios 011 hE" Slreel nnd 5'" Slreel would e-'ceed Ihe capacit,\' of Ihese Slreels. Reg.1lding olhe N
en
transpoI1i1fionlcirculntion matters. lldcqualC public lmnsit cnpabilil)', provided by Omoitrans. exisls on the surrounding street systcll' 'tt
::.
Adequale public parking for e-,isling bnsinesses wilhin Ihe area currenll,\' e-,ists on Ihe projecl site on adjncenl arens. Thc projecl sil
docs not provide any air or rail1fame service,
Environmental Selling
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As determined in the Linscott, Law & Grccnsp,lll tramc sludy, nUnine oflhe ntTcclcd inlcrsCCliollS me currently operating III a Lcyc a.
:l
ofSel\iee (LOS) 111<11mee(s Ihe Cil)"'s slandards. LOS D during peak honr. A copy orlhe le.\1 oflhis Sind)' is pro\'ided as Appendix E u
Oflhis document. Exhibils 4 ill1d 5 of Appendix B summarize the c.\:isling roadway conditions for rondwuys and intersections. C
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Potentin/lmpact
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The tra1Jic Sind.\' forceasls Ihallhe proposed pro,ieCI will genera Ie an estimaled 5.6 J() trips. When combincd wilh background :E
traffic gro\\'(h in 1999, lhe project will C:IlISC Imnic flow during the PM pcOlk l10ur to degrade. but wilh One e:~cep1ion, no ><
w
significnlll ill1p.1ct "ill OCcur based 011 cOillparisoll \\ill1 Cill impacl crilerin (LOS D during peak hour). Tile one e-'ceplion, is .;.;
Ihe intcrseclion of ,"' nnd "E" Strce( IIhere Ihe PM pcak hour traffie nOli \\ ill bc reduced 10 :Jlllln:JcccplabJc level of impncl. iii
~1itigntion is identified below which c;m eliminalc this siglUfic:llll imp;}ct. By the rear 2002. Ihe project nnd CUll1ul<ltivc trnffic E
impacts remain nonsigniJicnnl. including tile 5'11 and "E" Slreet inlersection willi (he assllmcd improvements. To mitigate "5
'"
impacts at this one il1lcrseclion. the following illlpro\'ClllClllS I\Ulst be implcmcnted: _
<i
9.:1.1 Rcstl"il)C the n0l1h anu south Ic~,\; of hE" St reet 10 JlnJ\'ide cxclusirc left-turn lanes lint! a sharctl thJ"ou~h-right
J,IIIe. To accommodate this iml"U\'l'l1lcnt. ~()rnc of the cxi.~till~ O".~t1'l'Ct ."l:,:lctl JJarl;.in~ alon~ the cast nnd west
side of UEn Street will II ('l'd ru he c."iminatl'" 01" c0l1n~J1l'd In Il:Inll1c1 p;l,.J.:in~ SIHu..'es.
ImplcmCllIalion of this mcnSUfC can illlpro\'c Ir:lmc now illlhis inlersection so 111:11110 signjfic,lnl delays. using City critcrin,
are e-,pericnced.
City of San Bernardino
Environmental Impact Checklist
Page 30
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30
I Pa,FIt+(~g. 465 I
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The proposed project lIill nol aller Ihe e,;slillg p,lIlem of roads. No pOlemi:l1 for adlerse impaello road p:llterns is foreeaslto ~
occur and no ll1i(ig~tion is required. E
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No other lransporliltion/circulation issues h;l\'c been idclllincd Ih:1I would be alTcclcd or would aITeel the proposed project. ~
Rcf('re/1ces
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9.b. Tlte projcct will eliminate 235 parking spaces, but proposes to rely upon shared use of thc Superblock parking struClU
immediately across the Slrocl, and other offsile p",king Jots and structures iUlhe gcneral I'icinil)' of thc project. A parking SIC
has been completed for thc project which demonstrates 1I1at its use of orrsite parking resources. primaril)' during e\'ening a
wcckend hou",. will be adequatc 10 meet the Cit)' Delelopment Code requirements. A shored dem,md e,ists for 3,022 spal
and thc area has a 10lnl of3, 108 5po1CCS nI'I\ilable. No signific.1nl ad\'elllC parking imp'lels arc forecast 10 occur, Thc informnti
provided in this discussion was obtained from a re\'icw of Ihe project description, De\'elopment Code pnrking rcquircmel
outJincd in Article 3, Chaptcr 19,24 oftllC Code. and the p",king stud)' which is altached as Appendi,),
9,c,
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The public trnnsportation system Cllrrenlly pro\'idcs adequClte service to the area, and if dCITInnd increases. it can cxpnnd 10 mc E
the demand for transit services to the projccl sile. No potcmi::11 for adverse impact is forecast 10 occur and no mitigation Q,)
l:
required, The infonl1alion in provided in tllis discussion was obtained from thc General Plan Technical Background Repe c:;
and EIR.
9,d,
(ij
Cl
Gl
The proposed projcct will not aller an)' presenl pOllerns of eirculmion in Ihe do\\'ntown area. It mal' rcsull in shifting II !!:..
location of movie patrons in the communit~.. bul the physical circulntion patlcrns will not be altered. No significant impac N
c:;>
10 e><isting circulation pallems is forecaslto occur and no mitigation is required, The infommtion pro\'ided for this diseussic ~
~
was obtained from a field re\'ie\\' oflhe existing circulation pallern and a revie\\' of available acccss 10 the projecl sile after _
l:
is developed. Gl
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The project site is not locnlcd on or ncar any mil or flir transportntion facilities. No ad\'erse impact is forecast 10 such faciJilic
iftJ\e SBEC Project is implemented. No mitigation is required. The information providcd in this discussion was obtained frO!
a field revicw of the arc.1 and a re\'ie\\' oflhe General Plan and supporting documents,
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The project may crcnte road Imznrds ns a result orconstruclion activities, During conslmclion, E Slrcel. 5'h Street and 41h Stree Q,.
o
would be affected by construction actil'ilics. This erOllIes the pOlemial for a short-term increase in tramc ha7~1rds on Ihese ro.1d a;
\\'hich will be adjaccnllo constmelion actit'ities, Thc following miligmion measures shall be implcmented by the applicant t, ~
reduce such pOlenl;al haz",ds below a significantle\'e!. 0
9,f.l
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The construction contl'.lctOI" OI'lIl1Jllkant ~h:l" IJI.oddc ntlcqulItc trafnc contl.ul resources (signing, protecti\'! ;..
(]c\'ices, crossing de\'iccs, detours, na~l)Crsons, etc,) fo maintHin safc traffic flows 011 nil streets affected bj
construction acti\'ities. If constr.uction heneath H road is not completed by fhe end of the (ht"s work, th€ q:
eontractOl.OI. "pplicnnt sh,,11 l'nsure that :111 ade(luatc traffic acees,Ii I.outc exists to all areas where ncccss CXiSH S;
at the timc of constnlction. a.
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Traffic haz~lrtls that may affect H.'hides, hic~.clc.s, ur pcdestrians shall be identified .lOtI controlled by the
confractor 01' aplllicant priOl. to construction Hnll n,'s()un:cs m:Jde .",uilable to Ill"c\'cnt or minimizc thesc hazards
during constl-uctiOI1.
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The information pro\'ided in this discussion W:lS obl:lincd rrom :1 review of the projecl description flnd the local circuhHion
J:
system. ~
CilY ofS:lIIlknlardiutl. 19S!) rif1a! hl\'inllllll~nl;d Imrud (knoll' ('it\" l,rS;lll Iknurdinn {;':n~'r;lll'bl1,
(,il)' OfS.111 &-nl:1rdilliJ. 1989 (j~'l1~'r;lJ "Ian.
City 0(5.\11 Bcmnrdino. 198M, Cit" IJrS;1I1Ikm;'lnlin'lli~Il..'rall'l.l" t .fld,I\!:. T~....hIH..'at I b...~ ~munll H.:tl\111
City of San Bernardino
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I Packet Pg:466 I
7.0.0
10. PUBLIC SERVICES
Environmental Selling
Q, Fire
The Cily Fire Depanment m.1inlains 11 fire slalions spread slmtegically Ihroughoulthe Cily. In addilion, three California Dopan"
ofForcstI), (CDF) and one Central Valley Fire District (CVFD) stations arc loemed in close proximil}' to the Cily. City Fire Slalior ::;
is located approxim.1lely Y, mile from Ihe project sile on 3" Streel, jusI e.1SI of Sierra Wa)'. Adequate resources are available to resp ~
to tl.e project site in less Ih.1n the three minute IhreshoId of signific.1nce idelllified in the Geneml Plan EIR. The Fire Depanmenll "
the Uniform Fire Code, Ihe Nalional Fire codes, and the California Code of Regulations.1S Ihe basis for ii's enforcemenl programs c3
addition, tlle Cily h.15 adopled more stringent fire regulations in areas of building eonstruction which requires automatic fire sprinkl iU
in.11l new commercial buildings over 5,000 square fcet in area. g>
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Police
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The General Plan ties fulure delmnd for police senices to gromh in population. Thc proposed project is not forecasl to cause any dir ::
increase in population as the project is expecled to draw upon the exisling labor pool for most of Ihe 200 new jobs. The Depanmenl ai
striving 10 maintain a officer/population ratio of 1.7 officers per 1000 persons iu order to ensure adequate prolection. Wilh the Pol; i
Dcp:lnment located two blocks nonh and Ihe projecl area alre"dy on rouliue palrols, Ihe response time 10 Ihe projcct sile should remr E
within one minute response lime. Jf
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Schools
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Education.11 facilities are provided by the San Bem.1fdiuo Cil)' Unified School Dislricl whose boundaries encompass the project site. TI Gi
General Plan identifies Ihat the Dislrict f.1ciIilies iu 1988 will re"ch 99% cap"cit)' for elemelllary schools, 83% for inlermedinte school ~
and 97% for high schools. The School Dislriet bclOllgS to Ihe Stnte School Building Program which allocales monies for seho, ~
conslruclion. Assembly Bill 2926 was passed in September 1986 granting school districls Ihe ability 10 IcY)' developer fees on ne ~
construction .11 a rale of up 10 25 cellls per square fOOl for commercial development. This fee has since been adjusted by legislalion i :;!
1992. When AB 2926 was p.1sscd Ihe legislature delermined these fees provide adequ3Ie miligmion 10 lesscn projcct impacts to a poir _
thallhcy arc not cnvironmcnlally significant. The Cll)' has established a mitigation fee Ie,)' is e.'pected to be applied to thc projcel.. q
....
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The projecl sitc docs nol conl"in any pmk Or recreation facilities and docs nOI provide an)' recrealional serviecs. The closeS! park 10 tho ~
project sile, Pioneer Park, is loeatcd about one block north al Ihe corner of 6" nnd E Slreels. Seccombe L1ke P",k, a Stale urb.11 ::;:
rccrCc-1tion arcn is JOCalcd three blocks enSI of the prqjcct sileo
d.
Parks and Recreation
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Emergency Medical Services nee prO\'idcd by Cily Fire Dcp<rrllncllI trained pcrsonncllhrough Ille EMT-P;:muncdic program (see fire .;.;
abo,.e). The closesl hospilals 10 the sile are San Bernardino CommunilY. Hosplla!. Counl)' Hospilal (unlil it is rclocatcd) and St. ai
Bcrn;lrdinc's Hospital. AIJ hospitnls fire wilhin a fh'c to ten minute drh'c froJ11lhc project sile. Exisling uses on the project sile crcnlc E
a small, unqu.1nlifinble amonnl of demand for cmergcnc)' medical aid. ~
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Solid Was/€!
e.
Medicol Aid
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Solid wastc collcclcd fromlhe projecl sile is presellll)' disposed 'II landfills in thc easl \'alley, eilher Collon, Mid-Valle)' or San Timoleo
Landfills, thai are oper:ned b)' Ihe Counly. A smal!. bnlunknown, yoIume of solid waSle is gcncratcd fromlhe project site atlhis time.
The Colion L1ndfill is schednled to closed "ilhin the ne't fiye )'cars, bul Mid-Valle)' and S,m Timoleo arc being pcrmillcd for marc than
fi,.c-)'ears, thc currcnt planning horizon cSlnblished bY.lhe C"lifornia Intcgralcd \VaSle Managemenl Ba'lfd for operating landfills.
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g. Olher
No other public service issues h3\'C been identified where 0 potential environmental impact ma)' occur.
POlentia/Impact
a. Fire
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The proposed project will replace some existing struclures willI new and substantially larger structures. The polential incren E
in demand for fire protection services was addressed as pan of Ihe cumulati,-e demand forecast ia the General Plaa. Technic Q)
Background Repon. and General Plaa EIR. The project's contribution 10 cumulative demaad for fire protection services. ~ ~
mitigate polential imp.1cts upon fire protection sen'iees and Ihe Fire Depanment's ability to provide adequate le\'els of sen'ic iU
the EDA shall implement the following measures: g'
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Require Ihal Ihe Ilrojeel conslruclion meel Ihe sl:mdnrd, I'dcrcnecd nbove relaled 10 IYI'e of conslruclio
materials and instnUation or sprinklers during the rc\'icw of phmning, building, nnd construction drawings.
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10.n.2
The aplllicanl shall en,ure Ihnl adequnle infrastruclure nnd Wllter suppl)' nre avnilnble onsile and )Ier eil
stnndards 10 meel pcnl< lire noli' rcqui,'en.ellts nnd thnt Ihey will be in plnce and operalionalllrior 10 occullanc
of the new facilities.
10...3
The DC\'eloper shall be resllOnsible for Ihe illslallalion. mnintennnce and enforcement of adequate access 10 a ;:
facilities for fire C[fuillmcnt within stnlctul'CS and on the adjacent roadways. E
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The infonnmion provided in this discussion was obtained from a revie\\' of the project descriplion and Ihe General Plan an
supponing documenls.
b.
Police
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The net effect on police seniocs from developing the SBEC Project should be approximalely the smne as the current downtowl
demnnd because the uses arc consistent (retail and enlertainment) \\'ith existing or historic uses in the projecl arCll. POlentia 9
impacts on the site can be offsct by implementing the following mitignlion measure to minimize crime polcntialthrough design ~
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The applicant shall confer with the Cil)' Police Della,1mellt nnd jointl)' de,"elop n sel of recommendations for
enhancing public safe!)' within the structures and in couI1~'unJ arcns. These recommendations should address
both Ilh)'sical install:ltion of crime Ilrc\'rntion dCICITcnts, as well as recommendations for Ilatrolling schedules
and the recommendations sl..1I1 he implemented by the npplicunt IU'iol" to finalizing building IJlnns.
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The informaUon provided in this discussion \r~lS oblninc-d from;J re\'iew orlhe prqjccl description and the General Plan and J:
supporting documents. al:l
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The proposed project is not forcc:lsllO C:llISC .1l1~' direct increase in school nllcndnncc. No indirccl cIrect is forecast to occur g
because Ihe project will represenl nn increase in jobs thai can be filled b)' the existing labor pool. The informalion provided in :i
Ihis discussion was oblained from n re,'ie\\' orthe prQiect descriplion nnd Ihc Geneml Plan ~nd sllpponing documents,
Schools
d.
Parks and RecrenNon
The proposed projecl will creme Illoclllion for recrc'lIionllcti,.jlies, cmerllllnmenl, 10 occur. No new demand for downlo\\'n pnrk
and recrention sen'ices is forecasllo occur from implementing the proposed projcct.
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The Cit)' uses the Stale Quimby ACI. as amended. the City Municipal Code for fees and land dedications. and tile City Cal
Improvement Program to eSlablish standards and schedules for acquisition and del'elopment of new park or rehabilitalio
existing parks and recrealion and special f.,cililies. i.e. tot lots. or wmer facilities such as founlains. PoliC)' 9.1.14 oflhe Gen,
Plan requires that new commercial del'elopmen! provide open space facilities on-sile for passive and active rccreatior
conlribule fees for the public development of such f.,cililies. The proposed project contains a courtyard Ihat will provide
public gatllerings and passive recremion. No miligmion is required. The informalion provided in this discussion was obtai;
from a review of the project description and the General Plan and supperting documents.
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The need for increased medi",,1 aid services at the project site can be correlmed 10 incrc.'Sed pepulation in Ihe region, but I (.)
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increased use of lhe project sile. Based on a review of retail commercial and movie theater uses. ani)' a few medical, Cl
emergencies occur during office hours. Some unqu.,ntifiable, but small, incre.,se in demand for emergenc)' medical service rr ~
occur due to del'Clopment oflhe propesed project. However, tile impacts from a minor increase in demand as would be expect _
from Ihe SBEC complex is not identified as cansing a significant elTect on medical aid levels of service. No pet entia I I 9
significant impact is fOrecClst to tIlTcct this sc:rl'icc. No mitigCltion is required, The informalion pro\'ided in this discussion \\ ::
obtained from a review of tile project description and the General Plan and Supperting dOCuments. c
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San Bernardino Count)' ntilizes a per capita annual waste generation rale 1Imt does not apply 10 commercial or industri ~
projects. Riverside County I~,s defined waste generation based upon developed square foolage, and although the County of Sr ~
Bernardino does not calculate waste generation in this manner, the use of the square foolage forecast melhodology seems be E
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suited for this project. Given the proximil)' of Ihe site to Riverside Counly and similar Iypes ofpepulation. il was judged th: 0
use of Riverside Counly dnta would be appropriate for maki ng a forecast. ~
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Medica/Aid
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Solid IV asle
Based upen a generation wctor of I pound per day for each 100 square feci of building area, the proposed facility is forecastt ..
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generate 1,350 Ibs of solid waste per day or about 210 Ions of waste per year, or about 145 cubic yards of waste based on I. en
...
tons per cubic )'ard when compacted in the Inndfill. Based on the Counl)"s recent reductions in waste generation (person" :!:.
communication Jim Walsh, Norenl) and the avnilabilil)" ofcapacil)" for land dispesal at COUI1l)' landfills over the next five y""" ~
no petential for significant impacts to the solid waste s)'slem arc forccastlo occur. ~
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The demolition projcct will result in the one timc disposal of an estimated 3.000 cubic ynrds of inert building material. Thi:
can be disposed of at anyone ofscl'ernl inen wasle disposnl siles localcd in the Inland Empire or allhe Counl)' landfills withou
exceeding the eapncity ofthc e.,isling landfills.
,
The City hns developed a Source Reduclion and Rec)'c1ing Element in response 10 AS 939 which forecasts a 25% waste:
dil'Crsion by 1995 and a greater than 50% di,'ersion by Ihe year 2000. While developme," of Ihe SBEC project will contribute ii
to the ongoing increase in solid \\"aslc gcncrnliOIl Ollld therefore. contribute 10 the cOlltinued cumulative exhaustion of available :E
lJndfill cnpncity, lhe p:ulicip.'llion by' indi,'idlltll businesses in Source reduction progrnms will actunlly reduce tOI~1I waste an
delivercd to landfills o\'er Ihe life of proposed dc\'etopmenl To ensnre elTecti,'e pnrlicipalion of future development in these E
programs the following mcnsure shatl be implcmented b)' facilily operators. E
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The npplicanUopcl1ltors !ihall worl.. with the Cit~. Public Scn'ices DCIHI11mcnt to integrate its "'.ute OlUn;Jgcmcnt
efTorts with n IJI"OJ,::ram of rrcyclin~ ncti\'itics h~' relucated office .ilc.h,itirs consistent with Cit)"S adopted Source
Reduction nlld Recycling Elemcnt. Thi. Ill'O~I."m sh,," includc the identification of method. to reduce wa.te.
at the source and illerca.", the "ulume of '"CC)'clahle matedal. tlll/t call be delirHed to marllels for reuse. Specific
t)'llCS of JlrO~I.:tms include Wll!itC scgl'(.'~ati(Jn (c.u"tlboanJ, phlstic, metals, etc.), tlclh'cry of waste to the Cit,,'s
IlI"Oposcd Male dais RccOlwy F'adlily. and delil'Cl')' of compo'table materials to the Cit)"s proposed composting
facilit)"
Implell1emntiou oflhe abore II1C;lsure lIillll1illimil.e solid waste gencraliou and fUrlher reduce Ihe proposed project's clTects on
lhe solid waste managcment systelll. The information prOl'ided ill Ihis discussioll lias obtained from a reriew of the project
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descriplion and the Geneml Plan. Background Technical Report, Geneml Plan EIR. Cil)' of San Bernardino Source Reducti
and Rcc)'eling Elemenl, Final Drnfi. Count)' ofRi\"erside COllnty Solid Waste Management Plan and Count)' of San Bernordi
San Bernardino Count)' Solid Wasle Management Plan J 989-1990 Update. Preliminary Draft.
g. Other
No olher public service infrastmcture is forecast 10 be impacled and no miligation is required.
References
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ell)' or SIlO Do."n13rdino. 1989. Final F.ll\'irOlUl1.:11IJllllln:1~1 R~nort.
City ofS"n n..-mardino. J9&9. (j('nernl Pl;m
Cil)' of San Ikmardino. 1991. SOIlm: Reduction :md Rn'\'Cli!U1 Ek'lllcllt FhwJ I)rall
City of San Bc:mardino. 1998, Technic.ll1 a1"kerollnd Rtoon
r
County of Rivmlid.:. 1989. Riven:ideCoulllv Solid \Valll" ~f:m:la~m':llll'lall
County of San Ikmardino. 1989. San &-m:lrdino COlI III v Solid W:l.~e ~lnn:llll!Ill~"ll Plan 1989-1990 lIoo:'lle PreJimil1i1rv Drnll.
11. UTILITIES
EnvirONmental Selling
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Natural gas is supplied to the project site by The Gas Company. The exisling buildings on the project site consume small quantities o. Q
nalural gas for space and writer heating. No information is flvnililblc rcgarding the specific volume of gas used on the project site.
a.l.
Na/ural Gas
0.2.
Electricity
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Elcctricity is supplied to the projcct sitc by Southern California Edison Company. The existing buildings on the project site consume ~
'"
smtlll qu.1ntities of elcctricily for indoor and outdoor lighting No information is Clvclilable regt1rding the specific amount of electricity 0.
used on the project site. B
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/Varer
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\Vatcr scf\ice to the projcct is pro,'jdcd by the Cil)' of S;:lJl Bern:lrdino Waler Department. It is the rcsponsibilil)' of the Cily 10 pro,'idc ::
water to development \\ilhin it's seryice arca ifadcquale water supplies;lre H\'ililablc. No estimate is a\'ailnblc on the current water usngc ;e
at the project site. ~
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a../. Sewer I:
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Sewer scn'ice 10 tllis projcct is provided by Ihe Cily of San Bernardino IValer Department. It is Ihe responsibility of the City to provide ii
sewcr service to dc\'clopment \\ithin it's service :He:! if ndeC}u:lIc sewage IrCall11CJ1l cnpacj(y is m'ail:lble. No information is n\'ailnblc on l!
the current \'olume of sewage generated al the projecl sileo M;ljor se\rngc lmnk mains arc locOlled ,Idj"ccnt 10 lhe projecl site 10 carry <(
wasteWaler to the \laler rcclan"'tion planllocaled atlhe sonlhern end of Ihe Cil)' adjacenlto Ihe Santa Ana Ri,'er.
n.5. Other
No 01 her utilit), issues have been identified that would be afrecled or wonld afTeelthe proposed project.
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Potential Jmpacl
a.l. Natural Gas
Based on cl.1ta prolided by the projecl architecl, the proposed struelures will consume an eSlimnted 2,168,000 million BTU
)'C3T, nle City General Plan and policies address reducing consumplion of energy resources Ihrough policy slalements contai,
in Chapler II. The project sile is situnted o\'er a geolhenual resource which is available for use in Slruclures al this local ~
and which pro\ides a unique opportuni!)' to Ihe applicanlto ulilize Ihis resource for space healing, The vast majority of 'iil
'"
natural gas consumption nt Ihe sile is used to prolide space henting, and Ihe polential exisls 10 offset the consumplion of nalu E
gas resources, which are considercd 10 be nonsignificant (as discussed below), through use of Ihe geolhermal resources. ~
miligalion measure is Proposed below which is nol mandalory since the nalurnl gas consumption is not considered significa U
11.a.1
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The developer shall eoufer with the City Municipal Water Department regarding the 3bilit), to utilize 10' '"
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geothermal resources for sl'aee heating and Cooling. If jUdged feasible by the City and del'eloper, the geotherm
resource shall be developed nnd used at the site ns an cllcrg"v SOurce.
The CaJifornia Energy Commission (CEC 1995) Iws reviewed energy resource availabilit)' for California and determined Ih
natural gas resources are available over Ihe ne.'1 len years when Ihe project will be del'eloped. Based on adequacy ,
commercially available nalural gas resources, Ihe proposed projecI will not cause a significant adverse impact on tl
environment. No mitignlion is required.
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Electricity a;
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Based on data provided for relail Slruclure IIse of eleclricilY, Ihe proposed Slruclllres are foreeasl 10 consume an estimale, g.
2,000,000 kilowatt hours pcr year. The California Energy Commission (CEC 1995) has reviewed energy resource availabilil: ~
for Ca1ifontia and delermined thnt adequate eleclricily resources are available over Ihe nexl ten years when Ihe projecl will l> ~
developed, Based On adequacy of commcrcially ",'ailable electricily resources, the proposed projeel will nol cause a significan ..
adverse impael on the environmenL No miligmion is required. ~
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n.3.
Water
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The Proposcd projeel is forecast to consume approximalel)' 13,500 gallons per day, or aboul 12.5 acre-feel per yeat, based on '"
Co
313 operating da)'s. The General Plan EIR p,,~jccled cumulalive \\"ater consumplion wilhin Ihe City at build-oul would raise =>>
tOlal \\"llIer consumplion from aooul43.ooo acrc-fecllo 59,000 acre.fecl. Adequale water supplies \\"ere identified in Ihe General U
o
Plan Em. to c.1sily meet this incre:lsed eonsumplion of 16.582 aCre fecllhrough build-oul of IIlC Cily. To I'erify Ihal the foreCo1Sls z
wilhin the Em. arc still adcquale. the I"olume of produclion for the \\"hole Bunker Hill Basiu \\"as reviell'ed from 1988 through :;;
1992. The dala sho\\"s Ihill consumption o\'er Ihis period declined ",1eh )'eM from aooUI256.774 acre-feel in 1988. In 1992 ~
approximalely 229.400 acre.feel Ofwaler wcre prodUCed from the Basin. Based on currenl dala. Ihe nppro,imHle increase in :E
waler consumplion b)' 12.5 acre-feci pcr )'ear lIillnol e""so a signific:ml imlXlCI ou lI'aler resollrees or walcr suppl)' 10 Ihe projecl :E
sile. Miligation idelllified uuder Ihe Fire issue abO\'e requires Ihal waler mains be sized 10 provide adequale fire /lOll'S 10 Ihc ill
project sile. No addilionalmiligation is required The informal ion pro\'idcd in Ihis discussion \\"as oblained from a review of .;..:
c
Ihe project description, the Gener.II Plan Imd supporling documents, and Ihe W,lier COllse'....'lIion Dislriels Annual Engineering '"
Investigalioll. ,g
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Sewer
The proposed project is forecasllo generale approximatel)' I!.OOO gallOlls of sewage per da)' requiring Irealmenl. The General
Plan Em. projccled cumulative sowage flailS III Cil)' build-oul of 14.1 MGD. This cnmnllllil'e dell1and required the conslruelion
of new and/or upgraded lI'aSlelll1ler IrC:llmel1l and COIlCclion f:lcililics which has been compleled. Ncw connections to the SCller
s)'stem arc required 10 pa)' n fce which fUllds fUlure e'pansiOIl oflhe regional waSlewaler rcel,"nalion s)'stem. Adequale fees
are being prOlided by development 10 fund Ihe requircd expansions in a limel)' lI1:1nner according 10 Ihe Cil)' Slaff. Adequ'lIe
lrunk lines arc nmilnble adjaccntlO Ihe projecl sile as a resuli of Ihe Superblock del'elopmenllO delivetlhe projecl'S sewage 10
the Wilier rcclan11lion plan I. No milig,nion is required An eSlimlllcd 9.5 million g'lllons of excess IrealmCIll eapaeil)' eurrenll)'
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exists al U,e Reclamation Plant. The payment of conneclion fees is a standard requiremenl for new development and does
need to be m3dc a mitigation requirement. The information pro\'idcd in this discussion was obtained from 3 review of
project description. the General Plan and supporting doeumenlS. and discussion wilh the City Public Works and W:
Department StaJT.
b. All utilities are al'3ilable allhe project sile and no e'1ensions lIill be necessary to serye Ihe proposed project. No polential ex.
to creale a "disjointed" panern ofulililye'1ensions. No mitigalion is required. The informalion provided in this discussion \
oblained from a review of the projecl description and the General Plan and supporting documenls.
San a.'tnlU'dino Valley Water ConstT....atiol1 District. 1993. Annual EnlO!ilK"...nIli! 1ll\~li2:llioll :md R,:oort (7192-6/9.ll.
12.
AESTHETICS
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References
Cali[l,)ff1ia EllCTgyConulIission. 1995. E'~ctrkilV
Cit)' of San Bcm.ardino. 1989. Fin.:ll F.l1\'ironm~l1l;l' Imnac1 n~nor1
CityofS311 B~W'dil1o. 1989. General Pl:1n
City ofS3.11 B.enurdino. 1988. Tt'chnical nackl!:round R..-nort
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En\Jironmental Setting
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The project sile is part of Ihe "Dol\'nlol\'n" Dislriet as defined in the City General Plan. This area conlains governmenl. eullural. relal [
commercial, office and a wide range of residenlia' uses. According to the e""lualion in Ihe General Plan, the design slyles in th ~
DOllntown District vary subslanlially, "as does lI.e scale, landscaping quality, and site coverage from block to block. The General PIa: ~
nOles tltallhe large office buildings in Ihe Cenlral Cily/Civic Cenler area are a major landmark because of Ihe concentration of largo C
structures in Utis arc.1. n,e City has idenlified the DoWnlo\\11 Dislrict as subject 10 urban design guidelines eonlained in the General Pial N
and the Main SlICCI Guidelines. Becausc orlhe large scale of Slrtlcturcs in Ihe Downlown District. no major "iews to lhe north and casl ~
the primary scenic views, are available frolll street le\'el. ~
Project Impact
12.a
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The proposed projCCl \\ill rcsull in an intensification of the Downlown DistriCI as a major relail eenler and as a major gathering ()
place for entertainment. The Il1nin stmcturc will be only two storeys ill 11Cight which is comparable 10 the adjacent structures. C
and sn1.111 relative 10 nc.1rby ci,ie buildings and the Superblock. Caltrans slruelure. The General Plan EIR recognized that this ~
inlcnsificnlion would OCcur in the Downtown Dislrict (See Visual discussion in Cllapler 4.3.3) ilnd concluded that this would
be a beneficial impacllo the projcct nrcn. No scenic \'iews from ground Ic\'cl will be ad\'crscly impacted by the proposed project. ::
Viell's from the exisling high risc buildings 10 tllc north and WCSI IlOt bc lJilcred. No signific<lnl obslruction of scenic views is :a
:c
forecast to occur(lnd no mitigation is required. Thc inrorm:lIiol1 provided in this discussion W<IS obtaincd from a review of the ><
w
project description and the Gcncr;11 Plan ilnd supporling dOClIlllCIIIS,
12.b
The Cit)' General Plan ilnd l'.bin Sleect design guidelines prescribe specific design guidelines for struclurcs :Jnd adjaccllt
slreetscapes constructed wilhin lhe Dmmlown District. The project areil has been in transition for the pasl scvcral ycars and
aboul one-third of Ihe project site is presently used for downtown parking space. The proposed project has Ihe pOlentiallo
contribulc to POSilh'c ch<lnges in the [lesthetic character of the do\\'ntown area b)' cOII\'crling low intcnsity use parking arcrls 10
high qu.1lily buildings and inlenor couns. No mitigalion is required. The informalion prorided in Ihis discnssion was oblained
from a re\'iew of lite projecl description. and the General Plan and supponing doculllenls.
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12.c No olher aesthelic issues hare been identified thai ,,'ould be affected or would a{Tcctlhe proposed project.
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References
City ofS.m EkmardillO. 1989. Firul F.:n\'ironmmlallmn3ct RfflOn
City ofS.ut Bmwdino. 19&9. Oenernl Phl1l.
Cily OrS:ln Benurdino. 1988. Technic:ll B3d';llf'Ound Renort
13.
CULTURAL RESOURCES
Environmental Selling
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A review of tile City lustoric records indiCllles lhnlthe Lier Music building and the Bible relail slore are nOI identified as being hislO: ..
slructures. 111e remainder of lhe projccl sile Ims been e.\lensivel)' gmded and developed over IIle past 100 years. However. due 10 kno, g>
fill across the Slreel (as much as 10 feel deep) and more current development activities. including paving parking areas, no potenti !!S
culturnl resources arc known 10 OCCur on the projcct site. The California Thealer. a recognized historic monumenl. is located adjace
10 the proposed project.
l3.a-c.
Construction of the proposed SBEC bUildings has a loll' potellliallO cause significant impaello possible prehistoric resoura
and lustoric resources. The reason for this is Ihe pasl dislurbanee of the ground surfl,ce. including exlensive fill. over lhe pal
hundred Yellrs. 111e Iype of structures prOposed. maximum of two storeys and normal conslruction, means Ihal foundalions ar
not e\'JlCCted to extend into areas where potential resource recovery Can produce an)' me.1ningful data. However. it is possibl
that during installalion of building foundations, undisturbed resources may be encountered. To address this issue. measure
will be implemenled to mitignle this pOlcnlial adverse impacls. The following measures shall be implemented.
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construction in thai area shall be halted until test Jlits Cllll be illslalled. Any cultural resources encountered as 9
a result of the test I'its shall he I'1'OI'el'l)' mitigated through testing, collection_ documentation nnd euration. :;;
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levcl. TIle infonllalion pro,'idcd inlhis discussion \\'as Oblllined from a rc,'ie\\' of the projcct descriplion, Ihe General Plan and
sllppol1ing documenls, and the Phase I Arcllaeologiclllll1\'esligalion Report prepared b)' Archaeological Consulting Sen'ices
for the SlIperblock building across the Slreel..
References
Archaeological COIL"ulling ScrviCl.'S
Rcscan:h l'ro!!'mm
1993, J/i~lnr;.. l'rcs.:n'<1lio!1 II1\'csli >ali\lIl" ,)1' rHllo.'I.. 29 ("ilV of Sail n' ll;Udill
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Cily ofS:1ll Bo:mtlnlillo. 1989. (jL'I\~:J1 Piau
Cil)' OrSall B...TJJ:l.n.lillo. 19J1K Tco:hni...':1I nao:l.\l!NlIllll HCf'II1J1.
City of San Bernardino
Environmental Impact Checklist
Page 38
8/94
38
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H. MANDATORY FINDINGS OF SIGNIFICANCE
The Proposed SBEC Project consiSls of Ihe redcvelopmenl of a large porhon of one block ia Ihe Cily of San Bernardino's Down
Dislrict. Because this sile has been ulililed for urban aClivilies and facililies for more than 100 years. Ihe polential natuml res<
impacts are considered nonsignilicant The sile has pOlenlial cultural resource values Ihal may require a substantial effort 10 mil
below a significant/e,'el, and a moniloring program will be implemented 10 ensure Ihal no cultural resources thaI remain wilhi
appropriate contexl will be damagcd or lost The measures 10 accomplish Ihis mitigation are included as a requirement of this Ir _
Study, Certain tuban senices, such as lire, police and school sen'ices will require some miligmion 10 reduce impacls below a signifi i(j
level. These measures have also been made a requiremenl in Ihis Inilial Sludy. Traffic impaclS were delermined to be mitigable E
nonsignificant lev'el b:lsed on improvements al E and 5~ Streels. Air emissions associaled wilh operalion of the project Were detenn. ~
to be below a significanllhreshold level and based on consislenc)' wilh rcgional plans no Sllort- or long-Ienn signilicant air qUI U
impacts arc forecast to OCcur. Based on the dala cOlllaincd ill Ihis Inilial Study, the proposed Saa Bernardino Entertainment Cent' ~
not forecast to cause allY sigllificanl ad,'erse impacts. IInd Ihe Cil)' proposes 10 adopt a Negative Decimation wilh miligalion measu &1
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John Coute, Chair
Larry Heasley, Vice-Chair
Jim Mulvihill
Lance Durr
Andrew Machen
Amelia S. Lopez
James Ehle
George Rawls
Dan C. Jimenez
CITY OF SAN BERNARDINO
COMMUNITY DEVELOPMENT DEPARTMENT
300 North "D" Street, San Bernardino, California 92418
Phone: (909) 384-5057/5071 . Fax: (909) 384-5080
PLANNING COMMISSION MINUTES
*DRAFT
REGULAR MEETING
DECEMBER 14, 2011
DEVELOPMENT CODE AMENDMENT NO. 11-11
DEVELOPMENT AGREEMENT NO. 11-02
CONDITIONAL USE PERMIT MODIFICATION NO. 11-03 (CUP 97-01)
Page 1 of7
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Chair Coute called the meeting to order at 6:00 p.m.
Vice-Chair Heasley led the flag salute.
Present: Commissioners Coute, Durr, Eble, Heasley, Jimenez, Lopez, Machen, Mulvihill and
Rawls. Absent: None. Staff present: M. Margo Wheeler, Community Development Director;
Henry Empeiio, Jr., Senior Deputy City Attorney; Aron Liang; Senior Planner and Lisa Sherrick,
Administrative Analyst II.
ADMINISTRATION OF OATH
Aron Liang administered the oath.
CONSENT AGENDA:
M. Margo Wheeler, Community Development Director, recommended the meeting minutes
of November 16,2011 for approval.
Commissioner Mulvihill made a motion to approve the minutes. Commissioner Jimenez
seconded the motion.
The motion carried by the following vote: Ayes: Durr, Eble, Heasley, Jimenez, Lopez and
Machen. Nays: None. Abstain: Coute. Absent: None.
PUBLIC COMMENTS - ITEMS NOT ON AGENDA
No comments.
PUBLIC HEARINGS
Chair Coute explained that the three public hearing items would be presented together
because they all involve the same project location.
2. DEVELOPMENT CODE AMENDMENT NO. 11-11 - A proposal to amend Section
19.06.020 of the Development Code to delete the prior amendment approved by
Ordinance MC 1356 to limit the number of new movie theater screens permitted outside
the Main Street Overlay District. This prior amendment language would be replaced with
a limitation on new theater development on a city-wide basis, affecting new theaters not
otherwise exempted by a prior development agreement to 3,000 sq. ft. or less, with 200 or
fewer seats, and with no limit on the number of screens in any theater complex.
Environmental Recommendation:
Applicant:
Affected Area:
Exempt from CEQA - Sec. 15061(b)(3)
City of San Bernardino
City-wide
3. DEVELOPMENT AGREEMENT NO. 11-02 - A proposed agreement between the
City of San Bernardino and Regal Cinemas, Inc. for development of a 14-screen movie
theater in an existing structure located at 450 North "E" Street, in the City of San
Bernardino.
Page 2 of?
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I Pac~~n~g; 480
Environmental Recommendation:
Ownerl Applicant:
APN:
Ward:
Utilize Certified ErR SCH #2009111089
San Bernardino Economic Development Corp.
0134-121-26
I
4. CONDITIONAL USE PERMIT MODIFICATION NO. 11-03 (CUP 97-01) - A
proposal to modify CUP 97-01, approved by the Planning Commission on May 20, 1997
to permit development of a 20-screen multi-plex theater and 20,000 sq. ft. of associated
retail and restaurant uses at the northwest corner of 4th and "E" Streets, in the CR-2,
Commercial Regional land use district. The proposed modification would provide for 6
auditoriums in the existing 20-auditorium structure to be re-purposed to provide 7,200 sq.
ft. of restaurant and retail space and 3,600 sq. ft. of additional live entertainment area and
support space for the California Theater.
Environmental Recommendation:
Ownerl Applicant:
APN:
Ward:
Utilize Certified ErR SCH #2009111089
San Bernardino Economic Development Corp.
0134-121-26
I
Aron Liang, Senior Planner, gave a brief presentation on the descriptions of all projects
including recommended motions.
Emil Marzullo, San Bernardino Economic Development Corp. Director, gave a presentation
on the history and background of the downtown theater.
Commissioner Jimenez said he would like more time to review the documents provided and
asked for a continuance on all three items.
Commissioner Mulvihill asked what the monthly cost was to maintain the empty theater.
Emil Marzullo said the monthly costs are approximately $60,000-70,000.
Patrick Morris, Mayor of San Bernardino, said the City would like the theater to open in the
summer and time was of the essence in moving the projects forward to meet that timeframe.
Jndy Brewer, 5322 Newberry, spoke in favor of the projects on behalf of the San Bernardino
Symphony because the theater and restaurants will allow audience members and musicians a
place to gather before and after the concerts.
Philip Ugalde, 3180 Mayfield Avenue, spoke in favor of the projects because he would like to
visit businesses in San Bernardino rather than neighboring towns.
Matt Korner, 3091 N. Genevieve Street, spoke in favor of the projects and said the cost of
maintaining the empty building was too costly and the only way the downtown district could
rebuild was with the success of the theater.
Page 3 of7
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Myra Elder, 3091 North Mountain View Avenue, spoke in favor of the projects because of the
jobs that would be brought to San Bernardino.
Mischa Tacchia, 2596 Lincoln Drive, spoke in favor of the projects and said his visits to the
California Theater lack a place to dine before the shows and said the jobs that will become
available to young residents of San Bernardino would be positive.
Debbie Ariola, 3120 North Genevieve Street, spoke in favor of the projects and said she would
like to visit a theater within San Bernardino.
Lamarr Sonny, 178 Glenfair Lane, spoke in favor of the projects and said he used to visit the
CinemaS tar and would like to visit the Regal Cinemas and urged the recommendations for
approval to the Council to assist in moving the projects along.
Jasmine Suarez, 157 West Olive Street, spoke in favor of the projects on behalf of San
Bernardino High School students and said she wanted to help San Bernardino thrive
economically by becoming a patron of the Regal Cinemas.
Leonardo Jasso, 235 East 18th Street, spoke in favor of the projects and said he would like the
opportunity to visit the downtown area with friends in San Bernardino rather than having to drive
to another town.
Gustavo Alvarez, 2048 North Pershing Avenue, spoke in favor of the projects and said the
opening of the theater could bring potential for new development along most of the downtown
streets.
Jose Nievas, 2652 Del Rosa Avenue, spoke in favor of the projects and said the students of San
Bernardino high schools will have a local place to patron in the summer months when they are
out of school.
Estephannie Alvarez, 2048 North Pershing Avenue, spoke in favor of the projects on behalf of
Marshall Elementary School and said families would be given an opportunity to watch a film in
downtown San Bernardino together.
Cynthia Perez, 238 East 16th Street, spoke in favor of the projects because the opening of the
theater will invite people from different ethnicities and cultures to come together in San
Bernardino.
James Smith, 1156 East 24th Street, spoke in favor of the projects and said the California
Theater is recognized throughout Southern California and would like for the Regal Cinemas to
assist the revitalization of San Bernardino.
Ariel Hollie, 5360 Dogwood Street, spoke in favor of the projects because she feels safer in San
Bernardino where she resides and would like to be able to visit friends.
Danielle Hobbs, 485 Edgerton Drive, spoke in favor of the projects and said she recently
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performed at the Fox Theater and would like to perform at the California Theater and be able to
provide audience members a chance to watch a show and have a place to dine.
Casey Dailey, 144 East 3rd Street, spoke in favor of the projects on behalf of the
Meadbowbrook Park Loft Homeowners Association and said he resides in the downtown area
and would like to have more entertainment and dining options in the downtown district.
Erika Ruiz, 1423 West 2nd Street, spoke in favor of the projects on behalf of Inland
Congregation United for Change and said her family would visit the CinemaStar and Carousel
Mall with her family as a child and would like to assist the City in revitalizing the downtown
district.
Vice-Chair Heasley thanked the residents of the City who came to speak.
Chair Coute encouraged the students in the audience to maintain their participation in local
government and thanked them for attending the meeting.
A member of the Commission asked what kind of security measures would be implemented at
the theater.
Emil Marzullo said security would be present inside and outside the building with the Police
Department continually visiting the theater. Mr. Marzullo said that surveillance cameras would
be installed in and outside of the theater in the parking areas and would be recording at all times.
Chair Coute said additional cameras should be placed in the parking lot and better lighting
should be installed in the parking lot and loitering should be discouraged.
Emil Marzullo said additional lighting is being researched and is planned to be installed as well
as new striping in the parking lot.
Commissioner Jimenez commended the San Bernardino Economic Development Corp. for a
job well done on trying to bring another theater to the downtown area but said he would still like
more time to review the documents before making a final recommendation.
Henry Empeiio, Senior Deputy City Attorney, pointed out issues on all three items that in his
opinion would require further information and recommended a continuance.
Emil Marzullo said he disagreed with most of the comments made by Mr. Empefto and
explained why a decision on the project was crucial to open by the summer.
Tim Sabo, San Bernardino Economic Development Corp. Legal Representative, explained
why the recommendations in the Staff Reports for all three items were supported by the San
Bernardino Economic Development Corp. and gave a brief presentation on the documents
provided to the Commission.
Commissioner Lopez said she would like more explanation on this project allowing more time
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for all information to be presented and researched in a timely manner.
Tim Sabo said the City and Regal wanted the theater to open in time for the summer rush of
theater-goers and said that in order for the theater to be able to have all work completed by the
summer, the proposed items must be approved as soon as possible.
Henry Empeiio disputed that he had been contacted by Mr. Sabo's office regarding the proposed
items and requested a continuance to give time to the City Attorney's office to submit any
corrections and feedback to the staff reports.
Commissioner Jimenez asked if the City could be held liable at a later time regarding these
projects.
Henry Empeiio said that a challenge could be brought forward at a later time saying due process
was not given regarding these items.
Vice-Chair Heasley asked what the probability was that a case could be brought forward
regarding these items.
Henry Empeiio said the City could be sued using CEQA as a tool to stop the project.
M. Margo Wheeler, Community Development Director, gave a brief description on her
educational background and experience to explain her qualifications in making CEQA
recommendations.
Elizabeth Martin, San Bernardiuo Economic Development Corp. Legal Representative,
said if anyone was to challenge the CEQA findings they would have been present to make their
concerns on the record.
Henry Empeiio said the CEQA objections could be made at the Mayor and Common Council
meeting.
Chair Coute called a recess at 8:39 p.m. Chair Conte called the meeting back to order at 8:43
p.m.
Commissioner Mulvihill made a motion to recommend that the Mayor and Common Council
approve Development Code Amendment No. II-II based on the Findings of Fact contained in
the Staff Report and that the Mayor and Common Council adopt an Ordinance approving
Development Code Amendment No. II-II and Development Agreement No. II-02
concurrently. Commissioner Heasley seconded the motion.
The motion carried by the following vote: Ayes: Coute, Durr, Eble, Heasley, Lopez, Machen,
Mulvihill and Rawls. Nays: Jimenez: None. Absent: None.
Commissioner Mulvihill made a motion to recommend that the Mayor and Common Council
approve Development Agreement No. 11-02 and that the Mayor and Common Council adopt an
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Ordinance approving Development Code Amendment No. II-II and Development Agreement
No. 11-02 concurrently. Commissioner Eble seconded the motion.
The motion carried by the following vote: Ayes: Coute, Durr, Eble, Heasley, Machen, Mulvihill
and Rawls. Nays: Jimenez and Lopez. None. Absent: None.
Commissioner Mulvihill made a motion to approve Conditional Use Permit Modification No.
11-03 (CUP 97-01) based on the Findings of Fact contained in the staff report and subject to the
Conditions of Approval (Attachment C), as amended. Commissioner Machen seconded the
motion.
The motion carried by the following vote: Ayes: Coute, Durr, Eble, Heasley, Machen, Mulvihill
and Rawls. Nays: Jimenez and Lopez. None. Absent: None.
Ms. Wheeler announced that the project would be presented to the Mayor and Common Council
on January 9, 2012.
PLANNING COMMISSION REPORTS/ANNOUNCEMENTS
There were none.
DIRECTOR'S REPORT
The Director indicated that the matters would be discussed at a later meeting.
ADJOURNMENT
Commissioner Mulvihill made a motion, seconded by Commissioner Durr and unanimously
carried, to adjourn the Planning Commission meeting at 8:53 p.m. The next regular meeting was
scheduled for Wednesday, January 18, 2012 at 6:00 p.m. in the Council Chambers, First Floor,
300 North "0" Street, San Bernardino, California.
Minutes Adopted by Planning Commissioners:
Date Approved:
Minutes Prepared by:
Melissa Thurman
Executive Assistant
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Recording Requested
By and Mail To:
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City of San Bernardino
300 North "D" Street
San Bernardino, CA 92418
When Recorded, Mail To:
Mr. James F. Penman, Esq.
Office ofthe City Attorney
City Hall, Sixth Floor
300 North "D" Street
San Bernardino, CA 92418
DEVELOPMENT AGREEMENT
BETWEEN
THE CITY OF SAN BERNARDINO
AND REGAL CINEMAS, INC.
This Development Agreement is dated as of the Effective Date and is by and between the City of
San Bernardino and Regal Cinemas, Inc. (this "Agreement") is entered into by the City of San
Bernardino, California, a municipal corporation (the "City") and Regal Cinemas, Inc., a Tennessee
corporation ("Regal"), and for the limited purposes as noted herein, the Redevelopment Agency of the
City of San Bernardino, public body, corporate and politic, (the "Agencv") and the San Bernardino
Economic Development Corporation, a California non-profit corporation (the "SBEDC"). For good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the City and Regal
agree as follows:
I. RECITALS. This Agreement is entered into with reference to the following:
l.l The Lease. The SBEDC and Regal entered into a Lease Agreement (the "Lease")
effective as of the date of signature by both parties (the "Lease Effective Date."
1.2 Propertv. SBEDC owns real property located at 450 North "E" Street in San Bernardino,
being described in the attached Exhibit "A" (the "Land." with the Land and the improvements thereon
referred to as the "Propertv"), which Property is part of the Theatre Square entertainment and retail
project in downtown San Bernardino (the "Proiect").
1.3 Building. The Property is improved by a multi-plex theatre constructed to contain twenty
(20) auditoriums (the "Building"), but which will be altered pursuant to the Lease to contain fourteen (14)
auditoriums.
1.4 Theatre. Pursuant to the Lease, six (6) screens and auditoriums of the Building shall be
separated from the remainder of the Building, leaving a multi-plex theatre containing fourteen (14)
auditoriums (the "Theatre"), and thereupon the Theatre will consist of fourteen (14) auditoriums and
related areas of the Building.
1.5 Regal. Regal has leased the Theatre from SBEDC pursuant to the Lease.
4827-3676-5710.1 1
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1.6 Development Agreement PUfPose. The City and Regal have entered into this Agreement
to facilitate and encourage the pursuit and development of the Property, including alterations to the
Building on the Property, and to establish certainty in the development process for Regal on the Property.
Regal desired certainty with respect to specific matters for it and SBEDC to pursue various work
associated with the development of the Property. The City desired to provide certainty through this
Agreement with respect to specific development criteria to be applicable to the Project in order to provide
for appropriate utilization of the Project in accordance with sound planning principles.
1. 7 Code Authorization and Acknowledgements. The City affirms that It IS authorized
pursuant to California Government Code Sections 65864 through 65869.5, (the "California Development
Agreement Legislation") to enter into development agreements with persons having legal or equitable
interests in real property for the purpose of establishing certainty in the development process. The City
enters into this Agreement pursuant to the California Development Agreement Legislation and pursuant
to City Code Chapter 19.40 (hereinafter defined).
1.7.1 The City affirms that this Agreement constitutes a current exercise of the City's
police powers to provide certainty to Regal in the development approval process and the
development of the Property by vesting certain permitted land uses and development criteria
described in the Development Code (hereinafter defined) and certain other matters set forth in this
Agreement in exchange for significant public benefits the City would receive if the Project is
developed as provided in the Lease.
1. 7.2 This Agreement is granted in consideration of Regal of the significant public
benefits that could be derived from the development of the Property, including the development
of the Property acting as a potentially significant catalyst for the development of other properties
within the Central City North (the "CCN") Redevelopment Project Area within the City, as well
as: (a) mitigating blight currently existing in such area, (b) creating new employment
opportunities within the region; and ( c) contributing to the expansion and/or extension of public
services and utilities. The City acknowledges that each of these potential benefits independently
provides sufficient public benefits to justify this Agreement. The City further acknowledges that a
significant benefit includes the potential additional tax increment revenues from the Property and
the remainder of the CCN redevelopment area in the City which could be more rapidly developed
due to the development of the Property.
1.8 General Plan Consistencv. The Economic Development element of the General Plan
identifies the Property and the existing Building as a significant development of the Central City North
Redevelopment Project Area. Additional improvement of the Property, as facilitated by this Agreement, is
consistent with the General Plan, as demonstrated by furtherance of the following General Plan goals and
policies: Goal 4.10 "Optimize existing redevelopment project areas to identify and prioritize development
opportunities."; Policy 4.10.1 "Utilize all available redevelopment agency/City tools to revitalize and
enhance strategic areas of the City."; Goal 4.14 "Enhance, maintain, and develop recreational, cultural,
entertainment, and educational facilities within the City."; Policy 4.14.2 "Seek and attract uses that foster
a high level of evening activity (e.g. theaters and restaurants)"; and Policy 4.14.3 "Attract uses that
complement and intensify the Convention Center in downtown San Bernardino, including expanding
convention facilities, hotels, restaurants, theaters, and similar uses."
1.9 Development Agreement Findings. The City determines and affirms that this Agreement
is consistent with the City General Plan and the City Development Code and will promote the welfare and
public interest of the City. Further, upon occurrence of the following events, the Council shall make the
following findings and shall confirm compliance with City Code Chapter 19.40:
4827.3676.5710.1
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1.9.1 Regal shall request and apply through the Director of the City's Community
Development Department (the "Director") to enter into this Agreement, and the Agency and
SBEDC shall have joined in such application;
1.9.2 Regal and the SBEDC shall have a legal or equitable ownership interest m
portions of the Property or the Project, and the Property exceeds two acres in size;
1.9.3 Regal's application to enter into this Agreement shall be made on forms
approved, and shall contain all information required, by the Director;
1.9.4 The status of Regal, the Agency, and the SBEDC as owners of, or holders of
legal or equitable interests in, the Property shall be established to the satisfaction of the Director;
1.9.5 Regal's application shall be accompanied by the fee established pursuant to
Chapter 19.32 (Application and Fees) and all other lawfully required documents, materials and
information which fee was paid by the SBEDC for the benefit of Regal;
1.9.6 The Director shall receive, review and process Regal's application for
consideration by the Planning Commission of the City (the "Planning Commission"), and the
Council shall recommend that the Planning Commission and the Council approve Regal's
application and the City entering into of this Agreement;
1.9.7 The City shall comply with all requirements of the California Environmental
Quality Act and all other applicable laws in the approval of this Agreement and adopting the
Resolution (hereinafter defined).
1.9.8 All other requirements under applicable law shall be satisfied by Regal or the
City with respect to this Agreement.
1.10 Planning Commission and Common Council Hearings. On December 14, 20 II, the
Planning Commission, after giving the notice required by law, held a public hearing to consider the
application for adoption of this Agreement. At the conclusion of the public hearing, the Planning
Commission recommended to the Council that this Agreement be adopted as proposed. On January 9,
2012, the Council, after providing notice as required by law, held a public hearing to consider the
application for adoption of this Agreement. The Resolution was adopted by the City in accordance with
the requirements and procedures set forth in Section 19.40.030 of City Code Chapter 19.40, approving the
application for adoption of this Agreement, authorizing execution of this Agreement by the Mayor of the
City and setting forth findings (with supporting facts) referenced in Section 1.9 above.
1.11 Citv Resolution. On January 9,2012, the Council adopted Resolution No.
(the "Resolution") approving this Agreement. The Resolution became effective on the Effective Date as
defined herein.
1.12 Citv Code Chaoter 19.40 Mandatory Cootents. The City affirms that this Agreement does
contain the provisions required by Section 19.40.040 (I) of the City Code Chapter 19.40, as follows
(paragraph references are to said Section 19.40.040 (I):
1.12.1 Duration - see Section 3.2 of this Agreement;
1.12.2 Uses, density, intensity, height and size - see Sections 3.3 and 3.4 of this
Agreement;
4827-3676-5710.1
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1.12.3 No reservation or dedication of land for public purposes is contained in this
Agreement;
1.12.4 No protection against fee increases - there are no fees required or increased by
this Agreement;
1.12.5 Tiered amendment process - see Section 7.2 of this Agreement; and
1.12.6 Health and safety exception - the Vested Provisions may be modified only by
the City as it determines to address a compelling public necessity regarding health and safety that cannot
reasonably be addressed by other means or to comply with any later adopted federal or state law or
regulation; and
Nothing herein shall require Regal to determine or affirm whether this Agreement is in compliance with
City Code Chapter 19.40, and Regal has made no such determination or affirmation.
2. CERTAIN DEFINITIONS. In this Agreement, unless the context requires otherwise (and in
addition to other defined terms in this Agreement):
2.1 "City Code Chapter 19.40" means Chapter 19.40 of the City Development Code in effect
as of the Effective Date.
2.2 "General Plan" means the San Bernardino City General Plan in effect as of the Effective
Date.
2.3 "Assignee" means a Person (a) to whom Regal (or an Assignee of Regal) expressly
assigns its rights and obligations under this Agreement and the Lease.
2.4 "Owner" means any Person that owns a parcel in the Property, including a leasehold
ownership interest, except for (a) any governmental entity that owns merely a right-of-way, easement for
a right-of-way or utility easement, or (b) any utility company that owns merely an easement or a sub-
station or similar facility.
2.5 "Person" means any natural person, firm, assocIatlon, organization, business trust,
partnership, joint venture, limited liability company, corporation, or other legal entity, including any
entity named in the commencement clause of this Agreement.
2.6 "SBEDC Parcels" means all portions of the Project owned by SBEDC that are located
outside the Property, as the SBEDC Parcels are shown on the map that is included as part of Exhibit "A."
2.7 "SBEDC Acquired Parcels" means any parcels that are part of, or adjoining, the Project
that are acquired by SBEDC after the Effective Date, including any portion of the real property shown on
the map that is included as part of Exhibit "A" as being outside the SBEDC Parcels but which may be
later acquired by SBEDC.
2.8 "Effective Date" of this Agreement means the later to occur of the following: a) the date
on which Development Code Amendment No. II-II becomes effective; or b) February 27, 2012.
4827-3676-5710.1
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3. DEVELOPMENT OF THE PROPERTY; VESTED PROVISIONS
3.1 Citv Code Chapter 19.40. This Agreement is subject to the provisions of City Code
Chapter 19.40.
3.2 Term. The term of this Agreement ("Term") shall commence on the Effective Date and
extend for a period ending on the expiration or earlier termination of the Lease; provided, however, that
the Term of this Agreement shall not extend past the day that is the twenty (20) year anniversary of the
Effective Date.
3.3 Development of Property and Vested Provisions. Regal shall develop the Property in
accordance with the Development Code, in effect on the Effective Date of the Agreement, and in
accordance with the other provisions of this Agreement and the Lease, including without limitation the
provisions of Section 3.6 (the "Vested Provisions") as those Vested Provisions are in effect as of the
Effective Date. All existing and future rules, regulations, ordinances, resolutions, and policies of the City
as applied to any use or development of the Property shall be interpreted and enforced in a manner
consistent with the Vested Provisions.
3.4 Changes in the Vested Provisions. The Vested Provisions, including without limitation
the provisions of Section 3.6, shall not be amended, changed or modified in any manner by the City
through any action of the Council during the Term of this Agreement without the prior express written
consent of Regal having first being obtained, which written consent may be granted or denied by Regal at
the absolute and sole discretion of Regal.
3.5 Joinder bv the SBEDC. The SBEDC joins in this Agreement to subject the respective
parcels to this Agreement and for those parcels to receive the benefits of this Agreement.
3.5.1 SBEDC subjects the SBEDC Parcels to this Agreement.
3.5.2 SBEDC subjects the SBEDC Acquired Parcels to this Agreement.
3.5.3 All of the benefits of the Vested Provisions and this Agreement apply to all of the
Project (which includes the Regal leased Parcel and the SBEDC Parcels) and all SBEDC
Acquired Parcels, as covenants running with the land.
3.6 Other Citv Commitments.
(a)
The City has not adopted any "living wage ordinance" that would be
applicable to the Regal tenancy or the Theatre or as to any other project
or site within the City of San Bernardino municipal boundaries. A
"living wage ordinance" within the meaning of this Agreement is any
requirement imposed by the City that requires Regal to include any
component of wages or other form of compensation in the wages or
benefits of Regal employees. The provisions of this Section shall remain
in full force and effect from and after the Effective Date and continue in
effect during the Term of this Agreement (defined in Section 3.2), with
the result that no living wage ordinance as above-defined shall be
applicable to the Regal tenancy or the Theatre during the Term of this
Agreement. In the event any living wage ordinance is enacted on the
basis that it is mandated pursuant to any State or Federal law, rule or
regulation, and in the event such living wage ordinance is uniformly
4827-3676-5710.1
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applicable across the State of California, such shall not be deemed a
"living wage ordinance" pursuant to this Section 3.6Ia). However, in the
event any living wage ordinance is enacted on the basis that it is
mandated pursuant to any State or Federal law, rule or regulation, and in
the event such living wage ordinance is not uniformly applicable across
the State of California, such shall be deemed a "living wage ordinance"
pursuant to this Section 3.6Ia) and SBEDC shall reimburse Regal on a
monthly basis all additional costs incurred by Regal due to such living
wage ordinance, as provided in the Lease (including Regal's right under
the Lease to offset such costs against rent payable under the Lease).
(b)
For the Term of this Agreement (defined in Section 3.2), the City agrees
that it will neither entitle nor approve any other motion picture theatre
within the municipal boundaries of the City otherwise permitted
pursuant to the Vested Provisions as contained in Development Code
Chapter 19.06 that has a seating capacity in any single motion picture
theatre (regardless of the number of auditoriums) equal to more than two
hundred (200) seats nor having any auditorium for the presentation of
recorded movie productions of a square footage greater than three
thousand (3,000) square feet, without the prior written consent of Regal
to be granted or withheld in Regal's sole discretion. The City and Regal
jointly agree that such limitation is in the best interests of both parties to
enable the Theatre to gain market acceptance in the Inland Empire
Region based upon the prior investments of public funds by the SBEDC
and the City in the Property and the property leased to Regal under the
Lease.
3.7 Regal Commitments. The provisions of this Section shall remain in full force and effect
from and after the Effective Date and continue in effect during the Term of this Agreement. Regal
commits to (i) use and operate the Theatre as a first class motion picture theatre as part of a system of
motion picture theatres operated by Regal and its subsidiaries and affiliates), (ii) not sacrifice the profits
of the Theatre in an effort to revitalize any other business operations of Regal or any other subsidiary or
affiliate thereof (with the understanding that profits from the Theatre will not be segregated or otherwise
maintained separately from the profits of other motion picture theatres and businesses of Regal and its
subsidiaries and affiliates), and (iii) abide by the terms of the Lease.
4. PERIODIC REVIEW
4.1 Time of Review. This Agreement shall be reviewed by the City at least once a year in
accordance with California Government Code Section 65865.1, on or before the anniversary date of the
recordation of this Agreement, in order to ascertain the good faith compliance by Regal with the terms of
this Agreement. Upon request by the City, Regal shall submit an Annual Monitoring Report
demonstrating its good faith compliance with the terms of this Agreement within thirty (30) calendar days
after written notice from the City of the date of the review to be conducted by City. Following any such
review, the City shall notify Regal in writing within thirty (30) calendar days of its determination as to
compliance or noncompliance with the terms of the Agreement. The annual review procedure set forth
herein and in Government Code Section 65865.1 shall be applicable during the Term of this Agreement.
4.2 Failure to Conduct Periodic Review. In the event the City fails to conduct the periodic
review, such failure shall not be deemed approval by the City of Regal's good faith compliance with the
terms of this Agreement, and the City may undertake an independent review of Regal's performance since
4827.3676.5710.1
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the date of the last annual review, or as of the Effective Date, as applicable, unless Regal shall have
submitted an Annual Monitoring Report to the City demonstrating its good faith compliance with the
terms of this Agreement notwithstanding the lack of notice from the City as provided in Section 4.1
above. In the event the City has not taken action to accept or reject such Annual Monitoring Report within
ninety (90) calendar days after receipt, Regal shall then be deemed to have complied in good faith with
the terms of this Agreement.
4.3 Cost of Periodic Review. The SBEDC shall pay to the City the actual cost incurred by the
City in conducting any such periodic review as provided in Sections 4.1 and 4.2 above. The actual cost of
such review shall be based upon the City fee structure then in effect, including the salaries and reasonable
costs and expenses of the Office of the City Attorney or any other experts and other legal counsel retained
by the Office of the City Attorney with respect to such review. The SBEDC shall submit the review fees
concurrently with submission of the Annual Monitoring Report pursuant to Sections 4.1 and 4.2 above if
such a published applicable fee structure then is in effect and shall also submit a deposit for the estimated
City fees (if a set amount is not specified in a published fee schedule) and the estimated salaries and
reasonable costs and expenses to be incurred by the Office of the City Attorney promptly after receipt of
such estimate from the City.
5. DEFAULT.
5.1 Events of Default. A default under this Agreement shall be deemed to have occurred
upon the happening of one or more of the following events or conditions:
5.1.1 A warranty, representation, or statement made or furnished by Regal to the City
in or under this Agreement is false in any material respect when it was made.
5.1.2 A good faith finding and determination by the City made following a periodic
review under the procedure provided for in California Government Code Section 65865.1 and
Section 4.1 above that upon the basis of substantial evidence Regal has not complied in good
faith with one or more of the terms or conditions of this Agreement.
5.1.3 Any other act or omission by the City or Regal that breaches or materially
interferes with any of the terms of this Agreement.
5.2 Procedure upon Default. Neither the City nor Regal may exercise any remedies with
respect to an event of default referenced in Section 5.1 above unless the party claiming a default by the
other party gives a written notice to the alleged defaulting party specifying the event of default and such
event of default is not cured within the applicable Cure Period (hereinafter defined). The term "Cure
Period" as used herein means (a) with respect to an event of default that reasonably can be cured within
thirty (30) calendar days, the period of thirty (30) calendar days following the receipt of such written
default notice, and (b) with respect to an event of default that cannot reasonably be cured within thirty
(30) calendar days, and if efforts are commenced to cure such default within thirty (30) calendar days
following the receipt of such written default notice, the period reasonably required to complete such cure
with diligent prosecution.
5.3 Remedies. In the event Regal shall be in default under this Agreement, and after all Cure
Periods have been exhausted, the City as its sole remedy may terminate this Agreement and the Lease
upon delivery of a notice of termination to Regal, which notice of termination shall be effective as to the
termination of this Agreement within thirty (30) calendar days after receipt by Regal if such default
remains uncured. In the event any party other than Regal shall be in default under this Agreement, all
remedies, at law or in equity, shall be available to Regal with respect to such default. Notwithstanding
4827-3676-5710.1
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anything in this Agreement to the contrary, the acts of one Owner of a parcel within the Property shall not
affect the rights under this Agreement with respect to any other parcel within the Property.
5.4 RESERVED
6. PROTECTION OF MORTGAGE HOLDERS.
6.1 Protection of Mortgage Holders. Regal and the City agree that this Agreement shall not
prevent or limit Regal (or any Owner), in any manner, at Regal's (or such Owner's) sole discretion, from
encumbering the Property or any portion thereof or any improvement thereon (owned by Regal or any
other Owner, as the case may be) by any mortgage, deed of trust or other security device securing
financing with respect to such Property. The City acknowledges that the lenders providing such financing
("Mortgagees") may require certain Agreement interpretations. Accordingly, the City agrees, upon the
written request of Regal (or the applicable Owner), to meet from time to time with Regal and
representatives of such Mortgagees to negotiate in good faith any such request for interpretation. The
party making such request shall be obligated for the payment or reimbursement to the City of all costs
incurred by the City directly related to this provision to meet and negotiate any such requests for
interpretation and, upon request by the City, shall make a cash-equivalent deposit in an amount of such
costs as reasonably estimated by the City in advance of the City entering into such negotiations. The City
will not unreasonably withhold its consent to any such requested interpretation, provided such
interpretation is consistent with this Agreement. Any Mortgagee of all or any portion of the Property shall
be entitled to the following rights and privileges:
6.1.1 Neither entering into this Agreement nor a breach of this Agreement shall defeat,
render invalid, diminish, or impair the lien of any mortgage on all or any portion of the Property.
6.1.2 If the City timely receives a written request from a Mortgagee requesting a copy
of any notice of default that may be given to Regal under the terms of this Agreement, the City
shall provide a copy of that notice to the Mortgagee within one (1) Business Day after sending the
notice of default to Regal. The Mortgagee shall have the right, but not the obligation, to cure the
default during the remaining cure period allowed such party under this Agreement.
6.1.3 Any Mortgagee who comes into possession of all or any portion of the Property,
pursuant to foreclosure of the mortgage or deed of trust, or deed in lieu of such foreclosure, shall
take the Property or part thereof subject to the terms of this Agreement, including the right of the
City to terminate this Agreement in the event that a default under this Agreement by Regal is not
cured during the cure periods provided in Sections 5.2 and 5.3 above. Notwithstanding any other
provision of this Agreement to the contrary but subject to the immediately preceding sentence, no
Mortgagee shall have an obligation or duty under this Agreement to perform any of Regal's
obligations hereunder or to guarantee such performance.
7. GENERAL PROVISIONS.
7.1 Assignment. Nothing in this Agreement affects Regal's or any other Owner's rights to
own, transfer, conveyor encumber all or any portion of the Property owned by Regal or such other
Owner. Regal (or an Assignee) shall have the right to assign, without the consent of the City, all or part of
its rights and obligations under this Agreement to a Person who is an Assignee. Upon the assignment of
this Agreement to a Regal Assignee, (a) the assignor (Regal or an Assignee, as the case may be) shall be
released from this Agreement when (i) written notice of such assignment is given to the City, and (ii) the
Assignee assumes in writing the obligations of Regal under this Agreement with a copy thereof delivered
4827-3676-5710.1
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Owner shall have any right to assign this Agreement or any rights thereunder.
7.2 Amendment or Termination of this Agreement. Except as provided in Section 5.3 above
(for termination as a remedy for an uncured default), this Agreement may be amended or terminated with
respect to any parcel within the Property only by written agreement signed by the then current Owner of
such parcel and the City after approval by the Council (and, as to the Theatre, by Regal or its Assignee),
without the necessity of the joinder of any other Person; provided, however, any amendment or
termination of this Agreement shall not be effective with respect to any parcel in the Property or with
respect to the rights under this Agreement of any Owner unless the Owner of such parcel or the Owner
whose rights are so affected also is a signatory to such amendment or termination. In order for any such
amendment or termination to be effective, it must be adopted by the City by resolution as set forth in the
California Development Agreement Legislation and must be in form suitable for recording in the Official
Records of San Bernardino County, California. In accordance with City Code Chapter 19.40, the
procedure for an amendment to this Agreement shall be a tiered amendment review procedure as follows:
(a) proposed amendments that are development related (such as affecting
uses, density, height, coverages, or setbacks) must be submitted to the
Director of the Community Development Department and/or to the
Planning Commission of the City for recommendation for approval or
non-approval as required by the Development Code at the time of such
proposed amended and then forwarded to the Council for determination,
at the Council's discretion, of approval or non-approval, with the
Council not being bound to accept the Planning Commission
recommendation; and
(b) all other proposed amendments must be approved by the Council at its
discretion.
7.3 Hold Harmless. Regal shall defend, indemnifY and hold harmless the City and the
Agency, the SBEDC, their officers, elected officials, attorneys, departments, boards, commissions,
employees and agents (collectively, the "Citv/Agencv/SBEDC Indemnified Parties") from any claim,
actions or proceeding against the City/Agency/SBEDC Indemnified Parties to attack, set aside, void or
annul this Agreement on the basis that Regal did not have authority to enter into this Agreement ("Regal
Indemnitv Claim"); and Regal shall reimburse the City/Agency/SBEDC Indemnified Parties for any court
costs and attorney's fees which the City/ Agency/SBEDC Indemnified Parties may be required by a court
to pay as a result of a Regal Indemnity Claim. At its sole discretion, the City, the Agency, and/or the
SBEDC may participate at its own expense in the defense of any such Regal Indemnity Claim, but such
participation shall not relieve Regal of any obligation imposed by this Section 7.3.1. The City, the
Agency, and/or the SBEDC shall notifY Regal promptly of any Regal Indemnity Claim and cooperate
fully in the defense. Regal, the City, the Agency, and/or the SBEDC shall jointly select legal counsel to
represent the City, the Agency, and/or the SBEDC in any such Regal Indemnity Claim. The City, the
Agency, and/or the SBEDC, without Regal's written consent, shall not settle any Regal Indemnity Claim
that is subject to the indemnity under this Section 7.3.1. If during the proceeding a settlement demand is
made and Regal is willing to satisfY the settlement demand and the City, the Agency, and/or the SBEDC
rejects such settlement demand, Regal's indemnity obligation in this Section 7.3.1 shall from that point
forward not exceed the amount of the settlement demand. Notwithstanding any language to the contrary
in this Section 7.3 .1 or elsewhere in this Agreement, Regal shall have no indemnity obligations to the
City/Agency/SBEDC Indemnified Parties for claims that arise from or are alleged to arise from (i) the
negligence or willful misconduct of any of the City/Agency/SBEDC Indemnified Parties, or (ii) any costs
4827-3676-5710.1
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or legal expenses that arise from any suit or action commenced by any of the City/Agency/SBEDC
Indemnified Parties.
7.4 Binding Effect. Except to the extent otherwise provided in this Agreement, the burdens
of this Agreement bind, and the benefits of this Agreement inure to, the City's and Regal's respective
successors in interests and assigns, including as provided in Section 3.5.3 above and in Section 7.5 below.
7.5 Relationship of the City and Regal; Third Partv Beneficiaries. The contractual
relationship between the City and Regal (and any other signatory to this Agreement) arising out of this
Agreement is one of independent contractor and not agency. Nothing in this Agreement shall be construed
as making the City and Regal (or any other signatory to this Agreement) joint venturers or partners. There
are no third party beneficiaries of this Agreement, and this Agreement does not create any third-party
beneficiary rights; provided, however, (a) the provisions of this Agreement regarding development rights
applicable to the Property shall apply to and be enforceable by any Owner with respect to the portion of
the Property owned by such Owner, and (b) an Owner has the rights set forth in Section 7.2 of this
Agreement regarding amendment and termination of this Agreement.
7.6 Notices. Any notice to be provided or permitted under this Agreement shall be in writing,
signed by the party giving such notice and sufficiently given if hand delivered, delivered by an overnight
messenger/delivery service or mailed by registered or certified mail, postage prepaid, return receipt
requested, addressed as set forth below. Such notices, if delivered (i) by hand, shall be deemed given
when delivered, (ii) by an overnight messenger/delivery service, shall be deemed given upon delivery or
one (I) Business Day (hereinafter defined) after the sending of such notice, whichever occurs earlier, and
(iii) by mail, shall be deemed given five (5) Business Days after deposit in the U.S. mail. Notice that
starts the running of any cure period and that is delivered on a non-Business Day shall be deemed
delivered on the next following Business Day if left at the notice address or the next Business Day on
which it is redelivered if it is not left at the notice address.
The names and address of those representatives of each party to which notices shall be sent are:
If to City, to:
With a copy to:
And a copy to:
If to Regal, to:
4827-3676-5710.1
City of San Bernardino
300 North "D" Street
San Bernardino, CA 92418
Attention: City Manager
Timothy 1. Sabo
Lewis, Brisbois, Bisgaard & Smith, LLP
650 East Hospitality Lane, Suite 600
San Bernardino, CA 92408
SBEDC
201 North E Street, Suite 301
San Bernardino, California 92401
Attn: Emil A. Marzullo
Regal Cinemas, Inc.
7132 Regal Lane
Knoxville, Tennessee 37918
Attn: Real Estate Department
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With a copy to:
Herbert S. Sanger, Jr., Esq.
Wagner, Myers & Sanger, P.C.
180 I First Tennessee Plaza
Knoxville, Tennessee 37929
Such addresses shall be subject to change from time to time to such other representatives or addresses as
may be specified in written notice given by the intended recipient to the sender in accordance with this
Section 7.6.
7.7 Estoppel Certificates. At the request of either party, the other party, within thirty (30)
calendar days after receipt of such request, shall certifY in writing that, to the best of its knowledge, (a)
this Agreement is in full force and effect in accordance with its terms and is a binding obligation of the
certifYing party, (b) this Agreement has not been amended or modified, except as is expressly stated in
that estoppel certificate, and (c) no default in the performance of the requesting party's obligations as
provided in this Agreement exists, except as expressly stated in that estoppel certificate.
7.8 Rules of Construction. The singular includes the plural; the masculine gender includes
the feminine; "shall" is mandatory; "may" is permissive. The word "including" as used herein shall be
deemed to mean "including, but not limited to." A "Business Dav" is a day other than a Saturday,
Sunday or City holiday.
7.9 Entire Agreement and Waivers. This Agreement constitutes the entire understanding and
agreement of the City and Regal with respect to the matters set forth in this Agreement. This Agreement
supersedes all negotiations or previous agreements between the City and Regal respecting this
Agreement. All waivers of the provisions of this Agreement must be in writing and signed by the
appropriate authorities of the City and Regal.
7.10 Incorporation of Recitals and Exhibits. The recitals set forth in Section I of this
Agreement and exhibits referenced in this Agreement are incorporated in and part of this Agreement.
7.11 Captions. The captions of this Agreement are for convenience and reference only and
shall not define, explain, modifY, construe, limit, amplifY or aid in the interpretation, construction, or
meaning of any of the provisions of this Agreement.
7.12 Consent. Where the consent or approval of the City or Regal is required in or necessary
under this Agreement, such consent or approval shall not be unreasonably withheld, delayed, or
conditioned.
7.13 Covenant of Cooperation. The City and Regal shall cooperate, deal with, and assist each
other in good faith in connection with the performance of the provisions of this Agreement.
7.14 Recording. The City Clerk shall cause a copy of this Agreement to be recorded with the
Office of the County Recorder of San Bernardino County, California, within ten (10) calendar days
following the execution of this Agreement.
7.15 Severabilitv. Every provision of this Agreement is and shall be construed to be a separate
and independent covenant. Without limiting the generality of the foregoing, if any provision of this
Agreement is found to be invalid or unenforceable for any reason, then the remainder of this Agreement
shall not be affected and shall be enforced to the extent permitted by law and the parties shall negotiate in
good faith for such amendments to this Agreement as may be necessary to achieve its intent,
notwithstanding such invalidity or unenforceability.
4827-3676-5710.1
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7.16 Further Actions. Whenever and as often as it is requested to do so by the other party, each
party shall execute, acknowledge and deliver or cause to be executed, acknowledged or delivered, any and
all such further documents as may be reasonably necessary, expedient or proper in order to achieve the
intent of this Agreement.
7.17 Interoretation, Governing Law and Venue. This Agreement and any dispute arising
hereunder shall be governed and interpreted in accordance with the laws of the State of California. Venue
for any such dispute shall be in the Superior Court, County of San Bernardino, Central District or
equivalent federal court having jurisdiction for the City of San Bernardino.
7.18 SBEDC No Longer Partv. At such time that the SBEDC no longer owns any portion of
the Project, the SBEDC shall no longer be a party to this Agreement. At request of either Regal or the
City, SBEDC shall provide written confirmation of its nonownership position in recordable form
reasonably acceptable to the SBEDC, provided, however, the furnishing of such written confirmation is
not required as a condition to SBEDC no longer being a party to this Agreement, as such automatically
occurs upon such non-ownership as reflected in the Official Recording of San Bernardino County,
California. Nothing contained herein shall prevent the SBEDC from selling, conveying, or otherwise
mortgaging all or any interest of the SBEDC in the Project.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, this Agreement has been executed by the City of San Bernardino,
acting by and through its Mayor and Common Council, pursuant to Resolution No.
authorizing such execution, by Regal Cinemas, Inc., and by the San Bernardino Economic Development
Corporation.
Dated this _ day of
,201_.
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CITY
City of San Bernardino
REGAL CINEMAS. INC.
Regal Cinemas, Inc.
a Tennessee corporation
By:
By:
Name: Patrick J. Morris
Name:
Title: Mavor
Title:
City Clerk
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SBEDC
San Bernardino Economic Development Corporation
a California non-profit corporation
AGENCY
Redevelopment Agency
of the City of San Bernardino,
a public body, corporate and politic
Patrick J. Morris
President
Emil A. Marzullo
Interim Executive Director
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APPROVED AS TO FORM:
APPROVED AS TO FORM:
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PROPERTY
APN 0134-121-26-0000
Legal Description - MN 0134-] 2] -26-0000
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Parcel No. I of Parcel Map 15038 in the City of San Bernardino, County of San Bernardino, State of
California, as per plat recorded in Book 186 of Parcel Maps, Pages 14 and IS, records of said County.
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EXHIBIT B
VESTED PROVISIONS
The following portions and provisions of the Development Code are the Vested Provisions:
Amendment to Development Code Chapter 19.06 - Commercial Districts, Table 06.01 - Commercial
Districts List of Permitted Uses as amended on , 201_.
4827-3676-5710.1
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RESOLUTION NO.
2
3
A RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE
CITY OF SAN BERNARDINO APPROVING DEVELOPMENT AGREEMENT NO. 11-
02 BETWEEN THE CITY OF SAN BERNARDINO AND REGAL CINEMAS INC. FOR
A 14-SCREEN MOVIE THEATER IN DOWNTOWN SAN BERNARDINO
4
5
6
7
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO AS FOLLOWS:
8
9
SECTION 1. Recitals.
10
WHEREAS, Regal Cinemas, Inc., has requested approval of Development Agreement
No. 11-02 for development of a 14-screen movie theater in an existing movie theater located at
450 North "E" Street in the CR-2, Commercial Regional-Downtown land use district; and
WHEREAS, on October 29, 1996, the Redevelopment Agency of the City of San
11
12
13
14
Bernardino (the "Agency") and MDA-San Bernardino Associates, LLC, entered into a
Disposition and Development Agreement (l996-DDA) for the development, construction,
15
16
improvement, and financing of a multi-screen cinema complex and related common area
17
improvements. In 2001, with the downturn in the cinema industry, the Agency purchased the
18
theater building (located at 450 North "E" Street) from MDA, together with the existing tenant
19
lease with CinemaS tar Luxury Theaters, Inc. ("CinemaS tar"), for $10,000; and
WHEREAS, on September 28, 2008, CinemaStar ceased operations; and
WHEREAS, on November 7, 2008, the Agency filed an unlawful detainer action with
the Superior Court of California which held CinemaS tar to be in default of the terms of their
20
21
22
23
lease, declared the lease to be terminated and granted possession of the multi-screen cinema
24
complex (the "20-Plex") to the Agency as of December 1,2008; and
WHEREAS, on December 15, 2008, the Mayor and Common Council of the City of San
Bernardino (the "Council") consented to the disposition of the 20-Plex to Maya North America
("Maya"), and the Community Development Commission of the City of San Bernardino (the
"Commission") approved the sale of the 20-Plex and authorized the Interim Executive Director
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of the Agency to execute the 2008 Disposition and Development Agreement (the "2008 DDA")
2 by and between the Agency and Maya; and
3 WHEREAS, on February 2, 2009, the Council authorized the submittal of a U.S.
4 Department of Housing and Urban Development ("HUD") Section 108 Loan Guarantee
5 Application (the "HUD Loan Application"), on March 6, 2009, the Community Development
6 Citizens Advisory Committee recommended to forward the Pre-Application for the HUD Loan
7 Application for the re-finance and rehabilitation Project to the Council for approval, and on April
8 6, 2009, in a Public Hearing, the Council approved and authorized the submittal of the HUD
9 Loan Application for Maya to HUD; and
10 WHEREAS, the HUD Loan Application was submitted to HUD and the Agency received
11 HUD's approval on September 25,2009; and
12 WHEREAS, on May 18,2009, the Commission approved Amendment No. I to the 2008
13 DDA extending the close of escrow deadline from July I, 2009 to October 30, 2009, due to
14 unforeseen delays in the Agency obtaining legal possession of the building and its contents,
15 HUD's review and approval of the HUD Loan Application, and Maya securing its financing as
16 stated and outlined in the 2008 DDA; and
17 WHEREAS, Maya's continued difficulty with securing financing for the re-opening of
18 the 20-Plex lead to the termination of the 2008 DDA on April 15, 2010; and
19 WHEREAS, between the months of May and September in 2010, the Agency received 8
20 proposals for development of the 20- Plex; and
21 WHEREAS, the Agency vetted each proposal and upon approval by the Commission in
22 closed session, the Agency was directed to negotiate with Regal Entertainment Group ("Regal");
23 and
24 WHEREAS, Regal operates the largest and most geographically diverse theater circuit in
25 the United States, consisting of 6,745 screens in 546 theaters in 38 states and the District of
26 Columbia; and
27 WHEREAS, Regal is a publicly traded company listed on the New York Stock Exchange
28 and its financial strength is testament to backing its lease commitments; and
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WHEREAS, Regal focuses on enhancing its position in the motion picture exhibition
2 industry by distributing value to stockholders, realizing selective growth opportunities through
3 new theater construction, expanding and upgrading its existing asset base with new technologies,
4 and capitalizing on prudent industry consolidation opportunities; and
5 WHEREAS, on November 30, 2010, Regal and the Agency executed a Letter of
6 Understanding and negotiations commenced on the leasing of the fourteen (14) of the 20 theaters
7 in the Cinema; and
8 WHEREAS, Regal, as Lessee, has entered into a Lease Agreement with the San
9 Bernardino Economic Development Corporation (the "SBEDC" as successor in property
10 interest), as Lessor, for the development and reuse of fourteen (14) of the existing twenty (20)
11 theaters within the Cinema building; and
12 WHEREAS, the SBEDC further proposes to lease or sell four (4) of the remaining six (6)
13 theaters to private developers and/or commerciallretail operators and to retain two (2) theaters as
14 possible ancillary space for the California Theatre and a small format performance theater; and
15 WHEREAS, a program Environmental Impact Report (State Clearinghouse No.
16 2009111089) was certified on December 20, 2010, for Merger A; thereafter, staff determined
17 pursuant to Section 15168 (c)(2) of the California Environmental Quality Act (CEQA)
18 Guidelines (the "Guidelines") that pursuant to Guidelines Section 15162, no new effects will
19 occur and no new mitigation measures will be required as a result of the approval of this
20
Development Agreement No. 11-02; and
WHEREAS, the Planning Commission of the City of San Bernardino held a noticed
public hearing on December 14, 2011, to consider Development Agreement No. 11-02 and
recommended approval to the Mayor and Common Council; and
21
22
23
24
WHEREAS, the Mayor and Common Council held a noticed public hearing on January 9,
2012, to consider the proposed Development Agreement Amendment No. 11-02, including the
Planning Commission recommendation and the Planning Division Staff Report dated December
14,2011, as supplemented by the CDC Staff Report; and
25
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WHEREAS, the Planning Commission has reviewed and recommended and the Mayor
2 and Common Council have held a noticed public hearing and have adopted Development Code
3 Amendment No. ] ]-]] pursuant to Ordinance No. ]]-
4
5
NOW, THEREFORE, BE IT RESOLVED, FOUND AND DETERMINED BY THE
MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS
FOLLOWS:
6
7
8
SECTION 2. Findings.
A. Development Agreement Amendment No. ]] -02 is internally consistent with the
General Plan in that it meets General Plan Policy 4.5.2 in that it maintains and enhances
9
10
11
commercial regional cores and economically sound community-serving commercial
concentrations by attracting new regional outlets, maintaining the existing regional retail base,
12
13
and stabilizing the future regional retail base.
14
15
B. Development Agreement Amendment NO.1] -02 is consistent with Deve]opment
Code Chapter ] 9.40 in that, it addresses the mandatory contents for development agreements,
including and not limited to the duration of the agreement, the permitted uses of the property,
and the density or intensity of use(s) as described in Section ]9.40.040 of the Development
Code.
16
17
18
19
20
C. The proposed amendment will promote the public interest, health, safety,
convenience and welfare of the City in that the proposed agreement provides for the re-tenanting
of a vacant theater complex on a commercial property in need of revitalization and rehabilitation
and carries out the entertaimnent district concept approved by the Mayor and City Council in
Development Code Amendment] ] -] ] .
21
22
23
24
25
The proposed Development Agreement will not be detrimental to the public
D.
26 interest, health, safety, convenience, or welfare of the City.
27 SECTION 3. Development Agreement Amendment No. ] ]-02.
28
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Development Agreement No. 11-02 is attached hereto and incorporated herein as Exhibit
2 A, and is hereby approved. The City Manager is hereby authorized and directed to execute the
3 Development Agreement between the City of San Bernardino and Regal Cinemas, Inc., on behalf
4 of the City of San Bernardino.
5 SECTION 4. Compliance with California Environmental Ouality Act.
6 An Environmental Impact Report (EIR) (SCH #2009111089) is a program EIR prepared
7 to analyze the environmental impacts of Merger A and the related downtown development.
8 The Mayor and Common Council certified the EIR, adopted Findings of Fact, a Statement of
9 Overriding Considerations and a Mitigation Monitoring/Reporting Program (MM/RP) on
10 December 20,2010. Development Agreement No. 11-02 addresses certain economic issues and
11 provides for the continuation of Development Code Amendment MC 1356 or Amendment No.
12 II-II and does not require further environmental analysis or documentation pursuant to Sections
13 15162 through 15164 of the State CEQA Guidelines.
14 SECTION 5. Notice of Determination.
15 The Planning Division is hereby directed to file a Notice of Determination with the
16 County Clerk of the Board of Supervisors of the County of San Bernardino, certifying the City's
17 compliance with the California Environmental Quality Act.
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7.D.f
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A RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE
CITY OF SAN BERNARDINO APPROVING DEVELOPMENT AGREEMENT NO. 11-
02 BETWEEN THE CITY OF SAN BERNARDINO AND REGAL CINEMAS INC. FOR
A 14-SCREEN MOVIE THEATER IN DOWNTOWN SAN BERNARDINO.
3
4
I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and
5
meeting thereof, held
Common Council of the City of San Bernardino at a
6 on the day of
7 Council Members:
8 MARQUEZ
9 JENKINS
10 BRINKER
11 SHORETT
12 KELLEY
13 JOHNSON
14 MC CAMMACK
15
16
,2012, by the following vote, to wit:
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Rachel Clark, City Clerk
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18 The foregoing Resolution is hereby approved this
day of
,2012.
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Patrick 1. Morris, Mayor
City of San Bernardino
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Approved as to form:
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JAMES F. PENMAN,
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By:
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