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11-21-2011 Jt. Reg Mtg
City of San Bernardino 300 North "D" Street San Bernardino, CA 92418 http://www.sbcity.org Mayor Patrick J. Morris Council Members Virginia Marquez Robert D. Jenkins Tobin Brinker Fred Shorett Chas A. Kelley Rikke Van Johnson Wendy McCammack MINUTES JOINT REGULAR MEETING MAYOR AND COMMON COUNCIL AND THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO MONDAY, NOVEMBER 21, 2011 COUNCIL CHAMBERS The Joint Regular Meeting of the Mayor and Common Council and Community Development Commission of the City of San Bernardino was called to order by Mayor Patrick J. Morris at 1:36 PM, Monday, November 21, 2011, in the Council Chambers, 300 North "D" Street, San Bernardino, California. Roll Call Attendee Name Title Status Arrived Patrick J. Morris Mayor Present Virginia Marquez Council Member, Ward 1 Present Robert D. Jenkins Council Member, Ward 2 Present Tobin Brinker Council Member, Ward 3 Present Fred Shorett Council Member, Ward 4 Present Chas A. Kelley Council Member, Ward 5 Present Rikke Van Johnson Council Member, Ward 6 Present Wendy J. McCammack Council Member, Ward 7 Present James F. Penman City Attorney Present Rachel G. Clark City Clerk Present Charles McNeely City Manager Present Mayor and Common Council of the City ojSan Bernardino Page 1 Printed 111812012 Joint Regular Meeting Minutes November 21, 2011 1. Closed Session Pursuant to Government Code Section(s): A. Conference with legal counsel - existing litigation - pursuant to Government Code Section 54956.9(a): Joseph Block v. City - Workers Compensation Appeals Board, Case No. ADJ6992194; Maria Melia, Salvador Melgoza. and Guadalupe Melgoza v. City of San Bernardino, et al. - United States District Court, Case No. EDCV 11-00452 VAP; Andrea Orona v. City of San Bernardino - San Bernardino Superior Court, Case No. CIVDS 1008022; San Bernardino County Transportation Commission v. West Colony Community Association - San Bernardino Superior Court, Case No. CIVDS 1004025; Joe Taylor v. City of San Bernardino - San Bernardino Superior Court, Case No. CIVDS 1100841; Wells Fareo Bank. National Association v. Sumer Kodeih, et al - San Bernardino © Superior Court, Case No. CIVDS 1109915. B. Conference with legal counsel - anticipated litigation - significant exposure to litigation - pursuant to subdivision (b) (1), (2), (3) (A -F) of Government Code Section 54956.9: Kendall Plaza LLC v. City of San Bernardino C. Conference with legal counsel - anticipated litigation - initiation of litigation - pursuant to subdivision (c) of Government Code Section 54956.9: One (1) Case D. Closed Session - personnel - pursuant to Government Code Section 54957. E. Closed session with Chief of Police on matters posing a threat to the security of public buildings or threat to the public's right of access to public services or public facilities - pursuant to Government Code Section 54957. F. Conference with labor negotiator - pursuant to Government Code Section 54957.6: Fire Safety © G. Conference with real property negotiator - pursuant to Government Code Section 54956.8. Mayor and Common Council of the City of San Bernardino Page 2 Printed 111812012 Joint Regular Meeting Minutes November 21, 2011 Closed Session Announcement City Clerk Clark announced that during closed session in the matter concerning Kendall Plaza LLC v. City of San Bernardino, Council Member Kelley made a motion, seconded by Council Member McCammack, to approve the Project Development Agreement between Kendall Plaza LLC and the City of San Bernardino with the contingency that if the attachments do not match the agreement, the agreement will come back to the City Council. Mrs. Clark stated that Mr. Sabo gave her the Project Development Agreements along with the Exhibits and they do match what was in the agreement, so the item could move forward. Reading of Resolutions and Ordinances Deputy City Clerk Sutherland read into the record the titles of all resolutions and ordinances on the regular agenda of the Mayor and Common Council and Community Development Commission. Moment of Silence A moment of silence was observed in memory of Armando Tamayo. Invocation/Pledge of Allegiance The invocation was given by Reverend David McGlocklin of St. Paul United Methodist Church. The pledge of allegiance was led by Mayor Pro Tempore Fred Shorett. 2. Appointments \/ There were no commission appointments. 3. Presentations A. Citizens Academy Graduation City Manager Charles McNeely introduced the graduates of the second Citizens Academy and presented them with their graduation certificates. Twenty residents completed the course. B. Service Pin Awards Ceremony The following individuals were presented a service pin award by Mayor Morris in recognition of their many years of dedicated service to the City: Name Department Years of Service Vanessa Macias Finance 5 Richard Bougher Police 10 James McCracken Public Works 10 Mayor and Common Council of the City of San Bernardino Page 3 Printed 1/18/2012 Joint Regular Meeting Minutes November 21, 2011 C. Commendation to Miss Cardinal 2011-2012 presented by Council Member Jenkins Council Member Jenkins introduced San Bernardino High School Miss Cardinal 2011- 2012, Yara Kassis; second runner up, Jasmine Suarez; and first runner up, Annalee Shoemaker. D. Citizen of the Month Award presented by Council Member Jenkins Council Member Jenkins presented Citizens of the Month Awards to Patrons of the Roosevelt Bowl: Susan Longville, Jeff Grande (not present) Janet Chaney, Arturo Espinosa, Stacey Gibson, Jason Newcomb, Marvin Scoggin (not present), Cheryl Margolis and Robert Rego. E. Student of the Month Award presented by Council Member Brinker Council Member Brinker presented the Student of the Month Award to Miranda Martinez, a student at Rialto High School. F. Chamber of Commerce Announcements Jack Avakian presented the Chamber's announcements. © 4. Announcements Announcements were made by the Mayor, members of the Common Council, and elected officials regarding various civic/community events and activities. 5. Consent Calendar A. City Attorney RES -2011-302 Resolution of the Mayor and Common Council of the City of San Bernardino Opposing the Closure of the CalTrans Transportation Permit Office in the City of San Bernardino. Public Comments: L. R. Collier, Riverside, CA. Motion: Adopt resolution. RESULT: ADOPTED [UNANIMOUS] MOVER: Tobin Brinker, Council Member, Ward 3 SECONDER: Wendy J. McCammack, Council Member, Ward 7 AYES: Marquez, Jenkins, Brinker, Shorett, Kelley, Johnson, McCammack Mayor and Common Council of the City of San Bernardino Page 4 Printed 111812011 Joint Regular Meeting Minutes November 21, 2011 B. City Clerk Council Minutes Motion: That the minutes of the following meeting(s) of the Mayor and Common Council/Community Development Commission of the City of San Bernardino be approved as submitted in typewritten form: September 19, 2011; and October 3, 2011. RESULT: ADOPTED [UNANIMOUS] MOVER: Rikke Van Johnson, Council Member, Ward 6 SECONDER: Tobin Brinker, Council Member, Ward 3 AYES: Marquez, Jenkins, Brinker, Shorett, Kelley, Johnson, McCammack C. City Clerk Waive Full Reading of Resolutions and Ordinances Motion: Waive full reading of resolutions and ordinances on the regular agenda of the Mayor and Common Council and Community Development Commission dated November 21, 2011. RESULT: ADOPTED [UNANIMOUS] MOVER: Rikke Van Johnson, Council Member, Ward 6 SECONDER: Tobin Brinker, Council Member, Ward 3 AYES: Marquez, Jenkins, Brinker, Shorett, Kelley, Johnson, McCammack D. City Clerk Mayor and Common Council and Community Development Commission Regular Meeting Dates for 2012. Motion: Approve the following dates for regular meetings of the Mayor and Common Council/Community Development Commission for the year 2012: January 9 and 23; February 6 and 21 (Tuesday due to holiday); March 5 and 19; April 2 and 16; May 7 and 21; June 4 and 18; July 2 and 16; August 6 and 20; September 4 (Tuesday due to holiday) and 17; October 1 and 15; November 5 and 19; December 3 and 17. RESULT: ADOPTED ]UNANIMOUS] MOVER: Chas A. Kelley, Council Member, Ward 5 © SECONDER: Fred Shorett, Council Member, Ward 4 AYES: Marquez, Jenkins, Brinker, Shorett, Kelley, Johnson, McCammack Mayor and Common Council of the City of San Bernardino Page 5 Printed 111812011 Joint Regular Meeting Minutes November 21, 2011 E. Civil Service Personnel Actions - Classified Council Member/Commissioner McCammack voiced her concerns about the hiring practices within the Community Development Department. She stated that she had to file a public records act request to get some information she felt was critical to making these decisions, but the information she received was not complete. She stated that she would be voting "no" on this position, but that it had nothing to do with the person. Motion: Approve and ratify the classified personnel actions, as submitted by the Chief Examiner, in accordance with Civil Service rules and Personnel policies adopted by the Mayor and Common Council of the City of San Bernardino. RESULT: ADOPTED [6 TO 11 MOVER: Chas A. Kelley, Council Member, Ward 5 SECONDER: Tobin Brinker, Council Member, Ward 3 AYES: Marquez, Jenkins, Brinker, Shorett, Kelley, Johnson NAYS: Wendy J. McCammack F. Parks, Recreation & Community Services RES -2011-303 Resolution of the Mayor and Common Council of the City of San Bernardino Authorizing the Director of Parks, Recreation and Community Services to Execute a Memorandum of Understanding with the American Red Cross Inland Empire Chapter for the Use of Park Buildings, Grounds, and Equipment as Mass Care Shelters in the Event of a Disaster. Discussion ensued as to where the evacuation centers will be located and how residents will be notified. Motion: Adopt resolution. RESULT: ADOPTED [UNANIMOUS] MOVER: Chas A. Kelley, Council Member, Ward 5 SECONDER: Virginia Marquez, Council Member, Ward 1 AYES: Marquez, Jenkins, Brinker, Shorett, Kelley, Johnson, McCammack rrr/ Mayor and Common Council of the City of San Bernardino Page 6 Printed 1118/1011 Joint Regular Meeting Minutes November 21, 2011 G. Public Works Reject All Bids for Energy Efficiency Lighting Upgrade at City Hall Motion: Reject all bids for Energy Efficiency Lighting upgrade at City Hall. RESULT: ADOPTED [UNANIMOUS] MOVER: Rikke Van Johnson, Council Member, Ward 6 SECONDER: Tobin Brinker, Council Member, Ward 3 AYES: Marquez, Jenkins, Brinker, Shorett, Kelley, Johnson, McCammack H. Public Works Reject All Bids for Energy Efficiency Lighting Upgrade at the Norman Feldheym Central Library Motion: Reject all bids for Energy Efficiency Lighting Upgrade at the Norman Feldheym Central Library. RESULT: ADOPTED [UNANIMOUS] MOVER: Rikke Van Johnson, Council Member, Ward 6 SECONDER: Tobin Brinker, Council Member, Ward 3 ., AYES: Marquez, Jenkins, Brinker, Shorett, Kelley, Johnson, McCammack I. Public Works Reject All Bids for Energy Efficiency Lighting Upgrade at the Police Department Building Motion: Reject all bids for Energy Efficiency Lighting upgrade at the Police Department Building. RESULT: MOVER: SECONDER: AYES: ADOPTED [UNANIMOUS] Rikke Van Johnson, Council Member, Ward 6 Tobin Brinker, Council Member, Ward 3 Marquez, Jenkins, Brinker, Shorett, Kelley, Johnson, McCammack J. Public Works RES -2011-301 Resolution of the Mayor and Common Council of the City of San Bernardino Authorizing the Submittal of the Application for Waste Tire Enforcement Grant Funds from the California Department of Resources Recycling and Recovery (Calrecycle). Motion: Adopt resolution. Mayor and Common Council ofthe City of San Bernardino Page 7 Printed 1/18/2012 Joint Regular Meeting Minutes November 21, 2011 RESULT: ADOPTED [UNANIMOUS] MOVER: Rikke Van Johnson, Council Member, Ward 6 SECONDER: Tobin Brinker, Council Member, Ward 3 AYES: Marquez, Jenkins, Brinker, Shorett, Kelley, Johnson, McCammack K. Public Works RES -2011-304 Resolution of the Mayor and Common Council of the City of San Bernardino Declaring Its Intention to Order the Vacation of a Portion of Spruce Street Between Mt. Vernon Avenue and a North-South Alley Approximately 150 Feet West of Mt. Vernon Avenue and Reserving Utility Easements Therein. Discussion ensued regarding ownership of the public right-of-way and the adjoining parcels. Ms. McCammack stated that she was concerned that closing off Spruce Street and making it a cul-de-sac would create a major traffic impact on the streets just west of Mt. Vernon. Mr. Eisenbeisz stated that his understanding is that this is actually removing the street © as a public street so there won't be a cul-de-sac. If there is one as part of the development plan, then it would either have to be rededicated as a new public street or it would be a private cul-de-sac. He stated that it does make connection with the north - south alley right now, but a portion of that north -south alley has already been vacated as part of a prior action with the Arco station, so in the end there will probably be no impact as far as the traffic aspect of it, but as far as new development, that would have to be reviewed at the time it is developed. Motion: Adopt resolution RESULT: ADOPTED [UNANIMOUS] MOVER: Chas A. Kelley, Council Member, Ward 5 SECONDER: Tobin Brinker, Council Member, Ward 3 AYES: Marquez, Jenkins, Brinker, Shorett, Kelley, Johnson, McCammack 6. Public Hearings to be Heard at 4:00 p.m. A. Communitv Development RES -2011-300 A Resolution of the Mayor and Common Council of the City of San Bernardino Approving First Amendment to Development Agreement No. 91-01 Between the City of San Bernardino and the Developer of the Inland Center Mall, Located at 500 lV, South Inland Center Drive. The hearing remained open from October 17, 2011. Mayor and Common Council ofthe City of San Bernardino Page 8 Printed 1118/2012 Joint Regular Meeting Minutes November 21, 2011 Margo Wheeler, Director of Community Development, stated that this was a request by the developer to extend the completion dates of the development agreement from the original dates of 2006 and 2011 to 2026 and 2031. She stated that the original approval was for 20 years. Ms. Wheeler stated that the extension also includes clarifications and updates; specifically, the significant changes and improvements to the 215 Freeway have made some changes to the property itself and have affected the parcels. She stated that the original development agreement and the amendments were distributed on disk. Ms. Wheeler added that Emil Marzullo, Interim Executive Director of the Economic Development Agency, and the developers were present to answer any further questions with regard to the specifics of the amendment. Pursuant to Resolution No. 2000-279, City Clerk Clark administered an oath to the following individual that he would provide true and honest testimony: Mark Ostoich, representing Inland Center, stated that they have worked a long time to complete what is a very technical amendment to the development agreement. The economy has affected the regional mall business and as a result of that they have been unable to make the progress they had hoped to make up until now. The amendment requests additional time to complete the plans and reconfigure to account for the fact that the State Route 215 Widening Project occurred and took away land from the Mall. Mr. Ostoich stated that the Mall is the City's largest sales tax producer and because O Inland Center has been adversely affected by this economy they would like to move forward with some exciting pending projects that will return them to a state of strong financial health. They have worked with EDA for the past several weeks on an additional provision in the development agreement amendment that would clear the way for the Council's approval if they chose to approve an item that's coming forward later on the agenda -the Regal Cinema transaction at the old downtown cinema. Their provision would allow that to occur, but not knowing whether the Council will approve that transaction, if they did not, it would not affect the provision in their agreement, it would just run out and they would be able to develop in the future according to the Development Code. He stated that they are fine with the language in the agreement and they believe EDA is fine with the language. The language does not change depending on the outcome of the Regal Cinema transaction. He voiced his support for the plans for the downtown and stated that they have agreed to some significant concessions. Council Member/Commissioner Marquez stated that the backup talks about two phases, Phase 1 and Phase 2. She asked Mr. Ostoich to describe each Phase including the parking accommodations. Mr. Ostoich stated that in 1996 when the original development of Macy's occurred, a parking structure was built that added some significant parking to the facility. The department store and the parking structure were built and additional projects were anticipated. He stated that they haven't been able to complete all of those projects within the time originally allotted predominantly due to the general economy. Phase 1 involves 1 constructing one new anchor, which is the existing Macy's store; a second anchor -and that's where they have not as of today been able to perform; lower level retail shopping mall improvements, which were made; and three adjacent parking structures -they have Mayor and Common Council ofthe City ojSan Bernardino Page 9 Printed ///8/2012 Joint Regular Meeting Minutes November 21, 2011 constructed one adjacent parking structure -the additional structures would have anticipated the addition of a second major and additional activities at the Mall. Mr. Ostoich stated that one of the other things that this development agreement amendment confirms is that the existing parking, counting the spaces within the parking structure and the spaces that are on the ground, are adequate for the present and planned future additions to the Mall. As they move into Phase 2 and add additional majors, additional parking structures will be required. Phase 2 contemplated a third major of approximately 240,000 square feet of gross building area; additional second level retail shopping in the Mall, which doesn't exist today; and other non -retail improvements of approximately 25,000 square feet, so the second phase involves improvements, none of which they have been able to accomplish. A significant portion of the improvements in Phase 1 they were able to accomplish, but there's a portion that they were not able to accomplish. Council Member/Commissioner McCammack stated that in the document they were provided, there is a paragraph on page 83 of the backup (page 3 of the Operative Provisions) that states, "City and developer acknowledge and agree that such vested land use entitlements regulate land use at the Inland Center Mall, notwithstanding the subsequently approved amendment to City's Development Code." "The 2011 Development Code Amendment limits the location of cinema/theater complexes to three screens or less in areas of the City other than within the downtown Main Street Overlay District." Ms. McCammack stated that under the agreement she remembers voting on, it was six screens or less in any other areas besides downtown. Mr. Ostoich stated that if that is correct, then that is a typographical error. Ms. McCammack asked Mr. Ostoich if he was still okay with that language. Mr. Ostoich stated that he was okay with the concept. Ms. McCammack stated that on page 4, based on the current language provided to them for the Regal Cinema, it looked like some of the language is meant to mirror the language in the Regal Lease. It states, "As used herein, a "First Run Theater" means a first-class, multiplex theater containing at least four (4) screens and having stadium -style seating, that runs exclusively mainstream first -run films from any major, nationally recognized film company and/or distributor, during the initial new release period of each film." She stated that that is not what the agreement with Regal says. Ms. McCammack added that the next paragraph says, "If after First Run Theater operations have commenced at the Downtown Cinema, such First Run Theater operations are downgraded so they are no longer a First Run Theater operation." Ms. McCammack stated that nowhere in the agreement does it say that they are required to be a First Run Theater. Mr. Ostoich stated that he just recently became aware of that. Macerich, the owner of Inland Center, owns malls throughout the United States and they are very experienced. O They have many, many theater operators that they deal with. "First Run Theater" is a term of art in the industry. The term "First Class Cinema" in the other agreements, he stated that he has not read the other agreements, but that language in his opinion is not universally understood. It may be fine, but it's not the term of art that's known in the Mayor and Common Council of the City of San Bernardino Page 10 Printed ///8/20/2 Joint Regular Meeting Minutes November 21, 2011 industry like "First Run Theater." Mr. Ostoich stated that hopefully there's a way for Regal and EDA to reconcile their issues with the language. He stated that they probably are intended to mean the same thing, but he was more comfortable using an accepted term. Ms. McCammack stated that she understood that, but their agreement does specifically say that the tenant shall have the sole right to select the motion pictures and other transactions exhibited in the theater and the landlord shall have no expressed or implied right of censorship over any motion pictures or other attractions exhibited in the theater. She stated that it doesn't indicate what they are and aren't allowed to run, and hopefully that is not in contradiction to anything in Mr. Ostoich's agreement. Mr. Ostoich stated that it would not be because if Regal doesn't operate a First Run Theater, they will be moving down the road to obtain a First Run Theater for the City and Regal will be operating at their own risk. He added that he believed the language issue could be resolved. Motion: Close public hearing and adopt Resolution. RESULT: ADOPTED [UNANIMOUS] MOVER: Rikke Van Johnson, Council Member, Ward 6 SECONDER: Tobin Brinker, Council Member, Ward 3 AYES: Marquez, Jenkins, Brinker, Shorett, Kelley, Johnson, McCammack 7. Continued Items A. Human Resources RES -2011-305 Resolution of the Mayor and Common Council of the City of San Bernardino Authorizing the Execution of Amendment No. 2 to the Consultant Services Agreement Between Atkinson, Andelson, Loya, Ruud, and Romo and the City of San Bernardino for Labor Negotiator Services in the Human Resources Department. Linn Livingston, Director of Human Resources, stated that the initial contract was with Irma Rodriguez Moisa for $30,000 for Police and Fire negotiation services. She stated that the first amendment was a request for an additional $15,000 for a total of $45,000. This is the second amendment and they are requesting an additional $30,000 for a total of $75,000, which is due to the ongoing negotiations with the firefighters. She stated that staff is hopeful that this will be enough to fulfill the contract. Discussion ensued and concerns raised by the Council included the use of an outside consultant and the process that was followed. Council Member/Commissioner Kelley stated that he would be voting "no" on this item. o He stated that someone from the outside needed to be hired to be independent and give an honest objective argument and he would prefer they go to arbitration. Motion: Adopt Resolution. Mayor and Common Council of the City of San Bernardino Page Il Printed 111812011 Joint Regular Meeting Minutes November 21, 2011 RESULT: ADOPTED [4 TO 31 MOVER: Chas A. Kelley, Council Member, Ward 5 SECONDER: Rikke Van Johnson, Council Member, Ward 6 AYES: Virginia Marquez, Tobin Brinker, Fred Shorett, Rikke Van Johnson NAYS: Robert D. Jenkins, Chas A. Kelley, Wendy J. McCammack 8. Staff Reports A. City Attorney Budget Amendment for the Office of the City Attorney to Pay Billings from Outside Legal Counsel for Services Rendered and to Pay Litigation Expenses Previously Incurred City Attorney Penman stated that the source of the money for the previous agenda item (7A) was the General Fund, General Government, Professional/Contractual, Non - departmental, FY 2011/12 budget. He stated that the budgeted amount in that account is $1,387,700, reduced by the $75,000 that was just approved for Agenda Item No. 7A, leaving a balance of $520,256. Mr. Penman stated that the money will be paid eventually whether it is paid voluntarily or the court orders the City to pay it. If the City is sued and the court orders the City to pay this amount of money, in addition to having to pay the O amount that is due under the contracts, it will most likely also include interest, attorney's fees and court costs for the failure of the City to honor its contractual obligations. Council Member/Commissioner McCammack stated that her concern is that there are several large pots of money in the City's budget that would be insurance against large settlements required to be paid by the City and one of those is in the Liability Reserve Fund, which has $3 million. If they can't invest the amount of money either through a direct budget amendment into the City Attorney's budget, or even as a potential loan similar to what was done last year, then that $3 million will not be enough to cover settlements and judgments that come forward. Council Member/Commissioner Jenkins stated that the Council has approved these contracts and they need to honor them. He asked if it is possible to approve the City Attorney's request out of the General Fund, General Government, Professional/ Contractual, Non -departmental, FY 2011/12 budget. Terrence Beaman, Assistant Finance Director, stated that they could do that based on direction from the Council. Motion: Take $140,884.93 from the General Fund, General Government, Professional/ Contractual, Non -departmental, FY 2011/12 budget and that the remainder of $622,652 be taken from the Litigation/Outside Counsel ® budget. Public Comments: Matt Korner, San Bernardino, CA. Mayor and Common Council ojthe City ojSan Bernardino Page 12 Printed 11182012 Joint Regular Meeting Minutes November 21, 2011 RESULT: FAILED [3 TO 41 MOVER: Robert D. Jenkins, Council Member, Ward 2 SECONDER: Chas A. Kelley, Council Member, Ward 5 AYES: Robert D. Jenkins, Wendy J. McCammack, Chas A. Kelley NAYS: Marquez, Brinker, Shorett, Johnson Motion: RESULT: MOVER: SECONDER: AYES: NAYS: Fund request from the City Attorney's Office FY 2012/13 budget. FAILED 13 TO 41 Wendy J. McCammack, Council Member, Ward 7 Chas A. Kelley, Council Member, Ward 5 Robert D. Jenkins, Chas A. Kelley, Wendy J. McCammack Virginia Marquez, Tobin Brinker, Fred Shorett, Rikke Van Johnson 9. Community Development Commission A. Economic Development A2ency Homebuyer Assistance Program Report for the Quarter Ending June 30, 2011; Authorization for Affordable Housing Solutions (AHS) to Serve as the Lender for Homebuyer Assistance Program (HAP) Loans Consensus Motion: Receive and file Quarterly Report of the Homebuyer Assistance Program (HAP) activities for the Redevelopment Agency of the City of San Bernardino and authorize Affordable Housing Solutions (AHS) to serve as the lender of HAP loans. B. Economic Development Agency Loan Monitoring Status Report for the Period Ending June 30, 2011 Consensus Motion: Receive and file Loan Monitoring Quarterly Report for the Redevelopment Agency of the City of San Bernardino. C. Economic Development Agency Covenant Monitoring Quarterly Status Report for the Period Ending June 30, 2011 Consensus Motion: Receive and file Covenant Monitoring Quarterly Report for the Redevelopment Agency of the City of San Bernardino. Mayor and Common Council of the City of San Bernardino Page 13 Printed 1118/1011 Joint Regular Meeting Minutes November 21, 2011 D. Economic Development Agency Discussion and Update on the Status of the Proposed Regal Lease Transaction for the Downtown Cinema Project and Community Development Commission Recommendations to the San Bernardino Economic Development Corporation Emil Marzullo, Interim Executive Director of the Economic Development Agency, stated that the issue is that the property in which the former Cinema Star is located is actually under the ownership of the Economic Development Corporation. He stated that the lease transaction will be conducted by the Economic Development Corporation Board of Directors immediately following the Council meeting, and the Council could either recommend in favor or in opposition to the EDC's approval of that particular lease. Mr. Marzullo gave an overview of the project. Mr. Marzullo stated that his recommendation is to take public comment, move the item to an advisory vote of council, and move it forward to the EDC. His recommendation is that the Regal lease approval be subject to some minor discrepancy cleanup. No substantive issues, but some minor issues of clarification. Mr. Marzullo stated that they spent 4 months dealing with Macerich on some issues and those are some of the issues that are inconsistent. He stated that there are inconsistencies with wording - "first class" theater versus a "first run" theater. Regal prefers "first class." They attempted to get Macerich to change their wording from "first run" to "first class" to be consistent and they would not do so. Mr. Marzullo stated that the issue is with the development agreement that was put in place by Macerich and the City back in 1996. They did get Macerich to recognize that there is a theater project emerging downtown and they have had 16 years at the Inland Center to put in a theater if they wanted to, but they have not. Public Comments: Matt Korner, San Bernardino, CA; Fatimah L. Thomas, San Bernardino, CA; Andrew Machen, San Bernardino, CA; Rabbi Hillel Cohn, San Bernardino, CA; Susan Longville, San Bernardino, CA; Warner Hodgdon, San Bernardino, CA, submitted into the record a memorandum addressed to the Mayor/Council, CDC, SBEDC Members, Commission and Directors, dated Monday, November 21, 2011, which included a list of 13 attachments regarding the Regal Theater; Jim Smith, San Bernardino, CA; Mary Schnepp; Lillice Anderson, San Bernardino, CA; Judy Brewer; Stephanie Allen, San Bernardino, CA. Steve Onstot, Deputy City Attorney, provided an in-depth analysis of the project. He continued by reviewing points outlined in an email dated November 16, 2011 to James Penman, Stephanie Easland, and Henry Empeno, which was submitted into the record. Mayor and Common Council of the City of San Bernardino Page 14 Printed 111812012 Joint Regular Meeting Minutes November 21, 2011 City Attorney Penman stated that there are CEQA issues that have not been addressed and if the Council takes action it could result in serious personal liability exposure. Council Member/Commissioner McCammack stated that they are being asked to recommend a lease for which they have no development agreement and have no legal standing. Emil Marzullo stated that the development agreement has been written and submitted to the Community Development Department to schedule a hearing in the next few weeks. Council Member/Commissioner Kelley asked if this would preclude a multi-plex theater from opening on the north end. Mr. Marzullo stated that both the lease and the development agreement contains the language that they had approved in the ordinance amendment back in May or June so there is an allowance for a certain type and certain number of theaters at different places in the City. He stated that based upon the market research that was done, there is really only one place and one market for a "first run" theater in this City. There simply isn't the ticket capacity within the market region to have two "first run" theaters. If Regal is there and is successful it's very unlikely you will see a secondary market, either first or second run, anywhere else within the City or at the borders. Q Mr. Kelley stated that he understood what Mr. Marzullo believed to be true based on the education he shared with them recently that he had been receiving after multiple years working on movie deals. He stated that we are still challenged with drawing residents downtown and asked how many screens Regal will have if the Council approves this action. Mr. Marzullo stated that there will be 14 screens. Mr. Kelley asked if someone could open a theater on the north end. Mr. Marzullo advised that the language states that the City may permit other theaters in the City. It needs to be a minimum of four screens at other locations. In other words, you couldn't come in and do a one -screen or two -screen theater. Mr. Kelley asked if someone could open ten screens on the north end of the City. Mr. Marzullo answered in the affirmative. Mr. Kelley asked where that statement was noted in the document. He stated that he was interested in hearing what Mr. Sabo would advise this body regarding the statements that were made by the City Attorney. Mr. Marzullo advised the Council that he had misstated. He stated that the ordinance that has been approved would not allow ten, it would allow a maximum of four, and the language they need to reconcile is the language within the lease and the development agreement where there are some inconsistencies. You could have a theater of up to four Mayor and Common Couned of the City of San Bernardino Page 15 Printed 1/1812012 Joint Regular Meeting Minutes November 21, 2011 screens, but not exceeding that in other locations. In the downtown core, which they have defined, you may only have a multiplex theater greater than that. Agency Counsel Sabo stated that that is one of the inconsistencies that he noticed, as did Mr. Onstot, and that is one of the things they need to reconcile. As has been pointed out, Regal uses the term "first-class" and Macerich/Inland Center Mall uses "first run." We have an ordinance that was adopted this past summer that creates a downtown theater district that places no limitation on the size of theaters in the downtown area and outside of that, it is a limitation of four. Regal has added a requirement, which he didn't know if it was in addition to or in lieu of that four, where they said 3,000 square feet and 200 seats. There are several theaters that are below 3,000 square feet and 200 seats and most average greater than that. The largest ones are about 450-480 seats. He stated that he did not know how that is going to be resolved other than he knows that they are not going to allow the City to sign a document that is going to create a problem if the "first class" becomes a "second run" and then allows Inland Center Mall to develop a theater. Council Member/Commissioner Jenkins asked why the development agreement did not go to the Planning Commission before the lease. Mr. Sabo stated that that is one of the inconsistencies. When the lease was drafted and that language was first inserted, it does contemplate at or about the same date that the development agreement would be in effect. That is one of the things that has to be pointed out to Regal; they are not on that same track and there is going to be a lapse in time in the best case. In the worst case, maybe the development agreement does not get approved. This development agreement deals with two things, as was pointed out by the City Attorney's office, the living wage requirement and the entitlement issues. Mr. Sabo stated that as the documents came forward in one package, there were issues that were being resolved, and still need to be resolved between the two documents. He stated that what was contemplated to be almost a simultaneous approval simply is not available at this time. As far as the construction schedule, Regal has to be aware that there is a risk to them if there is no development agreement. Once Regal knows that there is no development agreement as of the date of this lease, and cannot be, their reaction may be to delay it or to proceed. If that does occur, he still wants to be able to advise the EDC Board of the possible risk if they proceed and there is no development agreement. Council Member/Commissioner Jenkins asked. why this was coming before the Council now if there is a possibility of delay and there are inconsistencies. Mr. Sabo stated that they want to get the process going. They want to get comments from the City Attorney's office, the Council, and the public, and they want the opportunity to work out the issues. Council Member/Commissioner Jenkins asked if there was an example of any ^ government body that has taken this approach on something like this in the region, in the State of California, or in the City's history. Mayor and Common Council ofthe City of San Bernardino Page 16 Printed 1/18/2012 Joint Regular Meeting Minutes November 21, 2011 Mr. Sabo stated that the closest thing is the Stater Bros. distribution center where that was already constructed and when construction started and the development was approved, their concern was that they did not want any additional changes in the City zoning to affect what they may do later. At that same time the City Council approved three or four development agreements with Hillwood for their industrial projects where most, but not all, had already been built. Again, they did not want to see a zone change or a General Plan change that would affect them after they were built. City Attorney Penman stated that neither of those projects was relying on public funds. Mr. Sabo stated that there were tax increment reimbursement agreements. Mr. Penman clarified that that was not the kind of funding they would be providing for the theater. Mr. Sabo stated that that was correct. Council Member/Commissioner Jenkins stated that he is concerned with a monopoly. He did not think they would allow any other business to open up in the City and dictate to them that they would be the only one. He stated that he was concerned that the word "inconsistencies" is repeated throughout the agenda item; however, the SBEDC is the one who is going to put themselves out on the line for that. He asked why Exhibits A -D were © not included in the backup. Mr. Marzullo stated that Exhibits A -D were included in the documents. Exhibit J is not included because it is the restaurant reconfiguration. They don't have all the tenants for the restaurant so they cannot show a configuration until they have the tenants and know how the space is going to be built out. Mr. Jenkins advised that none of the Council members received Exhibits A -D. He questioned how he could make a recommendation to SBEDC if he didn't have the document. Mr. Marzullo stated that they had been sent to the Council Office via e-mail. Mr. Penman advised that the Council members are individually vulnerable. Mr. Sabo stated that there is some work yet to be done. By approving this in concept the Council would be authorizing them to move forward and continue to negotiate, draft, and work out the last details. If they do not come to any conclusion, they would not bring back the final form. He stated that they hope they can resolve the issues within 30 days. Regal has some changes they want to make also. He stated that approval in concept would be fine. © Mr. Marzullo responded to the questions brought up by Mr. Onstot in his memo dated November 16, 2011. Mr. Penman argued the accuracy of Mr. Marzullo's comments. Mayor and Common Council of the City of San Bernardino Page l7 Printed 1118/1011 Joint Regular Meeting Minutes November 21, 2011 Council Member/Commissioner Brinker stated that he did not get Mr. Onstot's memo until late this evening and noticed it was written in the morning on Wednesday, November 16, 2011. He stated that this is a big decision and this is a project they have been working on for close to a year now. He stated that he is a member of the EDC and his concern is that there could be some legal liability. He asked if he could sit down with Mr. Sabo in closed session to ask him some legal questions. It was the consensus of the Council to amend the motion to add the words "in concept." Motion: The Community Development Commission of the City of San Bernardino recommends to the San Bernardino Economic Development Corporation approval and final execution of the proposed Regal Lease for the Downtown Cinema Project, in concept. RESULT: ADOPTED [4 TO 31 MOVER: Virginia Marquez, Council Member, Ward 1 SECONDER: Rikke Van Johnson, Council Member, Ward 6 AYES: Virginia Marquez, Tobin Brinker, Fred Shorett, Rikke Van Joh NAYS: Robert D. Jenkins, Chas A. Kelley, Wendy J. McCammack E. Economic Development Agency CDC -2011-57 Resolution of the Community Development Commission of the City of San Bernardino Approving and Authorizing the First Amendment to Contract Dated July 21, 2010, the 2010 -HUD Section 108 Loan Refinance Contract Documents for Implementation of Substitution of Collateral and Authorizing the Interim Executive Director of the Redevelopment Agency of the City of San Bernardino ("Agency") to Execute the First Amendment and Related Documents for Implementation of the First Amendment 2010 -HUD Section 108 Loan Refinancing for Loan Guarantee Assistance Under Section 108 of the Housing and Community Development Act of 1974, as Amended, 42, U.S.C. §5308 for Series HUD 2010-A Certificates (CDBG Section 108 Contract No. B -96 -MC -06-0539) (Central City North Redevelopment Project Area). Council Member/Commissioner McCammack stated that she would abstain because the item pertained to the Uptown Redevelopment Project Area. She left the Council Chambers. Public Comments: Warner Hodgdon, San Bernardino, CA. Motion: Adopt Resolution. U Mayor and Common Council of the City of San Bernardino Page 18 Printed 111812012 Joint Regular Meeting Minutes November 21, 2011 RESULT ADOPTED [5 TO 11 MOVER: Tobin Brinker, Council Member, Ward 3 SECONDER: Virginia Marquez, Council Member, Ward 1 AYES: Marquez, Jenkins, Brinker, Shorett, Johnson NAYS: Chas A. Kelley ABSTAIN: Wendy J. McCammack F. Economic Development AgencV RES -2011-306 Resolution of the Mayor and Common Council of the City of San Bernardino Approving and Authorizing the First Amendment to Contract Dated July 21, 2010, the 2010 -HUD Section 108 Loan Refinance Contract Documents for Implementation of Substitution of Collateral and Authorizing the City Manager to Execute the First Amendment and Related Documents for Implementation of the First Amendment 2010 -HUD Section 108 Loan Refinancing for Loan Guarantee Assistance Under Section 108 of the Housing and Community Development Act of 1974, as Amended, 42, U.S.C. §5308 for Series HUD 2010-A Certificates (CDBG Section 108 Contract No. B -96 -MC -06-0539) (Central City North Redevelopment Project Area). Council Member/Commissioner McCammack stated that she would abstain because the item pertained to the Uptown Redevelopment Project Area. She left the Council Chambers. Motion: Adopt Resolution. RESULT: ADOPTED [5 TO 11 MOVER: Tobin Brinker, Council Member, Ward 3 SECONDER: Virginia Marquez, Council Member, Ward 1 AYES: Marquez, Jenkins, Brinker, Shorett, Johnson NAYS: Chas A. Kelley ABSTAIN: Wendy J. McCammack G. Economic Development Aeency CDC -2011-58 Resolution of the Community Development Commission of the City of San Bernardino To: 1) Approve and Authorize the Transmission of the Preliminary Report to Each Affected Taxing Entity; And, 2) Forward the Draft Redevelopment Plan to the Planning Commission of the City of San Bernardino for Their Report and Recommendation for the Merged, Amended, and Restated Redevelopment Plan for the Proposed San Bernardino Merged Redevelopment Project Area B (State College, Central City West, Northwest, Mount Vernon Corridor, 40Th Street Redevelopment Project Areas) and Added Areas. ® Council Member/Commissioner McCammack stated that she would abstain because the item pertained to the Uptown Redevelopment Project Area. She left the Council Chambers. Motion: Adopt Resolution. Mayor and Common Coancil ofthe City gfSan Bernardino Page 19 Printed 111812011 Joint Regular Meeting Minutes November 21, 2011 RESULT: ADOPTED 15 TO 01 MOVER: Tobin Brinker, Council Member, Ward 3 SECONDER: Virginia Marquez, Council Member, Ward 1 AYES: Marquez, Jenkins, Brinker, Shorett, Johnson ABSENT: Chas A. Kelley AWAY: Wendy J. McCammack H. Economic Development Aaency CDC -2011-59 Resolution of the Community Development Commission of the City of San Bernardino To: 1) Approve and Authorize the Transmission of the Preliminary Report, Including Those Portions Dealing with the Uptown Redevelopment Project Area, to Each Affected Taxing Entity; And, 2) Forward the Draft Redevelopment Plan, Including Those Portions Dealing with the Uptown Redevelopment Project Area, to the Planning Commission of the City of San Bernardino for Its Report and Recommendation for the Merged, Amended, and Restated Redevelopment Plan for the Proposed San Bernardino Merged Redevelopment Project Area B and Added Areas. Council Member/Commissioner McCammack stated that she would abstain because the item pertained to the Uptown Redevelopment Project Area. She left the Council Chambers. Motion: Adopt Resolution. RESULT: ADOPTED [5 TO 01 MOVER: Tobin Brinker, Council Member, Ward 3 SECONDER: Virginia Marquez, Council Member, Ward 1 AYES: Marquez, Jenkins, Brinker, Shorett, Johnson ABSTAIN: Wendy J. McCammack ABSENT: Chas A. Kelley 10. Public Comments on Items Not on the Agenda Betty Jean Long, San Bernardino, CA, stated that she was the victim of a scam regarding her social security. Carol Donnelly, San Bernardino, CA, stated that the downtown area is considered unsafe because there are not enough police patrols; stated that she was sad to hear that the new council person will not be seated until March; and the remainder of her time was used to make negative statements against the Mayor. Nicole Smith, program coordinator for the African American Health Institute in San Bernardino County, stated that the Department of Mental Health has been conducting a statewide community based project to better understand the complex issues of major ethnic population needs for prevention and early intervention and the results could be viewed at www.aahi-sbc.ore. Mayor and Common Council ojthe City ojSan Bernardino Page 20 Printed 1/18/2012 Joint Regular Meeting Minutes November 21, 2011 Billy Joe Chacon, San Bernardino, CA, spoke in opposition to the new movie theater. Haywood Jackson, read Ezekiel Chapter 34 of the Bible. 11. New Business A. CDBG Funding for Legal Aid of San Bernardino Motion: Item arose after the posting of the agenda and there is a need to take immediate action. RESULT: ADOPTED [UNANIMOUS] MOVER: Virginia Marquez, Council Member, Ward 1 SECONDER: Chas A. Kelley, Council Member, Ward 5 AYES: Marquez, Jenkins, Brinker, Shorett, Kelley, Johnson, McCammack Council Member/Commissioner Marquez stated that she discovered that the Legal Aid Society is short on cash and she was hoping they could get $20,000 from unexpended CDBG funding. Public Comments: Roberta Shouse, Legal Aid. Council Member/Commissioner Brinker asked how much money there is in unexpended CDBG funds. Brandon Mims, Project Manager/Assistant of the City Manager, stated that there is no CDBG funding that is not currently allocated to an activity in the current 2011/12 action plan. Council Member/Commissioner Kelley asked if there was a fund balance. Mr. Mims stated that he did not have that information -that was something they were working through with EDA. Council Member/Commissioner Brinker stated that in years past at the end of each year there is typically some money that has not been expended that carries over. He asked if staff had any sense of how much money was not expended from last year's budget. Terrence Beaman, Assistant Finance Director, stated that last year there was about $300,000 that was not expended and was carried over into this current year, so the original appropriation was about $3.2 million, plus the carryover, for a total of $3.6 million. He stated that those funds have entirely been allocated to projects. Mayor Moms clarified that all of those resources have been allocated to various projects and obligations and there is nothing at all that remains in terms of the commitments that have been made by the Council. Mayor and Common Council of the City ojSan Bernardino Page 21 Printed 111812012 Joint Regular Meeting Minutes November 21, 2011 Mr. Beaman stated that similar to prior years, there are always funds that are left over from the current year's activities that are not expended and those funds will go through a process of being carried over to next year's budget or used in the current year's budget, as needed. Mayor/Chairman Morris clarified that the motion was to use the "left over" resources that are unexpended from the current fiscal year. Council Member/Commissioner McCammack stated that as a matter of policy, any unexpended funds where a check has not actually been cut gives the Council the authority to then reprogram that to whatever they choose in terms of what is legally required for CDBG funds, so they could use anything that is left over and is unappropriated. Mr. Beaman stated that the Council had two options. The first option would be to take what they currently have allocated in the budget and reallocate it. Second, as in prior years, they could wait until midyear or at the end of this current budget year and depending upon what is left over they could also at that time reallocate what they have notexpended. Emil Marzullo, Interim Executive Director of the Economic Development Agency, stated that they had run the CDBG program for many years. He stated that the Council will need to adopt in the motion that this falls under the criteria of urgent need -a need that has not existed for 18 months -and the City will then have an easier time qualifying that particular expenditure. Motion: Approve the allocation of $20,000 of CDBG funding to the Legal Aid Society of San Bernardino and that the check be issued immediately due to the urgent need. RESULT: ADOPTED [UNANIMOUS] MOVER: Chas A. Kelley, Council Member, Ward 5 SECONDER: Wendy J. McCammack, Council Member, Ward 7 AYES: Marquez, Jenkins, Brinker, Shorett, Kelley, Johnson, McCammack 12. Adjournment The meeting adjourned at 8:49 PM. The next joint regular meeting of the Mayor and Common Council/Community Development Commission is scheduled for 1:30 p.m., Monday, December 5, 2011. RACHEL G. CLARK, CMC City Clerk QByCI�K,:A�� rI® Linda Sutherland Deputy City Clerk Mayor and Common Council ofthe City of San Bernardino Page 22 Printed 1/18/2012