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